Also he says the jury will be told that it's a fact that the Java language is free for everyone to use. That's based on "Oracle's concessions at hearings". They'll also be told that there is a dispute between the parties as to whether or not APIs and class libraries are part of the language.

Apparently the honorable judge would like to enforce some consistency on Oracle. That's a job for Superman.

Here are the three facts Google considered established:

1. The Java programming language is open and free for anyone to use.

2. The names of the Java language API files, packages, classes, and methods are not protected by copyright law.

3. Aside from a nine-line function that Oracle accuses Google of copying, Oracle does not contend that Android’s source code in any of the accused APIs was copied from the source code used in the Java platforms.

Defendant Google Inc. filed a motion to deem three issues undisputed at trial. Oracle opposed all three proposals. After reviewing both parties’ submissions, this order holds that Google’s motion is GRANTED IN PART as follows.

The jury shall be told: “The Java programming language is open and free for anyone to use but the parties disagree on whether the Java APIs and class libraries are part of the Java programming language.” This instruction reflects Oracle’s concessions at hearings.

The jury shall be told: “The names of the various items appearing in the disputed API package specifications, such as names of API files, packages, classes, and methods, are not protected.” This instruction reflects the Court’s order on summary judgment (Dkt. No. 433).

Google’s third proposal is not adopted and will be a matter of proof at trial.

IT IS SO ORDERED.

If the Court is inclined to read Google's statement to the jury, then the Court should also inform the jury that: "The Java APIs and class libraries are distinct from the Java programming language." Oracle will promptly present a motion asking the Court to do just that.

Google's proposal is also prejudicially misleading. In Oracle's April 3 copyright brief, Oracle explained how it provides the Java Development Kit for download by application developers, who use it to write their own Java-language programs. (ECF No. 853 at 5.) The JDK is made available under license, though without charge (id.), and this is the sense in which application developers are "free" and "open" to use the language. Indeed, many application developers use the tools provided in the JDK to compile the source code they write for Android applications, and they are permitted to do so. But the statement "[t]he Java programming language is open and free for anyone to use" glosses over the complexities of the licensing issues in this case. Oracle has been consistent: it is not asserting copyright claims based on the Java programming language for purposes of this case. So there is no good reason to give the jury a confusing instruction about the language.

On the second issue, Oracle unbelievably tried to tell the judge what his summary judgment order had said, without describing it correctly. How can that ever work with a judge, unless he's seriously distracted, I hear you asking? Surely he will remember what he decided. Because sometimes it works. We saw SCO tried that with the Magistrate Judge Brooke Wells in SCO v. IBM, and she did fall for it in the early rounds, giving SCO part of what it asked for in that back-door way, not that it helped in the long run, but that's why the law firm keeps doing it, I imagine. But with this judge, SCO has a steeper mountain to climb.

Here's what Oracle's reasoning was as to why the judge should not grant Google's second undisputed fact:

The Court should reject Google's second proposal for two reasons. First, it misreads the Court's summary judgment order. In its summary judgment order, the Court held that a collection of names could be eligible for copyright protection:

In finding that the names of the various items appearing in the disputed API package specifications are not protected by copyright, this order does not foreclose the possibility that the selection or arrangement of those names is subject to copyright protection. See Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1147 (9th Cir. 2003) ("[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.") (emphasis added).

(ECF No. 433 at 8.) By including only the first part and not the second, Google's proposal will mislead the jury.

Oracle will be arguing at trial that the selection, structure, and organization of thousands of names in the APIs and class libraries are protected by copyright and that Google copied them. The first is a legal issue; the second is a fact that Google has admitted. It would be prejudicial error to simply instruct the jury that "the names are not protected by copyright," which risks being misinterpreted to apply to the selection and arrangement of the names. The proposal is also prejudicial because it refers to the APIs as the "Java language APIs." That is not how Oracle describes the APIs. It is a term of Google's invention to try to link the APIs to the language. But Google has conclusively admitted that the APIs and class libraries are not part of the language.

Second, Google's proposal is a statement of law, and not a statement of fact. That Google cites no Oracle statement in its brief (ECF No. 861 at 2-3) is conclusive: it is not an admitted fact. The Court will ultimately determine what legal principles are relevant to the jury's deliberations and the proper expression of those principles in jury instructions. And because the instructions will focus on the claims that are presented to the jury, it is unlikely that Google's proposal — which addresses a claim that the Court has ruled out of the case (subject to appeal) — will be a proper subject of instruction.

Here's what the judge wrote about names and words not being protectable in his order:

“Words and short phrases such as names, titles, and slogans” are “not subject to copyright.”... Google argues that “the names of the Java language API files, packages, classes, and methods are not protectable as a matter of law” (Br. 17). This order agrees.

The filings:

04/10/2012 - 892 - MOTION Administrative Relief to Deem Facts Admitted by Google filed by Oracle America, Inc.. Responses due by 4/12/2012. (Attachments: # 1 Proposed Order)(Jacobs, Michael) (Filed on 4/10/2012) (Entered: 04/10/2012)

04/10/2012 - 893 - Notice of Withdrawal of Motion for administrative relief (Peters, Marc) (Filed on 4/10/2012) (Entered: 04/10/2012)

04/11/2012 - 894 - ORDER GRANTING MOTION TO REMOVE INCORRECTLY FILED DOCUMENT by Hon. William Alsup granting 876 Motion to Remove Incorrectly Filed Document.(whalc1, COURT STAFF) (Filed on 4/11/2012) (Entered: 04/11/2012)

04/11/2012 - 895 - Transcript of Proceedings held on March 28, 2012, before Judge William H. Alsup. Court Reporter/Transcriber Katherine Powell Sullivan, RPR, CRR, CSR, Telephone number 415-794-6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 5/2/2012. Redacted Transcript Deadline set for 5/14/2012. Release of Transcript Restriction set for 7/10/2012. (Sullivan, Katherine) (Filed on 4/11/2012) (Entered: 04/11/2012)

04/11/2012 - 896 - ORDER GRANTING IN PART GOOGLE'S MOTION TO DEEM ISSUES UNDISPUTED by Hon. William Alsup granting in part and denying in part 861 Motion to deem issues undisputed.(whalc1, COURT STAFF) (Filed on 4/11/2012) (Entered: 04/11/2012)

I. INTRODUCTION

Based upon Google’s concessions, Oracle moves for an order to deem the following admitted for purposes of trial:

1. Google has admitted that the 37 Java APIs meet the threshold for originality required by the Constitution.

2. Google has admitted that Android incorporates the same selection, arrangement and structure of API elements as Java 2 SE does for the 37 API packages at issue.

3. Google has admitted that the Java programming language is distinct from the Java APIs and class libraries.

4. Google has admitted that the only way to demonstrate compatibility with the Java specification is by meeting all of the requirements of Sun’s Technology Compatibility Kit (“TCK”) for a particular edition of Sun’s Java.

5. Google has admitted: TCKs were only available from Sun, initially not available as open source, were provided solely at Sun’s discretion, and included several restrictions, such as additional licensing terms and fees. In essence, although developers were free to develop a competing Java virtual machine, they could not openly obtain an important component needed to freely benefit from Sun’s purported open-sourcing of Java.

6. Google has admitted: Although Sun offered to open source the TCK for Java SE, Sun included field of use (“FOU”) restrictions that limited the circumstances under which Apache Harmony users could use the software that the Apache Software Foundation created. Sun refused the ASF’s request for a TCK license without FOU restrictions.

Here's my theory. Oracle bought Sun and altered course. Kind of like Caldera changed course, chose a new name under a new CEO, and started suing people for doing what it had encouraged them for years to do, use Linux. Here, Jonathan Schwartz, then CEO of Sun, said the world could enjoy Java, that it was open source, that Apache's Harmony Project was fine, as long as they didn't call it Java, which they didn't. There was no "purported" about it. This is a rewrite of history, which is foolish, in that everyone is still alive. Mr. Schwartz was deposed and he told the truth, to his credit. So now it only awaits Oracle doing the same.

"Purported open sourcing" indeed.