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Oracle v. Google - Jury Still Out; Judge Anticipating Inability of Jury to Decide Some Questions of Fact ~mw
Friday, May 04 2012 @ 12:08 PM EDT

According to reports emanating from the courtroom, Judge Alsup has raised the likelihood that they jury will be unable to return a unanimous decision on each of the questions posed. The Judge elicited the response of counsel to this possibility (Oracle - take what you can get; Google - declare a mistrial unless all issues decided). It appears the judge is more inclined to accept a partial verdict, i.e., accept the jury's findings on those questions for which the jury was in unanimity, decide what he can, and then retry the issues for which the jury is hung. Of course, we will not know how close or far away the jury is until it returns, and there is always the possibility, where the jury has not decided all of the issues unanimously, that the judge will not announce what issues have been decided. Stand by for more.


  


Oracle v. Google - Jury Still Out; Judge Anticipating Inability of Jury to Decide Some Questions of Fact ~mw | 141 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Potentially unblocking the API ruling?
Authored by: Anonymous on Friday, May 04 2012 @ 12:18 PM EDT
Let's say there's a partial verdict that Google did infringe
the SSO for the Java API, but the jury deadlocks on the
question of the affirmative defenses (fair use, estoppel, de
minimis copying, etc). That seems like a potentially likely
outcome.

It seems to me that such a ruling would potentially make the
"reserved" issue of whether API's are copyrightable
meaningful. Such a ruling might moot the outstanding
questions of fact (if API's aren't copyrightable, whether or
not the copying was "de minimis" is irrelevant).

And judging from the questions the judge has been asking
recently, that's potentially good news - the judge seems to
have hefty skepticism on the copyrightability of API's.

[ Reply to This | # ]

Corrections
Authored by: NigelWhitley on Friday, May 04 2012 @ 12:19 PM EDT
Please indicate the error in the title e.g.
Errer-->Error

Thanks
----------
Nigel Whitley

[ Reply to This | # ]

Off-topic
Authored by: NigelWhitley on Friday, May 04 2012 @ 12:21 PM EDT
Please include comments not directly related to this article under this thread.
For such a small article that's a lot of scope.
----------------
Nigel Whitley

[ Reply to This | # ]

newspicks thread
Authored by: designerfx on Friday, May 04 2012 @ 12:22 PM EDT
newspicks comments here

[ Reply to This | # ]

Tweets from the courtroom
Authored by: feldegast on Friday, May 04 2012 @ 12:25 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 | # ]

Comes transcribing
Authored by: feldegast on Friday, May 04 2012 @ 12:26 PM EDT
Thank you for your help

---
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 | # ]

Incredibly Prejudicial
Authored by: MDT on Friday, May 04 2012 @ 12:32 PM EDT
A partial jury verdict would be INCREDIBLY prejudicial to Google. A new trial
would basically be Oracle saying 'They are guilty guilty guilty they were found
guilty and nobody could agree on any excuses to let them get away with it'.
That's incredibly prejudicial to Google's defense. I can't believe Alsup is
even thinking about allowing a partial verdict, unless he's planning on just
biting the bullet and declaring the API's uncopyrightable.

I find it hard to imagine that if they are locked on the defenses that they
would have found the APIs copyrightable. Basically, the instructions to the
jury were to assume they were. With that assumption, it made it fairly likely
that #1 would be guilty. Add on to that the partial verdict, and another trial
would be almost impossible to overcome.

---
MDT

[ Reply to This | # ]

Oracle v. Google - Jury Still Out; Judge Anticipating Inability of Jury to Decide Some Questions of Fact
Authored by: NigelWhitley on Friday, May 04 2012 @ 12:34 PM EDT
IMHO (IANAL) the Judge is leaning towards ruling the APIs are not suitable for
protection under copyright. He may also feel that the Jury are not going to find
for Oracle, at least not wholly.

I base this on previous indications that he is both intelligent and thoughtful
(the two don't always go hand in hand). If he felt the Jury were going to come
down on the side of the plaintiff and his ruling was also in favour then he
would be less inclined to enter a ruling now which might have negative
consequences for the defendant and (potentially) cause irreparable harm. A
majority finding against Oracle might encourage them to abandon their pursuit of
this ludicrous claim or at least offer to settle (which means Judge Alsup could
get on with more "important" cases).

If the Judge is also planning to rule against Oracle, as seems more likely
following the EU ruling, then receiving a majority verdict against them may help
Oracle to recognise the futility of their position (although I don't think Larry
Ellison is a gracious loser). They would need to appeal against the Judge and
the jury decision to even get a chance of another trial.
---------------
Nigel Whitley

[ Reply to This | # ]

“We do need to be careful about what we get,” Van Nest cautioned.
Authored by: SilverWave on Friday, May 04 2012 @ 12:57 PM EDT
However, Google’s counsel Robert Van Nest made it crystal clear that Google
wants all or nothing — meaning a complete verdict or a mistrial.

“We do need to be careful about what we get,” Van Nest cautioned. “If the jury
fails to resolve an issue, the only correct result there is a mistrial on that
divisible question and move on to the patent phase.”

---
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 | # ]

Oracle v. Google - Jury Still Out; Judge Anticipating Inability of Jury to Decide Some Questions of Fact
Authored by: Anonymous on Friday, May 04 2012 @ 01:09 PM EDT
Does the judge get status reports on the progress of the jury?

e.g. if there are 9 yes/no questions that must be answered on the special
verdict form, can the foreman indicate to the judge "we agree on 3
questions, are in debate on 2 more, and 4 have yet to be examined".

Given such a daily report, you can differentiate slow progress from a locked
jury. Is this done?

[ Reply to This | # ]

Deliberations
Authored by: webster on Friday, May 04 2012 @ 01:41 PM EDT

This is a prickly time for an attorney. Nothing can be done but fidget and wait. There has never been a trial where the lawyer didn't think he omitted something or put in something he shouldn't.

  1. The tweets speak of more heated exchanges between the lawyers. Decision time is near. For some lawyers their payday depends on a verdict. They also get wrapped up in their client's cause. If a lawyer can't delude himself, how can he persuade a jury? And who doesn't like to be perceived as a winner?
  2. This is also an area where the more experience one has, the less one can predict. A judge could be addressing a jury note when a bang on the door interrupts with another note announcing a verdict.
  3. Juries don't always follow instructions. It leads to irrational results, but anything can happen in the spirit of compromise and getting away from some of the other people. They may not have found infringment but gone on to other questions in the search for unanimity or mootness. If the foreperson turns into a dud, juries can wander. In the end they sometimes realize that another person should have been the foreperson.
  4. The prospect of trying the rest of this case before a jury that has hung is distasteful to at least the Oracle lawyers. They have the burden of proof that is unlikely to be met with certain jurors.
  5. Unhanging the jury is a delicate process. The judge does not want to do anything that might be considered coercive toward any jurors holding out. This is why the jury is instructed never to divulge their vote count. If a party that wants a verdict will suggest things and agree to judicial solutions. The party that wants no verdict objects to everything as coercive and prejudicial.
  6. This jury has been told that there was infringement. Google has admitted the nine lines or files [that they took out] and they have been told that IPA/OSS's [PIA's/SOS's?] are copyrightable and they are in the code.
Better end this comment before the jury returns and it is irrelevant. How many millions has the court's repeated demand for briefs cost? Imagine him in a jury room.


~webster~

Tyrants live their delusions. Beware. Deal with the PIPE Fairy and you will sell your soul.



[ Reply to This | # ]

The judge caused this
Authored by: Anonymous on Friday, May 04 2012 @ 02:07 PM EDT
If the jury cannot decide the question, it will be the sole responsibility of
judge Alsup for creating this mess. He told the jury that they must assume
false statements as true. Once you do that, any outcome is meaninless.

All this because he hoped the jury would save him having to tell Oracle that
APIs are not copyrightable. He was too scared and lazy to do his job right, now
we have this mess.

[ Reply to This | # ]

Jury Dilemma
Authored by: Anonymous on Friday, May 04 2012 @ 02:21 PM EDT
Not sure what Hon. William Alsup plans are..

Initial 2 weeks of trial went off smoothly and Hon. William
Alsup plan to give his verdict on API copyright after the
jury had decided in favor of Oracle made sense.

Now due to deadlock there are lots of confusion. Hon.
William Alsup should decide on API copyright issue and break
the deadlock. Considering a partial verdict will create more
confusion.

Hon. William Alsup should decide taking into consideration
future of programmers and IT industry instead of taking the
view of just one company.

[ Reply to This | # ]

A third runner?
Authored by: Ian Al on Friday, May 04 2012 @ 02:38 PM EDT
Before the trial, the judge asked Oracle to show the medium of fixation of the
APIs.

Only during the trial will it have been clear that Oracle failed to give an
adequate legal answer. Because of the evidence in the trial, he now knows that
the 'API' is, in fact, in thousands and thousands of individual class
implementation files. He started by thinking that at least each 'package' was a
file or a program in its own right.

He has determined for the purposes of the jury that the work as a whole is the
totality of the thousands of files in the 166 packages. Now, as a result of
evidence presented during the trial, he knows there was a failed registration:
No collective work or compilation is legally defined.

He knows as a matter of fact that the SSO (whatever that is) is distributed and
drawn by inference from the single declaration lines in thousands and thousands
of individual copyright files and that does not satisfy the legal requirement of
the SSO being creative expression fixed in a single medium.

As a result of the combined bench and jury trial he can find that the Java API
SSO does not meet the legal requirements as a copyright work and that he does
not have to rule on the law of copyright protection of APIs.

I don't know if Oracle are allowed to put right the Java registrations and start
the whole case up again. That is definitely one for the lawyers!

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

A mistrial might be good for google
Authored by: pem on Friday, May 04 2012 @ 03:15 PM EDT
- Better arguments about what is an API next time around

- Or even a legal ruling that API is not copyrightable before trial starts

- Ability to counter known Oracle FUD, such as McNealy's lies about Schwartz's
blog

So it's no wonder that Oracle will accept a partial verdict but not Google. The
truth will eventually come out; it's all a matter of who that's good for.

[ Reply to This | # ]

  • Yes - Authored by: Ian Al on Saturday, May 05 2012 @ 01:55 AM EDT
Why it takes so long
Authored by: Anonymous on Friday, May 04 2012 @ 03:19 PM EDT
The Judge as send the jury to debate a fictitious question:
If a API is copyrightable;
Did Google do that on fair use or in the minimis ?

The jury is now reading "Gödel, Escher, Bach",
so they know how to handle this.
/Arthur


[ Reply to This | # ]

Hard to imagine that the majority are with Oracle
Authored by: Anonymous on Friday, May 04 2012 @ 03:24 PM EDT
It's very hard for me to imagine that the majority are with
Oracle. I rather imagine that the majority don't believe
that there was infringement, and one or two people think
that there was. I really can't see that a sane jury could
think that there was anything other than minimal
infringement after Mr Schwartz told them that Java was free.
I would expect that those one or two of the jury would be
saying 'but why would Oracle bring this lawsuit if they
weren't being ripped off?'

Pure speculation, I know, but it would be interesting to see
what other people who followed the evidence as presented on
Groklaw think.

The form:

-----------

SPECIAL VERDICT FORM

YOUR ANSWER MUST BE UNANIMOUS.

1. As to the compilable code for the 37 Java API packages in
question taken as a group:

A. Has Oracle proven that Google has infringed the overall
structure, sequence and organization of copyrighted works?
Yes __________ No __________

================================================
My answer: Yes. I'm on Google's side, but the instructions
given make it hard for me to say that Google did not copy
the structure, because they don't include much in the way of
guidance as to what structure is not copyrightable.
================================================



(IF YOU ANSWER “NO” TO QUESTION 1A, THEN SKIP TO QUESTION
NO. 2.)

B. Has Google proven that its use of the overall structure,
sequence and organization constituted “fair use”?

Yes __________ No __________

===============
My answer: Yes.
===============

2. As to the documentation for the 37 Java API packages in
question taken as a group:

A. Has Oracle proven that Google has infringed?
Yes __________ No __________

(IF YOU ANSWER “NO” TO QUESTION 2A, THEN SKIP TO QUESTION
NO. 3.)

=============
My answer: No
=============


B. Has Google proven that its use of Oracle’s Java
documentation constituted “fair use”?

Yes __________ No __________

3. Has Oracle proven that Google’s conceded use of the
following was infringing, the only issue being whether such
use was de minimis:
Yes
(Infringing) No
(Not Infringing)
A. The rangeCheck method in
TimSort.java and
ComparableTimSort.Java _______ _______

==========================================================
My answer: Yes. (Though it shouldn't be given the source.)
==========================================================

B. Source code in seven “Impl.java”
files and the one “ACL” file _______ _______

===============
My answer: Yes.
===============

C. The English-language comments in
CodeSourceTest.java and
CollectionCertStoreParameters
Test.java _______ _______

=========================================================
My answer: I don't remember reading any testimony, so No.
=========================================================

2

4. Answer the following special interrogatories only if you
answer “yes” to Question 1A.

A. Has Google proven that Sun and/or Oracle engaged in
conduct Sun and/or Oracle knew or should have known would
reasonably lead Google to believe that it would not need a
license to use the structure, sequence, and organization of
the copyrighted compilable code?
Yes __________ No __________

===============
My answer: Yes.
===============


B. If so, has Google proven that it in fact reasonably
relied on such conduct by Sun and/or Oracle in deciding to
use the structure, sequence, and organization of the
copyrighted compilable code without obtaining a license?

Yes __________ No __________

===============
My answer: Yes.
===============


Your answers to Questions 4A and 4B will be used by the
judge with issues he must decide. Questions 4A and 4B do not
bear on the issues you must decide on Questions 1 to 3.

----------

[ Reply to This | # ]

Hang is implicit in jury instructions?
Authored by: Anonymous on Friday, May 04 2012 @ 03:38 PM EDT
The judge told the jury to assume that the API's are copyrightable. But he also told them that ideas are not copyrightable.

The reason API's are not copyrightable, is because that implies that ideas are copyrightable, as even an European Court was smart enough to figure out.

What if someone on the jury is also smart enough to figure this out? That is, what if someone on the jury figured out, that in this particular case, what Oracle is asking for is to copyright an idea?

They would not neccessarily have to notice, that the same reasoning would imply that all API's are also an attempt to copyright ideas?

Maybe some juror are following this line, but others are rembering that the judge told them APIs were copyrightable?

What if the jury "hang" flows logically from contrdictory instructions from the judge?

[ Reply to This | # ]

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