Headlines:- Oracle v. Google - Stipulation on Copyright Damages Approved, 02:06 PM
- Oracle v. Google - Patent Infringement Instructions, Damage Phase Witnesses, and the Continuing Saga of Infringer's Profits, 08:39 AM
- From the Courtroom - Day 17 of Oracle v. Google ~pj - Updated 5Xs, Tuesday 12:01 PM
- Oracle v. Google - Day 16 Filings, Tuesday 10:00 AM
- Reports from the Oracle v. Google Trial - Day 16 ~pj - Updated 4Xs, Monday 01:06 PM
- Oracle v. Google - Some Background on the Copyright Damages Issue, Monday 11:15 AM
- Oracle v. Google - Weekend Filings, Sunday 03:00 PM
- Google Files for SJ on Copyright Damages; Oracle: Could We Wait and Get a New Jury Instead? ~pj, Sunday 09:46 AM
| Oracle v. Google - Stipulation on Copyright Damages Approved |
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Wednesday, May 16 2012 @ 02:06 PM EDT
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The parties have just submitted a proposed stipulation on copyright damages, and Judge Alsup has already accepted it. The ordered stipulation:
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| Oracle v. Google - Patent Infringement Instructions, Damage Phase Witnesses, and the Continuing Saga of Infringer's Profits |
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Wednesday, May 16 2012 @ 08:39 AM EDT
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The jury is out on the issue of patent infringement, and the instructions issued to the jury (1153 [PDF; Text])are more favorable to Google than originally drafted. Gone are the references to "blind willfulness" and included are the definitions more favorable to Google than to Oracle. The Special Verdict Form (Text) is shortened as well given that the parties stipulated to indirect infringement on a finding of direct infringement.
The parties have also teed up their list of witnesses for the damages phase, assuming there is one. Oracle, as expected, is going to drag in Larry Page and Eric Schmidt, and what would we do without hearing from Tim Lindholm one more time. (1154 [PDF; Text]) Google's list is far shorter (1155 [PDF; Text]), and Google indicates they will only call Prof. Astrachan if Oracle calls Prof. Mitchell.
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| From the Courtroom - Day 17 of Oracle v. Google ~pj - Updated 5Xs |
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Tuesday, May 15 2012 @ 12:01 PM EDT
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Our first report from the courtroom is here, and it seems real life has thrown a little tack in the road. One of the jurors had car trouble, so after the judge and the lawyers finished their early morning discussions and called for the jury, no jury. So, they waited. When the difficulty couldn't be resolved to get her to the court, she was removed from the jury by the judge. This is juror #2, according to the tweeting journalists. And then the closing statements began. The discussion before all that is a bit disturbing. Google apparently complained about Oracle's ambush tactics, and the judge laughed it off. It isn't so funny if you are Google. And not all judges find such tactics amusing, either. If you recall, SCO, represented by Boies Schiller, who now represent Oracle, were sanctioned by the court for trying to use
ambush tactics in SCO v. IBM. Actually, they were sanctioned twice. They kept changing what their case was about, presenting new allegations at the last minute.
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| Oracle v. Google - Day 16 Filings |
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Tuesday, May 15 2012 @ 10:00 AM EDT
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The further we go into the this trial the heavier the paperwork has become with no fewer than 26 documents on today's list. Because of that volume we will not be able to address all of them in detail or provide them in text, at least initially, but here are the highlights:
Motions for Judgment as a Matter of Law - Patent Phase
Both parties have filed a motion for judgment as a matter of law with respect to the patent phase of the trial. For its part, Google argues (1151 [PDF]):
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| Reports from the Oracle v. Google Trial - Day 16 ~pj - Updated 4Xs |
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Monday, May 14 2012 @ 01:06 PM EDT
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The judge has ruled on the weird Oracle motion [PDF] to delay the damages phase of the trial to get a new jury. It's a no from Judge William Alsup, also calling their position on the 9 lines of code and the test files and damages "super extreme". They'll have to present it to *this* jury. There's no way the law should allow a disgorgement theory over millions or billions of dollars for nine lines of code, the judge tells them, our man in the courtroom tells us. The 37 APIs will not be part of phase three, "because liability has not been proven on that". So that's that. Google's motion for summary judgment on copyright damages [PDF] is also denied. It's on to the damages phase after closing statements by tomorrow, with this jury. Meanwhile, Google expert Dr. David August, who testified on Friday, is back on the witness stand.
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| Oracle v. Google - Some Background on the Copyright Damages Issue |
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Monday, May 14 2012 @ 11:15 AM EDT
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We've all seen the fur flying on the issue of copyright infringement damages with respect to rangeCheck and the decompiled files. It's worth stepping back and putting this into perspective, and it's also worth considering the arguments advanced.
First, the perspective. The jury found rangeCheck infringed. The jury also found the decompiled files not infringed, but Judge Alsup, on Oracle's motion for judgment as a matter of law, has overruled the jury on that one. So both rangeCheck and the decompiled files are infringing. For our purposes, let's set aside everything else (e.g., the SSO) as being unresolved, either because the jury was unable to reach a determination (the jury WAS in agreement that the SSO was infringed but not in agreement on Google's fair use defense) or because the Court has yet to rule on an issue of law (e.g., whether an implementation of a specification constitutes a derivative work of that specification). Those unresolved copyright infringement issues are more important than the issues that have been resolved.
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| Oracle v. Google - Weekend Filings |
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Sunday, May 13 2012 @ 03:00 PM EDT
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PJ has separately covered the more important filings from the weekend, namely Google's motion for summary judgment on the damages issue with respect to rangeCheck and the decompiled files and Oracle's motion to delay phase 3 of the trial until the copyright liability issues are settled, there were a few other filings. One of those was the Court's ruling in favor of Oracle (and overturning the jury) on the issue of infringement of the decompiled files. (1123 [PDF; Text])
The Court has also issued another draft of the proposed jury instructions for the patent infringement liability phase of the trial. (1120 [PDF; Text]) These revisions incorporate some of the suggestions from the parties with respect to the first draft.
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| Google Files for SJ on Copyright Damages; Oracle: Could We Wait and Get a New Jury Instead? ~pj |
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Sunday, May 13 2012 @ 09:46 AM EDT
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Google has filed a motion for Summary Judgment on copyright damages, arguing that Oracle has no evidence that Google gained anything financially that can be linked to rangeCheck or the test files:
Oracle has no evidence, and cannot possibly prove, that Google earned any revenue causally linked to either the nine lines of rangeCheck or the eight superfluous test files.
That is, of course, obviously true. The judge said he was going to tell the jury that, in fact. How can Oracle win infringer's profits if there aren't any? So
Oracle has now filed a motion asking for a postponement of phase three of the trial, the damages phase. It would like a new jury, too. It wants to wait to calculate damages until after the judge decides whether APIs are copyrightable, so it can add the 37 API files into the mix for damages, if they are. Maybe then it would have a prayer of getting some money. In short, Oracle woke up and realized it's in a pickle of its own making. It was too clever by half, and now reality has struck. It clearly is worried that if they go to the damages phase now, it will gain a big fat zero in damages. It should have thought of that before it asked for infringer's profits, but there you are.
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| Day 15 at the Oracle v. Google Trial ~pj - McFadden, Parr, August - Updated 2Xs |
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Friday, May 11 2012 @ 06:09 PM EDT
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Today's reporter for Groklaw at the Oracle v. Google trial has filed his reports, three of them so far, and they are voluminous. You will enjoy his thorough account of the day's events. I saw the tweeting journalists saying, Oh no, more code. But that's exactly what you want. The journalists zone out, but what I see in the notes is that the judge is paying very, very close attention, enough to ask meaningful questions. So, enjoy. I'll keep adding to the reports, but I have the first one done. [They're all done now.] Witnesses today were Andrew McFadden, Terence Parr, and David August, all Google's witnesses, providing expert testimony that Google didn't use Oracle's patented technology. One bad news bit for Google: the judge has granted Oracle's motion for judgment as a matter of law on the directly copied test files, in question 3b of the jury's instructions, that they had decided Google didn't infringe, overruling their opposite finding. And here's the order [PDF]. The judge seems to be going to great lengths to ensure any appeal will not require a new trial.
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| Oracle's [Mostly] Denied Motion For JMOL on Fair Use, as text ~ pj Updated 2Xs |
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Friday, May 11 2012 @ 09:54 AM EDT
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I thought you'd like to see the Oracle motion that the Hon. William Alsup denied Wednesday, after a couple of hours of oral argument. I see at least one person tweeting that the judge has ruled that APIs are not copyrightable. He hasn't ruled on that yet. This was something else. You can read about the judge's ruling here. What he did rule on were two motions for judgment as a matter of law.
If a party feels at any point that after hearing all the evidence, its case can be decided by the judge without a jury because no jury could reasonably find for the other party, it can file a motion asking for judgment as a matter of law. It's common to see that near or at the end of the presentation of evidence in a trial. That kind of motion is called a Rule 50(A) motion. Here, Oracle's motion, dated May 1st, was asking the judge to rule, among other things, that Oracle is entitled to judgment as a matter of law on Google’s fair use defense. It's that motion that was denied. Google's JMOL was also denied. The bigger question, whether APIs are even copyrightable, is still pending. So what does this ruling mean? That the issue of Google's fair use defense, at a minimum, remains alive and it has to go to a jury, a new one, unless the judge in his pending ruling decides that APIs aren't copyrightable. Here's the Oracle motion [PDF], and I've done it as text for you. It's not the ruling we are waiting for, but it's a pretty significant decision anyhow, because it slams the door on Oracle's attempt to get a $1 billion payday from its copyright claims.
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PTO Director Compares 'Smartphone Wars' to Patent Battles of Old
The so-called “smartphone wars” involving patent lawsuits are just part of the “natural ebb and flow of technology development” and not a fundamental problem with patents or the patents system, the director of the U.S. Patent and Trademark Office told a congressional committee today.
David Kappos, testifying before a House Judiciary Committee, compared the global battle over the technology inside smartphones to the fights about James Watt’s steam engines and sewing machines. [PJ: Here's why it's not the same at all. There were not 2,000 patents on steam engines and sewing machines. There are on smartphones. And it's the public that suffers, as prices go up and some are now unable to get the phones they want. Plus software patents interfere with the normal, best practice method of software development. Further, there was no Free and Open Source sewing machine. The development model for FOSS is inimical to patents, and vice versa, so the current wars endanger a superior and innovative method of software development made possible by the Internet. Somebody at the USPTO needs to wake up and acknowledge these significant differences.] - BLT
U.S. Judge OKs Sales of Microsoft Xbox in Germany
The court also agreed [PDF] with Microsoft that the company would suffer irreparable harm without the injunction, while Motorola would not.
"By issuance of an anti-suit injunction, this court is in no way stating that Motorola will not at some later date receive injunctive relief, but only that it must wait until this court has had the opportunity to adjudicate that issue," Judge Robart wrote.
"In the meantime, the court has required Microsoft to post a $100 million bond to compensate Motorola for its losses in the event that this injunction is reversed or vacated." - Nick McCann, Courthouse News Service
Red Hat celebrates 10 years of Red Hat Enterprise Linux
Today, Red Hat is continuing to move forward with its business oriented take on Linux. In a press conference today, Red Hat executives
said to forget about Linux. Instead, users should focus on open-source based cloud technologies and virtualization. It is these, and the Linux plumbing that supports them that will keep Red Hat moving ahead and companies like VMWare or Microsoft that try to stick with proprietary ways to deliver enterprise servces will be left behind.
Like that first move to RHEL, these words are going to annoy Linux’s strongest fans. I’ll be willing to bet though that just like the shift to RHEL this approach of focusing on what Linux can deliver rather than on Linux per se will be exactly what businesses want to hear. - Steven J. Vaughan-Nichols, ZDNet
Former Apple, Google, Facebook engineers launch IoT startup
Fiennes demonstrated a power adaptor with an Imp socket. He installed a card and an appropriately labeled block appeared in a browser window. Fiennes plugged in a chain of decorative lights and we clicked on the box on our browser. After clicking, the box text went from "off" to "on." Over Skype, we could see the lights had come on.
Fiennes emphasized that control need not be manual and could be linked to other Internet apps such as weather reports, or to Electric Imp sensor nodes that monitor conditions such as humidity.
A second example is an Electric Imp enabled passive infrared sensor. Fiennes demonstrated how it could be programmed to report the time and date of detected motion to a client's Web pages on the Electric Imp server. In turn, those pages could be programmed to send an alarm to a mobile phone. The alarm could also be triggered if no motion was detected, allowing the sensor to serve as a monitor for the elderly in their homes, for example. If there is no activity before 9 a.m., a message is sent to a caregiver. - Peter Clarke, EE Times, EDN
Upgrading Your Verizon Device? Say Goodbye to Unlimited Data
"As you come through an upgrade cycle and you upgrade in the future, you will have to go onto the data-share plan and mov[e] away from, if you will, the unlimited world," Verizon Communications CFO Fran Shammo said during an appearance at a J.P. Morgan technology conference. - Chloe Albanesius, PCMagazine
HTC One X and Evo 4G LTE delayed at US Customs for investigation of Apple patent infringement
The HTC One X and Evo 4G LTE are notable devices for many reasons, but today they become notorious: they're the first devices to face an import delay at US Customs for potentially infringing an Apple patent. We've learned today that the One X and Evo 4G LTE are indefinitely delayed at Customs as the agency investigates patent issues with Apple, and sources have further confirmed that some shipments are indeed being held back. - Nilay Patel, The Verge
Banned PlayStation Hacker Sees Hope of Return in Jailbreaking Deliberations
He settled the suit last year by agreeing never to tinker again with a Sony product, but his hacker itch has him awaiting a looming decision by federal copyright regulators that, for the first time, could legalize videogame-console jailbreaking.
That, Geohot thinks, might let him “jailbreak” the PlayStation again, freeing it for the world of tinkerers to use as they wish, the same way that a decision in 2010 to allow mobile phone users to liberate their smartphones to run whatever programs they like bolstered a vibrant alternative to the tightly constrained and capriciously run Apple App Store.
“I would really like to get back into that scene,” Hotz said in a recent telephone interview. - David Kravets, Wired
How the Professor Who Fooled Wikipedia Got Caught by Reddit
These stories have two things in common. They are all tailor-made for viral success on the internet. And they are all lies.
Each tale was carefully fabricated by undergraduates at George Mason University who were enrolled in T. Mills Kelly's course, Lying About the Past. Their escapades not only went unpunished, they were actually encouraged by their professor. Four years ago, students created a Wikipedia page detailing the exploits of Edward Owens, successfully fooling Wikipedia's community of editors. This year, though, one group of students made the mistake of launching their hoax on Reddit. What they learned in the process provides a valuable lesson for anyone who turns to the Internet for information. - Yoni Appelbaum, The Atlantic
Oracle releases HP documents: 'Make your own decision'
Jeb Dasteel, Oracle’s senior vice-president and chief customer officer, explained the move:
“At this time, there are many documents that have been disclosed through litigation that describe the true state of Itanium in Hewlett-Packard’s own words. Rather than us interpreting this situation for you, we thought we would give you access to the public HP documents so you can make your own decision regarding your investments in Itanium technology.”
The ‘open letter’, intended for present Itanium customers, goes on to say that Oracle is “confident that you will agree with our decision”. [PJ: Since HP's position is that Oracle is contractually bound to continue to support Itanium, it's hard to see the point in getting the public to agree with Oracle's decision not to do so any more. What matters is the contract and how the court eventually interprets Oracle's obligations under the contract. It has already ruled that HP's position is not an unreasonable interpretation of the contract.] - ZDNet
EU to 'remain Vigilant' on Microsoft's Browser Commitments
Regulators in Europe said Tuesday they will watch closely to make sure Microsoft complies with its commitments to ensure competition in the browser market, after Mozilla complained its Firefox browser is being excluded from Windows RT.
However, the European Commission noted that an agreement it struck with Microsoft in 2009 to regulate its behavior applied only to "client PCs," and it wasn't immediately clear if that incudes tablets, one of the main targets for Windows RT. [PJ: That in no way precludes a new complaint, of course, should one prove necessary, one assumes.] - Loek Essers, IDG
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