Monday, August 8, 2016

Google's integration of Android into Chrome makes a third Android-Java copyright trial 100% inevitable

About a month ago, Oracle renewed its motion for judgment as a matter of law against Google and brought a Rule 59 motion for a new trial. While such post-trial motions are common and expected in high-stakes IP cases, there's much more to it here.

Unless the parties settle, it's not just likely or very likely, but absolutely certain, that there will be (at least) a third Oracle v. Google Android-Java copyright trial.

Trust me: there will be one. The only question is whether it will result from

  • a potential decision by Judge Alsup that Google is guilty of serious discovery misconduct,

  • the appeals court overruling the trial judge again, or

  • a new lawsuit that Oracle would have to bring according to Google's position.

The first of these possibilities is much more likely than I initially thought. Judge Alsup will hold a post-trial motion hearing next week. It's a safe guess that he won't agree with Oracle on JMOL. It's also a safe guess that he'll disagree with various Rule 59 arguments that are based on his own pre-trial decisions. He's afraid of Oracle's appeal (this much is sure based on the way he denied JMOL a couple of months ago) but he's not going to say that he messed up. It's hard to think of any judge who would do that but even harder to think of a judge less likely to do it than him. But Google's misconduct actually provides him with a nice exit strategy. He can avoid the potentially huge embarrassment of being overruled twice in the same case by judges who are more powerful and more IP-savvy than him, and put the blame on Google.

I have no idea whether he will do that, but it would be a very appropriate and rational thing to do. And it would be convenient, too, because he could correct some of his pre-trial errors very elegantly without having to backtrack: it would simply be a whole new ball game, especially with respect to the admissibility of evidence relating to Android's non-mobile target markets. Even the question of whether a bifurcated trial prejudiced Oracle (in my opinion, it did, even massively) could be avoided and the third trial could, for whatever case management reason, be a single trial. Furthermore, evidence that Oracle wasn't allowed to use last time to counter some utterly dishonest statements by Google's lawyers could also be admitted in the event Google were to make certain statements again at the third trial.

Judge Alsup can either seize this splendid opportunity to correct some of his mistakes or he can make another huge mistake by letting Google's lawyers get away with what they've done, which is so bad that Oracle would be very likely to get a new trial on appeal (if it doesn't succeed on JMOL anyway, which it might and in my view should, but for the appeals court it would probably also be easier to just look at the integration of Android into Chrome and simply remand for a new trial).

For the huge, game-changing implications of Google's integration of Android Marshmallow into Chrome (i.e., Android is competing with Java SE on desktop and laptop computers, not just in mobile markets), may I refer you to my post on Oracle's Rule 59 motion. Simply put, the whole "fair use" analysis changes, especially with respect to market harm and "transformative" use.

In its July 20 opposition filing, Google essentially argued that it had no obligation to make any disclosures regarding the Marshmallow/Chrome project because it had provided information regarding the Google App Runtime for Chrome (ARC). Google basically said that the integration of Marshmallow into Chrome was just an evolution of ARC ("update"), which Oracle knew about and which was "outside the scope of the retrial." A week later, however, Oracle's lawyers filed a very powerful reply brief that exposes Google's ARC-related arguments as extremely flimsy (this post continues below the document):

16-07-27 Oracle Reply in Support of Motion for New Trial by Florian Mueller on Scribd

The first thing to consider here is that Marshmallow was part of the trial (in a February 16 follow-up trial order, Judge Alsup wrote that "Marshmallow shall be added to the named versions of Android to be in play at the trial") and there was no question about whether it contained the asserted material: Google conceded this much, and the jury was instructed accordingly ("it has already been established that [Marshmallow] used [...] the declaring code and [SSO: structure, sequence and organization] of 37 Java API packages"). That already makes it a very different situation from the one concerning ARC.

On the technical side, the most important difference is, as Oracle's reply brief points out, that ARC could not have passed Google's own Android compatibility test because lots of Android apps wouldn't work with it, and even those that do wouldn't run right away without modifications.

Oracle also notes that fact discovery closed before the orders on trial scope that Google claims put the Marshmallow/Chrome project outside the trial scope. But Google couldn't know at the time what the subsequent orders would be.

What I find disgusting is that Google's technical and economic experts told the jury things that make absolutely no sense in light of Marshmallow/Chrome:

  • Google's only technical expert at trial, Dr. Astrachan, said that Android includes "libraries [that] are designed specifically for the mobile platform, which is a different platform from where the 37 [Java SE] API packages came from." He meant that desktop and laptop computers are a different type of platform. But that's exactly the Chrome market.

  • Similarly, Google's economist Dr. Leonard said "the two products are on very different devices [...] Java SE is on personal computers. Android [...] is on smartphones." In his closing argument, Google's counsel said the same: "Android is not a substitute. Java SE is on personal computers; Android is on smartphones."

There cannot be the slightest doubt that the trial could have had a different result if Oracle had been able to counter those untruths with references to Marshmallow/Chrome.

I look forward to whatever the court reporters attending next week's motion hearing will observe. There's a good chance that Judge Alsup will be very angry with Google. If he is, then a retrial will loom large.

If not, Oracle has another silver bullet for its appeal.

But if everyone told Oracle that Marshmallow/Chrome was outside the scope of that trial, Oracle could and certainly (knowing that Oracle never quits in those kinds of disputes) would file a new complaint over newer Android versions. That would also lead to a third Oracle v. Google trial, though things would take a bit longer then.

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