Despite the fact that Google's incorporation of more than 10,000 lines of Oracle's Java API declaring code into Android does not merely fall short of fair use criteria but is simply the exact opposite of fair use, a San Francisco jury, misguided by Judge William H. Alsup, misinformed by Google's manipulative attorneys and misled by questionable witnesses, found in favor of Google in May.
Thereafter, Judge Alsup, who could hardly have done a worse job handling this case, entered final judgment. At the same time, he wrote a JMOL ruling (denying the parties' pre-verdict motions for judgment as a matter of law) that, instead of actually addressing the substantive issues raised by Oracle, was a public letter to the appeals court of the "please don't overrule me again" kind, demonstrating his fear that the Federal Circuit will once again clarify that the law is what is and not what Judge Alsup, labeled by a lawyer on Twitter as a "sore loser" (in light of the previous appellate decision in Oracle's favor), wanted the jury to think it is.
While it's very obvious that this case will go back to Washington, DC, Oracle has just filed two motions. The first one is a renewed motion for JMOL (this post continues below the document):
There is no question that Judge Alsup will deny it. His aforementioned open letter made that clear. He's now just going to hide behind the jury since he accomplished his objective: a verdict in Google's favor. But he may just have to go through the motions process now, and Oracle has requested that a hearing be held in August.
The JMOL question is extremely important because it's hard to imagine a "fair use" case where JMOL would be more warranted than here. As I've talked about that on a few occasions and will talk about it some more during the appellate proceedings, I'd now like to focus on Oracle's motion for a new trial since it raises a number of serious issues due to which the "final judgment" can't and most probably won't stand. Here's Oracle's motion (this post continues below the document):
Prior to raising several specific issues, Oracle reserves the right to pursue other bases for a new trial on appeal. Now, the issues raised explicitly in the motion:
The first argument for a new trial is that "the verdict was against the weight of the evidence." This is basically the JMOL argument, just in the context of a Rule 59 motion.
The second argument is that just after Oracled rested its case, Google announced that a full version of Android Marshmallow (one of the Android versions at issue in this case) would be released as part of ChromeOS--including the Google Play Store, i.e., all Android apps. Oracle argues that Google withheld this information (given that it presumably had been working on that project for some time) and failed to make disclosures in discovery requests.
Here's why this is a big problem: ChromeOS is a desktop/notebook/netbook operating system. That's just another huge market in which it's now competing with Java; more specifically, with Java SE. It also shows that any distinction between mobile Java and Java in general makes no sense in the Android-Java context (when it comes to harm, transformative use etc.). It was a Google-Judge Alsup smokescreen in any event, but the smoke lifted with Google's announcement--at a time when Oracle no longer had any chance to inject this issue into the rigged trial.
Oracle rightfully demands a new trial in order to be able to "present its full case, including this newly discovered and improperly withheld evidence."
The third argument relates to how Judge Alsup improperly limited Oracle's evidence of market harm to the mobile phone and tablet computer markets. Oracle recalls how it filed a supplemental complaint last summer to bring up various other Android business areas such as Android Wear. Judge Alsup, however, sided with Google on a motion in limine and told Oracle that it would have "to sue on those new products in a future trial."
The fourth argument is also about how the judge precluded Oracle's lawyers from making their strongest legitimate case. Google made the "Java was free and open" point more than thirty times in that trial, but the court did not allow Oracle to present an April 2007 email from Stefano Mazzocchi (then an Apache Foundation leader), which stated the following:
"This makes us *already* doing illegal things (in fact, Android using Harmony code is illegal as well)."
Judge Alsup required that key sentence to be redacted because it was, in his incorrect opinion, "too inflammatory and without foundation." That email actually had much more of a foundation than most of the key decisions Judge Alsup has made in this litigation so far. But the biggest problem is that Google's lawyers were able to elicit statements from Mr. Mazzochi (during examination) that he thought what Apache was doing was above board.
Those first four points are all very strong, but I personally feel very strongly about the fifth one as well. The fifth argument is that bifurcation prejudiced Oracle and that a new trial should be a single-phase trial on liability and damages.
When I saw Judge Alsup's bifurcation decision last year, I started to doubt that he was going to act fairly. And indeed, he turned out to be the most unfair judge I've ever watched in a high-profile case except in fictional movies, historic documentaries, or reports on some of the totalitarian regimes that still exist today.
Toward the end of that fifth section, Oracle says the following:
"And, bifurcation provided a structural incentive for the jury to return a defense verdict."
That is exactly right. I saw something on Twitter from one of the courtroom tweeters that indicates Judge Alsup told the jury something like "please don't let your desire to go home quickly influence your decision." Should Judge Alsup really have said so (and I wouldn't put it past him), it was a devious way of telling the jury to be smart, to get their lives back and to go back to making more money than (roughly) minimum wage.
The sixth part of Oracle's argument for a new trial is about documents that were excluded on hearsay grounds. Among other things, Oracle argues that the court "incorrectly excluded damning evidence of market harm solely because that evidence was in PowerPoint format."
All in all, the Oracle v. Google retrial was a total disgrace for the American court system, and while there are some well-liked and well-respected people who view this differently, I remain convinced that Judge Alsup will be overruled for good, by judges who are neutral, which he isn't, and smarter than him.
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