Sunday, August 21, 2016

Don't blame Ars Technica for the inevitability of an Oracle v. Google Android-Java copyright re-retrial

It ain't over till it's over, and Oracle v. Google is very far from over.

At a Wednesday hearing, Judge Alsup told Google that it should have disclosed its Marshmallow Chrome project. As a follow-up to the hearing, he issued an order on Thursday, which I'll quote from and comment on below:

"By THURSDAY AUGUST 25, AT NOON, Christa Anderson, counsel for Google, shall submit a sworn statement explaining why the discovery responses referenced in Court yesterday were not updated, including the full extent to which counsel knew Google's intention to launch a full version of Marshmallow, including the Google Play Store, for Chrome OS."

This could be one last chance for Google to justify the unjustifiable and, which is what I guess is going to happen, for Google's lawyers to avoid consequences for themselves. Oracle's counsel claimed at the hearin g that "they" were "LYING" to the jury. At least that was the net effect of what happened. In a fairly recent post I quoted those lies.

But who is "they" in "they were LYING?"

The expert witnesses were instructed by Google's trial counsel. It's highly unlikely--if not simply implausible--that the expert witnesses were aware of the secretive Marshmallow Chrome project whne testifying.

The net effect of this was that the jury was being lied to. The requested declaration may shed some light on how this happened and on who has to accept responsibility. But Google and its lawyers are less interested in bringing the truth to light. What they'll try to do is to reinforce the points they made at the hearing about why they thought Marshmallow Chrome was outside the scope of the trial though the Marshmallow version of Android undoubtedly was at issue.

I'll comment on that declaration once it is filed. I presume it will be made public, at least large parts of it. For now I doubt that it will change anything with respect to the likelihood of a re-retrial. And the primary reason I doubt it is that Judge Alsup would be headed for another overruling, far worse than last time, if he denied Oracle's motion for a new trial even though the appeals court will then see very clearly that

  • Google's expert witnesses told the opposite of the truth about the single most important issue in the case (given that Marshmallow Chrome affects the "transformative use" analysis as well as the assessment of market harm) and

  • Google itself made it clear, and reporters and industry watchers clearly understood, that the integration of Marshmallow into Chrome is totally unrelated to the App Runtime for Chrome (ARC). I'll talk about the Ars Technica article and its implications further below.

In the event of an appeal, the appeals court will also get to see a list of other problems (I'm sure there would be an appeal on multiple grounds, which is also what Oracle announced after the spring retrial) and a consistent pattern of Oracle being disadvantaged by the judge. At the hearing he again sought to justify some of his decisions to limit Oracle's ability to present the full story to the jury with case management arguments. I've been watching this case for more than six years now and while Judge Alsup has put case management above the truth on various occasions, he has not even been perfectly consistent (for example, he didn't care in 2012 about wasting jury time instead of firstly ruling on copyrightability but then bifurcated merits and damages on remand) except that his case management decisions have always helped Google and harmed Oracle. That kind of consistency would also be easy for the appeals court to see, and let's not forget that the Federal Circuit is generally quite sympathetic to intellectual property right holders trying to enforce their rights against infringers.

"By the same date and time, Annette Hurst, counsel for Oracle, shall submit a sworn statement setting forth, after full inquiry, the full extent to which Oracle neglected to update its discovery responses by reason, in whole or in part, of one or more rulings by the judge."

The word "neglected" in the above passage is a bit strange. All dictionary definitions of the word show that it has a very negative connotation in terms of a failure to do something a careful person should have done. A non-judgmental term would have been "decided not [to update]" or something like that. He certainly was non-judgmental in the paragraph quoted further above concerning Google's statement, though in Google's case it's now clear that something was not disclosed that should have been disclosed, while in Oracle's case it's, at best, hypothetical (it's possible that no such thing exists at all but, above all, there doesn't appear to be the slightest indication of any wrongdoing). But I've seen far worse things in connection with this case. Maybe I'm just being hypersensitive after all that has already gone awry. (Again, I'll try my best to look at the proceedings relating to a re-retrial, unless Judge Alsup denies it and the appeals court orders it (in which case it would be absolutely impossible to have too much faith in his fairness), as if nothing had gone wrong before.)

Can this part help Google? I doubt this, too. At most Oracle's response might bring up stuff that would have to be discussed at a re-retrial. But the question of whether a re-retrial is necessary has everything to do with Google's conduct and nothing with Oracle's conduct.

"The same statement shall explain why counsel repeatedly represented that the Jones v. Aero/chem decision required an 'evidentiary hearing' when that decision, as it turns out, made no mention of an 'evidentiary hearing' and instead remanded because no 'hearing' or other consideration at all had been given to the issue of discovery conduct by the district judge."

Despite my other concerns and reservations, I took a quick look at that decision and I understand that decision and the circumstances leading to it just the way Judge Alsup also describes that precedent. What I don't know is what exactly Oracle's counsel said about that case at the hearing. So let's see what Oracle files.

This, again, is nothing that can have any bearing on the pressing need for a re-retrial.

"By the same date, counsel shall meet and confer and advise the Court whether the form of judgment should be amended to reflect that it is not a final judgment but a Rule 52(c) judgment on partial findings, given that Oracle is entitled to challenge further uses of Android herein."

This paragraph here is hard to interpret because everything depends on what will happen with respect to Google's decision to keep the Marshmallow Chrome project secret from Oracle's lawyers. What's certain, however, is that it reflects the fact this dispute could get substantially broader soon.

I don't have the slightest idea of how Oracle and Google's lawyers will address this one. In my opinion, it was a final judgment that must be set aside because Marshmallow was part of the case and the jury was being lied to. However, if the case continues, it might indeed make sense to present everything to the jury including other devices than just smartphones. That is more of a question of admissible evidence to me than anything else.

Ars Technica

In my previous post I already linked to and quoted from the Ars Technica article Google's counsel presented at the Wednesday motion hearing.

Oracle's counsel called Ars Technica "the premier publication in this industry." That's hyperbole, and I attribute it to two factors. One, she obviously wanted to give that article maximum weight at the motion hearing. Two, she had written an op-ed for Ars Technica after the spring retrial.

Ars is certainly influential and widely read. And one could probably define a set of criteria based on which it would be number one. But it's not number one in this industry by all measures and standards. Also, its coverage of Oracle v. Google is neither enlightening nor fair.

Interestingly, when the author of that Ars Technica article heard about how Oracle tried to use it at the trial, he immediately felt compelled to portray another story, but for lack of knowledge about what was really at issue in the motion hearing, he actually just confirmed again why his article helps Oracle:

It is all about the underpinnings. It's about the inner workings.

That's because the App Runtime for Chrome (ARC), which according to Google could not even have passed its Android compatibility test, really was separate from Android, while the Marshmallow Chrome project serves as a great unifier.

What shocked Oracle's lawyers? Not the fact that Google would in some way, shape or form make Android apps run on Chrome. That was old news. The shocker was that Google would actually incorporate the Android Marshmallow APIs into Chrome: APIs that contain APIs Google should have licensed from Oracle a long time ago.

Many people out there have been misled. If all software developers truly understood what this case is about and what it is not (for example, the retrial was not about whether APIs are protected but just about whether Google's trial counsel could manipulate a jury by presenting witnesses who made it sound like everything related to Java, especially the APIs, was for the taking), Ars Technica's Ron Amadeo wouldn't have had to try to put his article into perspective. I'll talk about implications for developers again on some other occasion. The timing of that will very much depend on procedures. I, for my part, would be shocked if the request for a re-retrial was denied.

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