Monday, February 1, 2021

Now that Judge Alsup has gone senior, he should recuse himself from Oracle v. Google on remand

I just became aware of The Recorder's report on United States District Judge William H. Alsup's letter to President Biden, electing to "go senior" (i.e., semi-retirement).

The case that generated more publicity for him than any other in his 21 years on the bench has been Oracle v. Google. It's the tragedy of a career, but in that case he made a number of mistakes, some of which are inexcusable. He could have avoided especially his biggest mistake--his holding of non-copyrightability--by simply not listening to ideologically biased commentators. What made him a superstar judge among a vocal Internet minority took the combination of a couple of crystal-clear legally erroneous conclusions.

At a 2013 hearing, a Federal Circuit judge accurately described the central element of Judge Alsup's approach to the copyrightability analysis as "confusion." A unanimous panel opinion overruled him. In the months ahead, possibly in a matter of weeks, a unanimous or near-unanimous Supreme Court is going to affirm the Federal Circuit in this regard. The Department of Justice also consistently disagreed with him twice--yes, the Obama and the Trump Administrations. And that's not because they were biased. Actually, the Obama Administration was on the friendliest terms with Google. But Judge Alsup had simply gotten it 100% wrong.

At the start of the retrial he told jurors that half the people writing about the case don't know what they're talking about. The percentage may be higher, but I consistently got it right. I don't know whether he saw my commentary before his non-copyrightability ruling. In case he did read it, I'm sorry I hadn't explained it in a way he'd have understood--that would have saved him from the embarrassment of being reversed on his single highest-profile decision. Or maybe the authors of the Java books he said he had read could also have done a better job.

In between the first Federal Circuit appeal and the Supreme Court hearing, Judge Alsup presided over a retrial, in the build-up to which he disadvantaged Oracle in numerous ways. To me, his decisions at that stage seemed very partial. Whether it was how to organize the trial, what evidence to admit, or how to instruct the jury--every step of the way he'd agree with Google where it mattered and occasionally with Oracle where it wasn't likely to be outcome-determinative anyway.

His decisions looked like he wanted to punish Oracle for its sucessful copyrightability appeal, and he wanted a jury to let Google off the hook--on the basis of fair use--so that the outcome would ultimately be the same as what it would have been had his puzzling non-coprightability holding been upheld. A right-for-the-wrong-reasons kind of situation, with his fans still believing he had been right in the first place.

But the appellate attorney they call the Defibrillator for his uncanny ability to revive cases, Orrick's Joshua Rosenkranz, did it again: the Federal Circuit held that Google's use of certain Java code in Android was a clear example of unfair use.

The Supreme Court might affirm the Federal Circuit on fair use, too, but Google's lawyer might also have succeeded in misleading (a euphemism) the justices. Even if the Supreme Court sided with Google on the procedural question of deference to the jury, the matter would go back to the Federal Circuit, which would then (as I predict for this scenario) remand the case to the district court for new and fairer proceedings.

So whether the case will go back to Judge Alsup's court for the determination of remedies or for a retrial on fair use, I'm pretty sure it will return to San Francisco.

And at that point, I believe the appropriate thing for Judge Alsup to do would be to let a colleague of his handle it. As senior judge, he no longer has to handle every case that arrives on his desk. If the Supreme Court overruled him on at least copyrightability, and if it also turns out he erroneously denied judgment as a matter of law on fair use or didn't give Oracle a fair chance to convince the jury, I don't think he can even trust himself anymore to handle that case in a totally unbiased and correct manner. Now, if he did insist on presiding over a third Oracle v. Google jury trial, and if he finally made correct and fair decisions, that might also be conducive to his legacy. But if he were to act again like during the first two trials, he shouldn't touch the case, now that his senior status provides him with a face-saving exit.

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