As an observer of two major disputes that started in the Northern District of California, Apple v. Samsung and Oracle v. Google, I have repeatedly taken issue with Judge Lucy Koh's unwilligness to invalidate bad patents, but all in all I'm still glad she has been nominated for the Ninth Circuit rather than Judge William H. Alsup, her San Francisco-based colleague. Judge Koh has always dealt very professionally with appellate decisions reversing her rulings, which is more than Judge Alsup can say at this stage.
The biggest problem facing the ongoing Oracle v. Google retrial is that Judge Alsup doesn't seem to have swallowed the fact that the IP-specialized Federal Circuit found it hard to believe how one could get copyright law as wrong as he did in this case ("confused" is what one of the appellate judges said at the December 2013 hearing).
For purely emotional reasons, this retrial appears rigged to me. Various pretrial decisions didn't seem evenhanded to me, with Google perhaps benefiting from Judge Alsup's frustration with the fact that his highest-profile IP ruling was nullified by three higher judges than him. Judge Alsup would, of course, benefit from a final decision in Google's favor in the sense that his 2012 non-copyrightability blunder would then be deemed inconsequential in retrospect.
This is the way in which Judge Alsup proposes to inform the jury of the fact that there has been a previous trial:
"The trial judge held, however, that the declaring lines of code and their structure, sequence, and organization were not copyrightable under the Copyright Act. On appeal, the Court of Appeals for the Federal Circuit disagreed with regard to copyrightability and held that the declaring lines of code and their structure, sequence, and organization were copyrightable and sent the case back here for this trial on fair use and, depending on that verdict, for damages and other relief. This is the trial we are now having."
This just appears to be a statement of facts, but its net effect is highly prejudicial from Oracle's point of view. I just spotted this filing by Oracle's lawyers, which warns Judge Alsup that the way he plans to influence the jury would in and of itself turn this trial into a mistrial (this post continues below the document):
16-05-12 Oracle Objections Re. Instruction on Procedural History by Florian Mueller
Oracle's lawyers essentially argue that jurors will place more faith in Judge Alsup's assessment (as they see him every day) than in that of an appeals court that is a few thousand miles away and won't appear in San Francisco to explain why Judge Alsup got the copyrightability part completely wrong. For example, this could lead jurors to believe Google acted in good faith. Judges are not allowed to appear as witnesses in their cases, and this is not a question of the hat they wear at a given time but of what they say:
"If the Court reports its views to the jury on the copyrightability of the declaring code and SSO, and indicates that the jury hung in the first trial, it will be tantamount to calling the Court as a witness. [...] The only way Oracle could counter such testimony is by calling Judges O'Malley, Plager, and Taranto as witnesses to tell the jury that the Court got it completely wrong, and in fact that the declaring code and SSO are copyrightable. But no judge should be a witness, pure and simple. And a judge should not become a witness inadvertently through the act of informing the jury of his views on a legal issue that already has been decided. Such testimony is inadmissible under Rule 605."
I doubt that Oracle's lawyers would have put it this bluntly ("the Court got it completely wrong") if they believed they were getting a fair trial in Judge Alsup's court.
Oracle cites a former Federal Circuit decision, according to which a district judge is reasonably expected to "put[] out of his or her mind previously-expressed views or findings determined to be erroneous." (TriMed, Inc. v. Stryker Corp., which quotes a Ninth Circuit case). I, too, believe that the proposed jury instruction on procedural history falls short of that standard. Judge Alsup's 2012 decision has been nullified, not only by the Federal Circuit but practically also by the Supreme Court, which declined (despite massive campaigning by Google and its allies) to reinstate the original decision.
Oracle also fears, for understandable reasons, that any reference to a former jury having deadlocked over the "fair use" issue could hurt. The proposed instruction could be interpreted as indicating that fact but it doesn't say so explicitly. Therefore, Oracle's objection appears stronger to me with respect to the copyrightability question.
The filing notes that Judge Alsup greeted Jonathan Schwartz, whose disastrous stewardship of Sun Microsystems was once criticized by Oracle founder Larry Ellison and who simply wants to settle accounts with Oracle by supporting Google here, with the words "Welcome again." I wonder whether Judge Alsup said the same to other witnesses who came back.
On a website that spreads -- without a factual basis -- fear, uncertainty and doubt about the implications of this case, I read that Judge Alsup told jurors not to inform themselves about this case on the Internet (which they're simply not allowed to do, though I guess it's sometimes hard to prevent) because there was "propaganda" out there about it "on both sides." What appears evenhanded is actually just another biased misrepresentation by Judge Alsup. There's lots of "sky falling down because of APIs" propaganda out there, and to that extent I agree that smart jurors shouldn't pay any attention to it. However, I'm not aware of anything comparable in Oracle's favor. Saying "on both sides" is the opposite of evenhanded when it's simply not the truth.
There are only two kinds of bloggers who have agreed with some of Oracle's claims. There are a very few lawyers who write about this totally nonjudgmentally, without the slightest indication of them being Oracle supporters. They are neutral, as opposed to Google-friendly bloggers affiliated with Google-funded organizations and long-standing Google allies of the "right or wrong, my company" kind writing about it. And then there's this blog here.
Please bear with me while I'm repeating the following: I haven't done any work for Oracle in quite a while, I have no reason to assume today that I'll ever do any again (I'll release two game apps this year and that's my professional future), and I have taken consistent positions ever since the case started. This lawsuit was filed not long after I had been fighting against Oracle's acquisition of Sun Microsystems on the antitrust front. Despite having embroiled in a bitter fight with Oracle, I realized early on that Oracle had a point here (though I usually like Google a lot, especially Android). I still hold those views even though working with Oracle on standard-essential patent matters is a thing of the past for me.
An opinionated, independent view is not "propaganda" by any stretch of the imagination. This blog got copyrightability right when Judge Alsup got it wrong, and three higher judges than Judge Alsup totally agreed with me (and the top U.S. court didn't elect to hear the case in order to disagree). The truth is on my side, not his. And when all is said and done, people will see that this blog also got "fair use" right to a greater extent than he did/does.
Having invested heavily in mobile app development (I promise you that you'll see a really groundbreaking result soon), I'm concerned that Judge Alsup's "fair use" instructions threaten to portray software developers like me as second-class copyright holders, and I'm going to fight for our rights and I'll oppose the baseless FUD according to which communism is the right answer to the API question. Yes, access to APIs is sometimes very important. This case is not about whether one can write apps for an existing platform. It's not even about compatible reimplementations. It's about an "embrace-extend-extinguish" approach to APIs. If anyone ever tried to turn APIs into a strategic weapon, compulsory licensing on fair, reasonable and non-discriminatory terms would be the more appropriate vehicle than non-copyrightability and "fair use" of a kind that would be extremely unfair to honest software developers.
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