Friday, November 20, 2015

Oracle v. Google and the district court judge

Foss patents has an interesting post on Friday, November 20, 2015 about the Oracle America, Inc. v. Google Inc. case, which includes the text:

On Wednesday [18 Nov 2015], a motion hearing was held in the San Francisco courthouse of the United States District Court for the Northern District of California to discuss Oracle's motion to disqualify the court-appointed damages expert, Dr. James Kearl, who since his original appointment in this case has effectively defended Google's interests in connection with an Apple v. Samsung case.

It would only be human if Judge Alsup hated Oracle (I don't know if he does; just saying it would be understandable) for having defeated his non-copyrightability decision on appeal. He's been described as an ego-driven judge, and a journalist said in 2012 that he appeared to be the smartest person in the room (at the 2012 trial), which contrasts with the circuit judges' remarks at the December 2013 appellate hearing: they found him "confused" and incorrectly conflating copyrightability and "fair use" aspects. The written opinion was even tougher. It was totally damning for the district judge.


I'll try to find that story again but I remember once having read something about Judge Alsup having written a letter to an appeals court to disagree with an appellant (he felt he needed to correct some misrepresentations) and to defend his ruling. I'm not aware of any other district judge ever having done that anywhere in the world. Apparently he cares a great deal about what happens to his decisions on appeal, and the highest-profile decision he made, at least in an IT/IP context, was the non-copyrightability finding that turned out to have been wrong on each point. But that wasn't Oracle's fault. Oracle's counsel tried hard to educate Judge Alsup about the way U.S. software copyright law works. If he had agreed with Oracle, the Federal Circuit would have affirmed his decision.

Since the beginning of 2012, this judge has not been fair in my opinion. He's also been completely wrong on a key issue, which is not just my opinion but also that of the Federal Circuit judges, who wield a far bigger stick every day than he ever has. He called Oracle v. Google the World Series of IP cases. The Northern District of California is a major IP litigation venue, but the World Series of IP finals take place in Washington, DC. Unlike in baseball, however, the local venue can delay things a lot. I hope Oracle will not back down because that would be a bad precedent for everyone who believes courts should be fair, experts should be neutral, and judges should be fair in light of the fact that "justice delayed is justice denied" almost always affects only the plaintiff.


As to a confusion of copyrightability (whether an item is subject to copyright protection) with fair use (which is a defense to copyright infringement), from a discussion of the case from the Finnegan website:

The Court held that the merger doctrine was incorrectly applied by the district court, and that the district court did not focus on the options available to an original author. The Court explained that the merger doctrine is an exception to the “idea/expression dichotomy”—which does not extend copyright protection to any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” Id. at 18 (quoting 17 U.S.C. § 102(b)). Instead, under the merger doctrine, if there are only a few ways to express an idea, the idea essentially “merges” with the expression and thus becomes unprotectable. In this case, the Court held that the merger doctrine was inapplicable because the Ninth Circuit had previously determined that the distinctive arrangement of a computer program does not merge with the process if alternate expressions are available. The Court recognized that the Android class names and methods could have been different from the names used by Java, and still could have worked. For example, “java.lang.Math.max” could have instead been named “Arith.larger.” If Java’s authors only had a limited number of ways to express the methods and classes, then the idea likely would have “merged” with the expression, making the packages unprotectable, but the Court held that they did not and, thus, the merger doctrine was inapplicable.

The Court also held that the district court erred in concluding that Oracle’s declaring codes were uncopyrightable because they were short phrases. Although, under 37 C.F.R. § 202.1(a), words and short phrases such as “names, titles and slogans” are unprotectable under copyright law, the relevant inquiry is whether the manner in which a short phrase is strung together and used is creative, the Court noted. The Court further noted that Oracle is not seeking protection for single phrases, but short phrases strung together. Because an original “combination” of words can be copyrightable, the Court held that the district court erred in finding that the programs were unprotectable short phrases.

As to Fair Use, the Finnegan people wrote:

In addressing additional points, the Federal Circuit acknowledged the four statutory factors to be considered when determining if a particular use is fair. At the lower court, the jury was hung on Google’s fair use defense and a new trial was denied. The Federal Circuit ultimately decided that the record contained insufficient facts on which it could base a de novo assessment of Google’s assertion of fair use; thus, the issue was remanded. The Court also affirmed the district court’s decision to grant Oracle’s motion for JMOL in regards to “eight decompiled Java files that Google copied into Android” and which contain security functions, and affirmed the district court’s decision to deny Google’s motion for JMOL in regards to nine lines of “rangeCheck” code because copying was “more than de minimis.” Id. at 62-66.

Link to Finnegan post


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