Wednesday, August 17, 2016

Judge may order a new Oracle v. Google retrial over evidence unwisely withheld by Google

Thanks to Twitter coverage by Mike Swift (MLex), Sarah Jeong (Motherboard, EFF) and Ross Todd (The Recorder), I just had the opportunity to "follow" the Oracle v. Google post-trial motion hearing in the Northern District of California. Since I already shared my observations, opinions and predictions last week, I can keep this post here brief:

  • As expected, Judge Alsup is not going to agree with Oracle on JMOL. He continues to believe that the jury had a reasonable basis for reaching its verdict based on the evidence and testimony it saw/heard.

  • I'm pleased to see that Judge Alsup, Google and Oracle all affirmatively agreed with me today that Oracle could, as a last resort, bring a new copyright infringement lawsuit to raise issues that were kept out of this year's retrial. Such consensus is unusual. Google tried to somehow nuance its concession by saying "collateral estoppel issues aside," but it's unclear how that would work--not just to me but, more importantly, also to Judge Alsup.

  • Based on the quotes I read on Twitter, I initially felt that Judge Alsup was not quite inclined to order a new trial. But Oracle's counsel, Orrick's Annette Hurst, didn't give up. She pointed to how Google's lawyers had "lied" to the jury and committed "fraud" by centering a transformative-use argument around differences between personal computers and smartphones. She also dealt a blow to Google's argument that the integration of the Marshmallow APIs into Chrome OS was essentially just the same as the Android App Runtime for Chrome (ARC), and in this context she read parts of this Ars Technica article aloud. Here's an unbelievably powerful passage that makes Google's ARC-based excuse downright ridiculous:

    "The real shocker here is that this release of Google Play on Chrome OS is not based on ARC. Zelidrag Hornung, the engineering director of Chrome & Android, filled us in on the details: "We have redone this completely differently. There are no connecting points between the two projects (ARC and today's announcement) from an implementation perspective."

  • Judge Alsup told Google that at the time it decided not to disclose its Marshmallow Chrome project, "this was possibly an important point." And while he made it clear that he wasn't yet at the point of expressing his position on the new trial motion, a re-retrial definitely is a possibility, especially since he also told Google's counsel: "If I had been in your position, I would have disclosed it."

    It's also important to consider that Marshmallow was part of the retrial and the jury verdict was not about particular devices but about Android versions up to and including Marshmallow. I noted on Twitter that this is a key difference between Oracle v. Google and the various Apple v. Samsung trials, where juries made device-specific determinations on the merits and on damages.

All in all, the things I read on Twitter suggest that Judge Alsup was a whole lot more evenhanded today than at any point during the retrial and its preparations. I do believe that this "fair use" issue should never have been put before a jury in the first place, but if a new trial is ordered and the Marshmallow-related evidence becomes part of the case, even Judge Alsup's JMOL analysis (under those new circumstances) may be a different one than so far. What I consider less important is that he appears to consider a Google motion for fees "greedy" and said he might just deny it if the parties couldn't reach an agreement on this one. A motion about a few million dollars of expenses is just a sideshow in the context of a multi-billion dollar case. But the Marshmallow Chrome issue is absolutely pivotal, and in case Judge Alsup orders a re-retrial, it will be a whole new ball game and in that case I'll form my opinion on each and every decision before, during and after the re-retrial as if the things that went wrong last time had never happened in the first place. Yes, the spring 2016 retrial may soon be water under the bridge, and a correct outcome may be possible even prior to an appeal.

In retrospect it's really hard to understand what Google did here. And even harder to justify.

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