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Schwartz Blog Was Corporate -- So Says Sun's 2008 10K ~ pj - Updated
Tuesday, May 01 2012 @ 01:48 PM EDT

The jury is asking the judge questions, so while we wait for a verdict, I'd like to settle a question from the Oracle v. Google trial once and for all. If you recall, when Scott McNealy was on the stand in the Oracle v. Google trial, he testified under oath that then-CEO of Sun Microsystem Jonathan Schwartz's blog was just personal, not corporate. Michael A. Jacobs, Oracle's attorney handling the closing argument yesterday, repeated that thought. Perhaps we should look at the Sun SEC filings and see what Sun told the SEC about the blog? I mean, these filings are certified as being true, are they not?

Here we go, from Sun Microsystems' Annual Report for the fiscal year ended June 30, 2008, its 10K filed with the SEC on August 29, 2008:
Our Internet address is http://www.sun.com. The following filings are posted to our Investor Relations web site, located at http://www.sun.com/investors as soon as reasonably practical after submission to the United States (U.S.) Securities and Exchange Commission (SEC): annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, the proxy statement related to our most recent annual stockholders’ meeting and any amendments to those reports or statements filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended. All such filings are available free of charge on our Investor Relations web site. We periodically webcast company announcements, product launch events and executive presentations which can be viewed via our Investor Relations web site. Additionally, we provide notifications of our material news including SEC filings, investor events, press releases and CEO blogs as part of the Official Investor Communications section of our Investor Relations web site. The contents of these web sites are not intended to be incorporated by reference into this report or in any other report or document we file and any references to these web sites are intended to be inactive textual references only.
Does that sound like the CEO's blog was strictly personal or corporate? Some things are just obvious, but it's good to get it settled, once and for all. I wish I'd found this earlier, actually, but whatever the jury doesn't know, at least in the court of public opinion, we know now the answer.

Here's what the judge's instructions [PDF] to the jury told them about witness credibility:

7. A witness may be discredited or impeached by contradictory evidence or by evidence that, at some other time, the witness has said or done something or has failed to say or do something that is inconsistent with the witness’ present testimony. If you believe any witness has been impeached and thus discredited, you may give the testimony of that witness such credibility, if any, you think it deserves.

8. Discrepancies in a witness’ testimony or between a witness’ testimony and that of other witnesses do not necessarily mean that such witness should be discredited. Inability to recall and innocent misrecollection are common. Two persons witnessing an incident or a transaction sometimes will see or hear it differently. Whether a discrepancy pertains to an important matter or only to something trivial should be considered by you.

However, a witness willfully false in one part of his or her testimony is to be distrusted in others. You may reject the entire testimony of a witness who willfully has testified falsely on a material point, unless, from all the evidence, you believe that the probability of truth favors his or her testimony in other particulars.

And while we wait for the jury to plow its way through all the questions and intricacies of the jury instructions, here's an aptly named article by Andrew Binstock on Dr. Dobb's on what happens if Oracle wins, Oracle And The End Of Programming As We Know It. He writes:
If Oracle prevails in its claim that APIs can be copyrighted, nearly every aspect of programming will be changed for the worse.
And that's why people are lined up at the courthouse waiting for this verdict. One correction, however. The jury doesn't get to decide the issure of API copyrightability. The judge will do that, if necessary, after the jury deliberates and reaches a verdict on the fair use and other Google defenses. If they decide Google's use was fair use, then there will be no decision on whether or not APIs can be copyright-protected in this litigation. On Forbes, Oliver Herzfeld, SVP and Chief Legal Officer at Beanstalk, explains that aspect, and he also remarks on what an Oracle win would mean for software development:
But the consequences of this landmark case are potentially much broader for the software industry, as a win for Oracle could fundamentally change the legal standing of programming languages from their current status as generally free instruments to create software applications, to an altered status as products themselves that must be licensed by platform developers, hardware manufacturers, app programmers, and all the other participants in the food chain.
In other words, Oracle is asking for broadened protection under copyright law than a developer would typically expect.

Here's a screenshot of the blog post in question, from November of 2007, hence a date covered by the annual report, which covered the dates June 2007 to June 2008:

You can find it and read it in full here.

Update: Caleb Garling reports on the day's activities, where the jury failed to reach a decision today. They'll be back tomorrow first thing.


  


Schwartz Blog Was Corporate -- So Says Sun's 2008 10K ~ pj - Updated | 287 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
then did someone commit perjury?
Authored by: Anonymous on Tuesday, May 01 2012 @ 01:56 PM EDT
After all, they were both sworn to be true, and yet they're mutually exclusive.

[ Reply to This | # ]

Like I said...
Authored by: BJ on Tuesday, May 01 2012 @ 01:59 PM EDT
MacEnn was trying to be nice to his buddy ElEl.
Shame on both.

bjd

[ Reply to This | # ]

Andrew Binstock @ Dr Dobbs barey touches it
Authored by: Anonymous on Tuesday, May 01 2012 @ 02:01 PM EDT


Since when did you ever need a license to express ideas you'd read about in a
copyrighted work?


limiting expression.

expression with toll roads.

[ Reply to This | # ]

Schwartz Blog Was Corporate -- So Says Sun's 2008 10K ~ pj
Authored by: Anonymous on Tuesday, May 01 2012 @ 02:02 PM EDT
Is this relevant to the case if it hasn't been entered into
evidence?

[ Reply to This | # ]

Corrections here
Authored by: feldegast on Tuesday, May 01 2012 @ 02:04 PM EDT
so they can be fixed

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

News picks
Authored by: feldegast on Tuesday, May 01 2012 @ 02:05 PM EDT
please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Off topic
Authored by: feldegast on Tuesday, May 01 2012 @ 02:06 PM EDT
please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Comes transcribing
Authored by: feldegast on Tuesday, May 01 2012 @ 02:07 PM EDT
Thank you for your support

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Tweets from the courtroom
Authored by: feldegast on Tuesday, May 01 2012 @ 02:09 PM EDT
https://twitter.com/#!/Feldegast

- --
IANAL
My posts are ©2004-2012 and released under the Creative Commons License Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

PJ, you should add Schwartz's tweet...
Authored by: Anonymous on Tuesday, May 01 2012 @ 02:23 PM EDT
After Jonathan Schwartz found out about Scott McNealy's testimony that his blog was a "personal" blog, he tweeted this:
Jonathan Schwartz ‏ @OpenJonathan

Under oath, u said my blog was personal, not Sun communication? Srsly? :) http://web.archive.org/web/20080416195557/http://blogs.sun.com/jonathan/entry/co mments_on_q2

1:33 PM - 27 Apr 12 via web

[ Reply to This | # ]

Schwartz Blog Was Corporate -- So Says Sun's 2008 10K ~ pj
Authored by: darlmclied on Tuesday, May 01 2012 @ 02:27 PM EDT
I am confused. I thought the judge had said that he would be
deciding whether it was possible to copyright the API's, as a
matter of law.

Now it seems that the jury are deciding this -- did I miss
something?

[ Reply to This | # ]

Schwartz Blog Was Corporate -- So Says Sun's 2008 10K ~ pj
Authored by: PolR on Tuesday, May 01 2012 @ 02:34 PM EDT
From McNealy testimony (day 9 of the trial):

Oracle: About the positive comments about Android from Sun ( after Google's
announcement)… Did you read the blog of Jonathan Schwartz?

Scott McNealy: Well, don't tell him, but I didn't read his blog.


How could anyone take McNealy testimony seriously then? Where does his personal
knowledge of the blog contents come from?

[ Reply to This | # ]

Judge says Oracle can't raise Lindholm email again. "You've already beaten that horse to death.
Authored by: SilverWave on Tuesday, May 01 2012 @ 02:36 PM EDT
James Niccolai ‏ @jniccolai

Judge says Oracle can't raise Lindholm email again in patent phase. "You've
already beaten that horse to death."
http://www.javaworld.com/javaworld/jw-02-2012/120206-google-appeal-denied.html

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Filing you posted was from 2008
Authored by: s65_sean on Tuesday, May 01 2012 @ 02:54 PM EDT
I believe that the Schwartz blog that in question was from 2007. Did their SEC
filings from that time period (2007) say anything similar, or was it only after
the time period in question that the blog of the CEO became part of the material
information that they published?

[ Reply to This | # ]

Who signed Sun's 2008 10K ?
Authored by: AntiFUD on Tuesday, May 01 2012 @ 03:02 PM EDT
Since it was in 2008 or later Sarbanes-Oxley requires that the full Board can be
held responsible IIRC, it is 5 years since I studied the Act.

I feel sure that Scott McNealy was part of the BoD in this time-frame -
hopefully Google will be able to bring this up in the patents phase.

---
IANAL - Free to Fight FUD - "to this very day"

[ Reply to This | # ]

Jonathan Schwartz @OpenJonathan
Authored by: feldegast on Tuesday, May 01 2012 @ 03:58 PM EDT
I guess not everyone read our SEC filings. Kudos, once again,
@groklaw http://www.groklaw.net/article.php?
story=20120501005843202

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Lawyers Presentation?
Authored by: rsteinmetz70112 on Tuesday, May 01 2012 @ 04:11 PM EDT
Maybe it's just the reports but I never got the sense that Oracle had a
narrative they were trying to sell the jury. Their presentation seemed sort of
scatter shot. Almost like they were purposely trying to keep the jury off
balance.

There seem to be things that would have been important to explain which didn't
seem to be mentioned, like the fact that some Java Docs are automatically
generated for comments in the source.

I may be wrong I'll wait to see when the transcripts become publicly available
(if they ever do)



---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

A miss by Google.
Authored by: Anonymous on Tuesday, May 01 2012 @ 04:24 PM EDT
It was Google that presented Schwartz's blog into evidence.

Surely they should have been prepared for the argument that
the blog didn't represent the "official" view of the
company. Seems like Oracle's obvious response.

So why the heck aren't these 10-K's in evidence? Why
weren't they entered in support of Schwartz's testimony? Or
as impeachment evidence to the later "that was a personal
blog" claim?

Google could have scored a knockout blow on estopel here.
Instead, they allowed this to be a "he said, she said."

[ Reply to This | # ]

Schwartz Blog Was Corporate -- So Says Sun's 2008 10K ~ pj
Authored by: Anonymous on Tuesday, May 01 2012 @ 05:00 PM EDT
The Dr. Dobbs piece mentions a counter-suit by Google, am I simply unaware of
this or are they mistaken?

[ Reply to This | # ]

Even IF it wasn't a corporate press release..
Authored by: Anonymous on Tuesday, May 01 2012 @ 05:08 PM EDT
It was a public statement by the CEO of the company.

Indicative of what he knew of as the company's policy/stand.

A similar reality might be a politician stating "I smoked" and then
their spouse announcing "but s/he didn't inhale".

It's fruitless to close the door after the bull's left the barn.

[ Reply to This | # ]

McNealy knew of and approved of Schwartz' blog
Authored by: IMANAL_TOO on Tuesday, May 01 2012 @ 05:08 PM EDT
I still believe McNealy knew of and approved of Schwartz' blog.


---
______
IMANAL


.

[ Reply to This | # ]

About programming language as IP
Authored by: YurtGuppy on Tuesday, May 01 2012 @ 05:35 PM EDT
I really don't have a problem with programming languages being a closed IP.
After all, aren't CPU instruction sets treated that way?

If someone wants to create their own language, development environment, tools,
etc. and tie those up with licenses, go for it.

After all, I see languages everywhere. Every user interaction with a machine
could be construed as a language.

Maybe I'm all wet.

---
a small fish in an even smaller pond

[ Reply to This | # ]

If APIs are copyright-able, Java will die...
Authored by: mtew on Wednesday, May 02 2012 @ 01:10 AM EDT
...along with any other closed language. It will take forever to happen and the
process will be extremely painful and protracted, much like the death of punched
cards.

It will also tighten the death spiral of Oracle, Microsoft, Novell and others.
(These corporate deaths are not inevitable, but it will take a major break for
them to escape. Something like what IBM did to itself.)

---
MTEW

[ Reply to This | # ]

Schwartz Blog Was Corporate -- So Says Sun's 2008 10K ~ pj - Updated
Authored by: Anonymous on Wednesday, May 02 2012 @ 01:16 AM EDT
1. No, that statement does not suggest to me that the
entirety of Schwartz's blog was corporate communication. It
tells me that some Schwartz blog posts are included in the
Investor Relations section of the Sun site would count as
corporate communication. Was the Android blog post also
posted to the investor relation section of the Sun web site?

2. I still do not see how the blog post can be read as a
granting of permission to use Sun's copyrighted material.

3. If Google interpreted the blog post as a granting of
permission to use Sun's copyright, why did they determine
numerous times after the blog post that they did need a
license? Every time the question arose, they decided they
needed a license or face the risk of a lawsuit rather than
pointing to the blog post as a granting of permission to use
the copyrighted material.

[ Reply to This | # ]

I love you PJ
Authored by: symbolset on Wednesday, May 02 2012 @ 03:11 AM EDT

Dial it back. Just a notch.

I've been here forever, this isn't a troll.

[ Reply to This | # ]

Express Logic Versus Green Hills in API Copyright Lawsuit
Authored by: Anonymous on Wednesday, May 02 2012 @ 03:52 AM EDT

I don't know if the following has been mentioned here before, but there was a previous lawsuit over whether APIs can be covered by copyright, which was Express Logic versus Green Hills in 2007. That case decided that APIs could be copied. However, the case was decided by arbitration rather than by a real court, so it set no precedent.

What is even more interesting about it is that even the complainant (Express Logic) seemed to feel that copying APIs was OK if it was done for certain reasons, since they themselves copied other company's APIs. In other words, they were aware that a ruling in their favour could also backfire on them if they weren't careful.

Express Logic's view of the result was:

“We’re shocked that copying of source code and using it to compete with our copyrighted work was not found to be infringement,” commented William E. Lamie, author of ThreadX and president of Express Logic. “We believe that the basis upon which the arbitrators determined that this copying was not infringing would put all software code at risk of being copied without infringement. After all, what software is not made up of ‘words and short phrases?’ As for the ‘functional requirements for compatibility,’ why should anyone be able to copy source code under the guise of compatibility but not use it for that purpose? This ruling seems illogical to us, and would put all software at risk if this reasoning were to be applied in other cases.”

However, they also added:

Fortunately, this decision by the arbitrators has no precedential value. Therefore, when and if a court of law hears this issue, it could very well arrive at a different conclusion.

Here's Green Hill's view of the result

Here's Green Hill's view of the original complaint:

Express Logic claims that the µ-velOSity APIs are similar to ThreadX APIs, but dozens of other small-footprint operating systems also have APIs that are very similar to ThreadX and µ-velOSity. It is perfectly legal to have similar APIs.

Express Logic acknowledges that the ThreadX API is not confidential, but claims that it is protected by copyright. However, it is well established that copyright does not protect a software product’s method of operation, which includes its API. It is legal to copy the publicly available API of a product to implement a competing product with the same (or similar) API.

The head of Green Hill's said of this that “This is the dumbest lawsuit I’ve ever seen.” Well, we'll see if Oracle's efforts can top that record.

[ Reply to This | # ]

The jury pain.
Authored by: BitOBear on Wednesday, May 02 2012 @ 06:43 AM EDT
I was on a jury once that came very close to a miscarriage of justice, or at
least hanging, for the most puerile of reasons.

One person just couldn't bring themselves to waste the jury form, and three more
said "I just know I could never hit kids with a car so the driver had to
have been negligent."

Now we only needed nine out of twelve. The three were right out. There was no
way that they could face the idea that even -they- might not be able to avoid
the accident had they been the driver. The only balm for their conscience and
fear was that even though 100% of the witnesses on all three sides said that the
driver had no chance when the children ran out. Yes, every single witness said
the driver was blameless. But there were three whole "rational" human
beings who insisted that the accident was proof of negligence on its face no
mater what.

That left one. She was willing to vote that "the drivers negligence did not
cause the accident" if we would all vote that the driver was negligent. Her
proof for the negligence was -also- based solely on the existence of the
accident. e.g. there couldn't be an accident in the absence of negligence was an
axiom to her. But she felt no cognitive dissonance in matching that with the
fact that the driver didn't do anything wrong. She admitted that herself.

She literally couldn't face the empty form, and what it said about mischance and
misfortune, if it had the word "no" in question 1 at the top of the
tree and was otherwise blank.

This person even made us call the judge into the deliberation room to ask if we
could answer question 2 first so that we all knew she would stick to her promise
of answering that one "no" so that we could then
"compromise" to get at least one "yes" on the form.

Match this up with another real life experience. While getting my security badge
for work on a customer site I had to fill out a bunch of forms. One of them was
a "fill out a copy of this form for every criminal conviction you have
had" form. I had none so this was a no-brainer. But another guy in the room
was stymied. He kept asking the security lady what to do with the form and she
kept telling him "fill it out for each conviction you have had."
Finally I moved over next to him and asked "how many times have you been
convicted of a felony?" He said "none." I reached out slowly,
slid the offending page away, crumpled it up, and said "problem
solved."

These experiences taught me that juries, just like people, are easily
overwhelmed by options and their own tendency to want to obey. They want to
-use- the form you give them. Like the fear of answering all the questions on a
test "true", they feel like they have failed if the paper ends up
blank.

So in my minds eye, I imagine the jury, in "wanting to be fair",
working under the assumption that the form needs to be filled out at least half
way to make it fair.

Time and expense permitting I think that juries should -NOT- be allowed to see
the entire form. I think they should only get to see them one at a time and be
given no foreknowledge of how many there might be or what their answers mean in
terms of the whole task. This would prevent the whole "let's
compromise" by answering nonsense first so that we can put the
"no" halfway down the page.

The old saw about meetings is doubly true of juries, in my limited experience,
"No one of us is as stupid as all of us are together."

[ Reply to This | # ]

Calling an API would not infringe even if duplicating the API would
Authored by: Anonymous on Wednesday, May 02 2012 @ 07:12 AM EDT
I think a lot of people are getting ridiculously worked up about the idea that
calling an API would be infringing or create a derived work. I don't think that
follows.

The API is like the dictionary. You can't copy someone's dictionary and publish
it but you can use the words in it for your own writing.

Also when calling a function you only copy the name of the function not it's
declaration.

Note: I think the max API itself is too simple and insufficiently creative to be
copyright protectable but am using it as a simple example. There are many other
more complex functions and objects which have many more design choices that are
not always obvious. This max API I have written without seeing the Java one for
many years.

API:
int max(int a, int b)

Use example:
if newInput > max(prevousHighest, 100)

Copied API:
int max(int a, int b)

Where calling instance methods on objects the usage gets further still from a
direct copy of the API.

Also doesn't FSF believe that API's are copyrightable? If not is there any
difference between the GPL and the LGPL? I may post this idea separately to get
attention.

[ Reply to This | # ]

EU Court decision: API's are NOT Copyrigtable
Authored by: vadim on Wednesday, May 02 2012 @ 08:03 AM EDT
European Court decision

[ Reply to This | # ]

Wait a minute!
Authored by: Anonymous on Wednesday, May 02 2012 @ 05:36 PM EDT
This is not a Football match where we are supposed to pick up our favorite
team.

The red words acknowledge the blog as a part of the Official Investor
Communications section of their Investor Relations web site. However, the blog
is indeed personal as the posts are solely the words of a person and NOT the
entire organization.

On the other hand, the post itself gives reference to an announcement citing
"I'd also like Sun to be the first platform software company to commit to a
complete developer environment around the platform", it sounds like an
agreement was not reached...

I'm afraid this problem is not easy to solve.

[ Reply to This | # ]

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