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Jury in Oracle v. Google Has Reached a Verdict on All Questions but One - Will Try Again Monday ~pj
Friday, May 04 2012 @ 03:38 PM EDT

The jury in Oracle v. Google is reentering the courtroom, according to the tweeting journalists at the courtroom, asking what to do. They have reached a unanimous verdict on all the questions except for one. They are filling out the verdict form. So stand by.

Update: This is like a soap opera. The foreman now tells the judge it was not unanimously agreed to send that note. Some want to deliberate some more. Caleb Garling of Wired:

Foreman: A minority of jurors believe waiting the weekend will generate new perspective, break deadlock on fourth question
Judge Alsup tells them they don't have to reach agreement on question 4. That's just advice for him, because he has to decide that in the end. No, they tell him they are at an impasse on one of the first three questions on the form.

Here are the three:
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 __________


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

Yes __________ No __________

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 __________


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:

(Not Infringing)
A.The rangeCheck method in and
B.Source code in seven “”
files and the one “ACL” file
C.The English-language comments in and

Do these jurors understand that the question as to whether SSOs can be copyrighted is for the judge to decide?

The judge and the attorneys are in a huddle -- should they hear the partial verdict now or send the jury home for the weekend and let them try to deliberate some more on Monday? Mr. Garling jokes that if ever Google decides to gather the world's court cases, it should be called "Google Huddle".

The judge tells the jury he's inclined to send them home for the weekend. If they'd like a read-back of the testimony, they need only ask. Garling quotes Judge Alsup to the jury:

"Since there is hope of reaching that question, we should take advantage of that hope."
Then he warned the jury not to do any independent research.

And now you know one reason journalists don't live as long as librarians.


Jury in Oracle v. Google Has Reached a Verdict on All Questions but One - Will Try Again Monday ~pj | 123 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Jury Has Reached a Verdict on All Questions but One ~pj
Authored by: BJ on Friday, May 04 2012 @ 03:43 PM EDT


[ Reply to This | # ]

Jury in Oracle v. Google Has Reached a Verdict on All Questions but One ~pj
Authored by: Anonymous on Friday, May 04 2012 @ 03:50 PM EDT
Apparently the 4th Question is the one they are in deadlock over..

[ Reply to This | # ]

Jury in Oracle v. Google Has Reached a Verdict on All Questions but One ~pj
Authored by: Anonymous on Friday, May 04 2012 @ 03:54 PM EDT
The form says only to answer 4 if they answered YES to 1A, Google _has_
infringed the SSO


[ Reply to This | # ]

"They're deciding if they want to hear verdict now or give jury weekend for last question"
Authored by: Anonymous on Friday, May 04 2012 @ 03:54 PM EDT
Caleb Garling @CalebGarling

They're deciding if they want to hear verdict now or give jury weekend for last

[ Reply to This | # ]

Twitter List
Authored by: Anonymous on Friday, May 04 2012 @ 04:01 PM EDT

Excellent twitter list:!/tqft 9999/googlevoracle

Updates in real time!

(no, I'm not tqft9999)

[ Reply to This | # ]

Jury in Oracle v. Google Has Reached a Verdict on All Questions but One ~pj
Authored by: xtifr on Friday, May 04 2012 @ 04:04 PM EDT
Hmm, 2 and 3 seem almost trivial to me. Even if Google did infringe the
documentation, that's easily replaceable, and won't affect the Android market.
And timsort and the comments have already been replaced; at worst, Google has to
cough up a few bucks for past infringement (if it's not ruled de minimis).

I think we all know that question one is the tricky one; the whole question of
copyrighting APIs is the biggie.

Do not meddle in the affairs of Wizards, for it makes them soggy and hard to

[ Reply to This | # ]

Is Alsup mismanaging the case?
Authored by: BJ on Friday, May 04 2012 @ 04:08 PM EDT
What a mess! I'm inclined to clamor at this point.


[ Reply to This | # ]

corrections thread
Authored by: designerfx on Friday, May 04 2012 @ 04:09 PM EDT
corrections posted here please

[ Reply to This | # ]

off topic thread
Authored by: designerfx on Friday, May 04 2012 @ 04:10 PM EDT
off topic comments here

[ Reply to This | # ]

What an amazing 20 minutes!!
Authored by: Anonymous on Friday, May 04 2012 @ 04:18 PM EDT
Sitting here at work following the live tweets from the journalists was an
amazing experience! The drama, the twists and turns.

In a way, I think it was good the verdict will be delayed until Monday. I
personally think the jury has to find Google infringed based on the instructions
and verdict form they were given. At least this way we don't have to suffer a
whole weekend of paid Oracle mouthpieces sprouting off over the verdict.
Especially since I also think Alsup will rule as a matter of law the API is not

[ Reply to This | # ]

jury's questions-- anyone willing to use for a guess?>
Authored by: Anonymous on Friday, May 04 2012 @ 04:21 PM EDT
Can anyone explain how they would try to use the jury's
questions to guess which question was deadlocked?

[ Reply to This | # ]

newspicks thread
Authored by: designerfx on Friday, May 04 2012 @ 04:30 PM EDT
newspicks discussion here

[ Reply to This | # ]

Well that was a surprise... hmmm
Authored by: SilverWave on Friday, May 04 2012 @ 04:45 PM EDT
Which question eh?

What is the chance that no member of the jury will do any web surfing over the

Interesting stuff.

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 | # ]

I think that this is one *very* relieved Judge.
Authored by: SilverWave on Friday, May 04 2012 @ 04:53 PM EDT
He must have thought he had blown it.

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 | # ]

Possible Irony
Authored by: Anonymous on Friday, May 04 2012 @ 05:31 PM EDT
Wouldn't it be ironic if they were deadlocked on question #1 because the judge
told them to assume SSO is copyrightable, but considered all else fair use?

Pity they were cut off before saying which question it was...

[ Reply to This | # ]

Majority of Jury Reaches for Partial Verdict; Minority Says Not So Fast
Authored by: webster on Friday, May 04 2012 @ 06:11 PM EDT

There is no verdict until there is a verdict. Even when it
is delivered, a party can ask that the jury be polled. That
is the last chance for a juror to change. Until that poll
is taken, the verdict can come apart.

Clearly the jury was not unanimous that they should go into
the courtroom and deliver a partial verdict. If a partial
verdict was available and the court didn't take it... well
that would be a pretty reckless decision.

The weekend is fraught with danger. This is a well-known
case. The jurors and their family members have picked up on
it. They can google off the living room iPads and who's to
know what they might see about destroying programming in the
United States... Monday brings new realities. Misconduct
and contamination! Remember the juror who hung on damages?
What if one of these reads about that? What Larks!

Someone can get sick or suddenly realize everyone in the
family has 'droids but them. And the poor lawyers! Having
a weekend with the jury out intrudes on many wakeful

With parties, judges, witnesses and juries no wonder civil
litigation is like riding a snake with a saddle.


[ Reply to This | # ]

This is getting to be a bad soap opera
Authored by: Anonymous on Friday, May 04 2012 @ 07:02 PM EDT
Does anyone think that anything that happens from now on in
this particular trial will matter? Now that PJ has found that
Schwartz's blog was corporate, a new copyright trial should
be open and shut, with two questions. Were you the CEO at the
time Google released Android? Did you allow Google to use
java with its associated APIs?

Case dismissed.

[ Reply to This | # ]

Jury in Oracle v. Google Has Reached a Verdict on All Questions but One - Will Try Again Monday ~pj
Authored by: ThrPilgrim on Friday, May 04 2012 @ 07:10 PM EDT
Well Monday's good for me. Its a National Holiday in the UK.

Beware of him who would deny you access to information for in his heart he
considers himself your master.

[ Reply to This | # ]

That's a great point that I had not picked up on before.
Authored by: Anonymous on Friday, May 04 2012 @ 07:56 PM EDT
Thanks for pointing out what should have been obvious.

[ Reply to This | # ]

Please read the fine jury instructions
Authored by: jbb on Friday, May 04 2012 @ 08:01 PM EDT
They can be found as text here.

Search for "fair use". Here is an example:

As stated, the owner of a copyright has the exclusive right to make copies of all or more than a de minimis part of the copyrighted work, subject only to the right of anyone to make fair use of all or a part of any copyrighted material, all as will be explained below.
I think Judge Alsup displays an incredible lack of ignorance on fair use specifically and copyright in general.

The questions are worded in a logical manner, not a legal one. After reading the instructions (often a good thing to do when ignorance is suspected) it should be perfectly clear that the jury is to first figure out if there was infringement ignoring the fair use defense. They are then supposed to figure out if the fair use defense applies to those portions that would otherwise have been infringing.

I have not one iota of doubt that the judge could have written the exact, precise legalese questions you demand of him. I also have no doubt that at least some of the jurors would find such legalese massively confusing.

Judge Alsop did a masterful job of explaining the law in his instructions to the jury. This allowed him to pose very short and simple questions to the jury that would have been confusing without the context of his instructions.

Our job is to remind ourselves that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay

[ Reply to This | # ]

Missing question
Authored by: Anonymous on Friday, May 04 2012 @ 08:08 PM EDT
The Judge has reserved the question of whether you can copyright the SSO of
APIs, but who is going to decide whether these particular APIs are sufficiently

I mean if you can copyright the SSO of APIs (I don't think you should, but if
you can), presumably some APIs are sufficiently creative and some are not (e.g.,
driven by function requirements).

Has that question been addressed?

For instance, what creativity is there in a comprehensive package of math
functions? The names, inputs, outputs, and computations are all standard math.
Did SUN creatively misname a function? Did SUN creatively include functions that
were not commonly included in other math packages? Did SUN creatively omit
functions? Did SUN creatively provide for special cases not defined by IEEE
standards? Did SUN organize their math functions in a new non-obvious fashion?

Networking? Network protocols are defined in open standards.

I recall reading a witness testified that designing APIs is a creative effort,
but he wasn't nailed down on any of the creativity of any of the 37 APIs. Surely
some of them are driven by practical requirements and lack creativity. Did I
miss (or forget) this?

Are there open standards or APIs for other languages that are similar to Java?
Was Oracle asked if SUN referred to such prior art when designing the APIs for

Did Oracle establish that some of the 37 APIs creatively anticipated new
requirements not yet established or met known needs in new ways?

Did I miss this somewhere in the 11 days of the trial?

[ Reply to This | # ]

A late entry
Authored by: Ian Al on Saturday, May 05 2012 @ 01:45 AM EDT
In the previous story, I suggested a finding based on the failure of Oracle to
show SSO fixed as creative expression in a medium even though Judge Alsup had
requested them to do so prior to the trial stages.

This runner is based on means, motive, and opportunity. At the time of the
alleged infringement, OpenJDK had not been published. The Sun proprietary API
compilable code files have never been published.

Oracle (Sun) joined in a legal contract with Apache in the JCP, Java
Specification Participation Agreement once the agreement had been extended to
give permission for third party implementation of the API Specification. Oracle
(Oracle) were also a party to the agreement.

One assumes that the JSPA would not have had small print saying that Harmony
could implement the Specification, but that there was no licence for anyone to
use the implementation.

There must have been tacit agreement among the whole JCP membership, including
Sun and Oracle, that Apache could licence the Apache implementation under the
Apache licence or else Apache would not have joined the JCP and Sun would not
have let them.

The JCP Terms of Association were to develop the Java API Specification. To do
this, they had to receive from Sun the, then, current Specification and make
changes to it. The current document was javadoc'ed from the secret Sun
compilable code files and is a statement of facts already set in stone. Any SSO
added would have been from the JCP.

As such, the SSO is both a statement of fact and required for purely functional
purposes and is not protectable by copyright. The protectable expression, if
any, was created in the original code files by the individual authors. Oracle
have not proven that the copyright was either work product or assigned to Sun.
We know that significant amounts of files were not, and are not, owned by Sun.

We know the Harmony implementation does not meet the virtual identity test for
API documentation, the names and short phrases are not protected and the
copyright is all theirs to use except, arguably, for any SSO creative expression
copied into the compilable code files. Any copyright that could possibly belong
to Sun is not copyright marked as owned by Sun. This was by agreement with Sun
by virtue of the Java Specification Participation Agreement written by Sun.

It appears an undisputed fact that Google copied the Harmony compilable code
files under an Apache licence. Oracle have not demonstrated ownership of the SSO
in those files because the files were largely Harmony owned with an unproven
element contractually made available to them via the JCP.

Google did not have means, motive, and opportunity to gain access and copy the
original copyright materials in the Sun proprietary API compilable code files.
Once handed across to the JCP, the Specification was a statement of fact and not
the media for the copyright creative expression. The Specification was
contractually licensed to Harmony via the JSPA together with a licence to change
and implement it. Harmony explicitly licensed the implementation to Google.

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

[ Reply to This | # ]

The Jury is way too considerate
Authored by: globularity on Saturday, May 05 2012 @ 08:18 AM EDT
I think if two weeks of my time had been wasted tossing the dice in a corporate
gamble packaged as a court case I would give the gambler (plaintiff) the verdict
they would have considered in their ROI calculations. This case is just a
corporate ROI decision based on a bit of game theory as such it deserves to be
treated as a game of chance that the plaintiff wanted to play and forced others
into suffering. not to mention the risk of collateral damage.

Sanity in this litigation lottery needs to start with juries, if the chance of
a gamble paying off were exceedingly low the gamblers would move on and the
courts could be freed up to hear cases about people rather than corporate

Windows vista, a marriage between operating system and trojan horse.

[ Reply to This | # ]

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