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| Oracle v. Google - Some Background on the Copyright Damages Issue ~mw |
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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.
With respect to rangeCheck and the decompiled files, Oracle led Google and the Court to believe that it would only seek statutory damages. That is the $150,000 figure you see thrown around. But Oracle did not stipulate to statutory damages, and consequently, it cannot be bound by the statement of its counsel.
Having received a verdict that rangeCheck and the decompiled files were infringed, Oracle announced that it would, in fact, seek not only statutory damages but also damages in the form of infringer's profits arising from that infringement. There were two reactions to Oracle's position. The Court was astonished given the seeming trivial nature of the infringement, and as Google pointed out, Oracle was wrong in stating it could seek both statutory and actual damages - Oracle must choose. However, Oracle does not have to make that choice until final judgment is rendered, meaning it may know what the alternative damage amounts are, i.e., Oracle can go for actual damages in the form of infringer's profits, but if the jury disagrees or agrees but only awards a modest sum, Oracle could still elect statutory damages. So the $150,000 amount is the baseline, not the ceiling.
The other position that Oracle has advanced is that it has satisfied its burden, i.e., that there was infringement and that there is a causal relationship between that infringement and Google's profits from Android. In turn, according to Oracle, the burden is now on Google to demonstrate that the profits subject to Oracle's claim should be reduced. [You can read Oracle's arguments in 1106.]
Google argues Oracle is wrong on two counts:
- The law doesn't say that the copyright holder can recover both infringer's profits and statutory damages. It says that a copyright holder can recover actual damages AND infringer's profits OR statutory damages. Google is absolutely correct on this point. See 17 USC Sec. 504(c)(1).
Google is wrong to assert that Oracle must make the election (or already has made a binding election) of infringer's profits over statutory damages at this time. That election may be made any time prior to final judgment.
- Oracle must offer more proof than it has in establishing a causal relationship between the infringement and Google's profits. Oracle argues rangeCheck is in Android and, therefore, all of Google's Android revenues are subject to Oracle's claim. Most of the arguments that Google makes in its response to document 1106 (see 1114) are really arguments about why the award should be limited, not that Oracle hasn't established a causal connection between rangeCheck and Android, and therefore between rangeCheck and the Android revenues. In Google's motion for summary judgment on the issue (1125) Google points to a number of cases, including Polar Bear for the premise that Oracle must do more than throw up Google's gross revenues. True enough, Polar Bear says that, but you must take that holding in context. The Polar Bear facts would equate to Oracle simply pointing to Google's gross revenues from all sources, not just Android. The other cases cited by the parties draw this same line. I suspect the Court will find Oracle has, in fact, met its obligation (i.e., rangeCheck infringed, rangeCheck is (was) a part of Android, and here are Google's gross revenues from Android, both direct and indirect) under Polar Bear. It is far less clear that Oracle has satisfied this obligation with respect to the decompiled files since those decompiled test files were never in Android. It would seem Oracle would need to show that Android benefited from those decompiled test files.
I expect the Court to deny Google's motion for summary judgment with respect to Oracle's claim for infringer's profits and for this matter to go to the jury. At that point Google can advance all of its arguments about why those profits should be limited, and a number of those arguments are persuasive:
- The small amount of code involved when compared to all of Android;
- The fact that rangeCheck has not been present in all versions of Android (specifically, it wasn't in the originally released version nor is it in the present version);
- The qualitative insignificance of rangeCheck;
- The lack of performance benefits from the presence of rangeCheck in Android; and
- The cost of development of rangeCheck when compared to the cost of development of all of Android.
However, I just don't see the Court denying Oracle its shot, and Google will bear the burden of proving why the damages should be limited.
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| Authored by: PolR on Monday, May 14 2012 @ 11:25 AM EDT |
| If any are needed. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 11:26 AM EDT |
That looks like a bit of a facepalm of a law to me, but
whatever.
I must be misunderstanding though - I don't see how the $150k
is a baseline though - since that's the maximum statutory
damages, presumably they could conceivably be offered
statutory of minimum ($600 ish) or a jury amount of $1000.[ Reply to This | # ]
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| Authored by: PolR on Monday, May 14 2012 @ 11:26 AM EDT |
The indications for posting in HTML and making clickable links are in red text
below the comment editing box.[ Reply to This | # ]
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| Authored by: nola on Monday, May 14 2012 @ 11:27 AM EDT |
As has been noted before, sending this to the jury rather than
having the Judge decide means that there's one fewer thing to appeal.[ Reply to This | # ]
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| Authored by: PolR on Monday, May 14 2012 @ 11:28 AM EDT |
| Please place the news pick title in the comment title for ease of reference. [ Reply to This | # ]
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| Authored by: PolR on Monday, May 14 2012 @ 11:29 AM EDT |
| Please keep up the good work. Thanks to all the volunteers. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 11:29 AM EDT |
| http://twitter.com/#!
/Feldegast
raw:
http://twitter.co
m/#!/Feldegast/oracal-vs-google-
trial
With many thanks to Feldegast and
the reporters[ Reply to This | # ]
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| Authored by: DannyB on Monday, May 14 2012 @ 11:34 AM EDT |
Let me point out two Oracle arguments:
1. Oracle argues that a casual connection between infringement and profits,
entitles Oracle to all profits.
2. Oracle has argued that blank lines count in the infringing 9 lines of code.
So a casual connection from an infringing blank line to your profits entitles me
to ALL of your profits. Now pay me $6 BILLION DOLLARS please.
Gee, that reminds me of a SCO theory. JFS developed in OS/2 and AIX. IBM uses
JFS from OS2 to develop JFS for Linux (not the JFS from AIX). But AIX is
descended from UNIX. And SCO is descended from UNIX. Put all that together
somehow and establish a connection, including some backwards-in-time connections
from SCO to Linux. Now pay me $5 BILLION.
---
The price of freedom is eternal litigation.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 11:45 AM EDT |
Sounds like good old American jurisprudence.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 11:57 AM EDT |
This whole unhappy saga is being drawn out unnecessarily, and with each passing
day, the jury's verdict on the copyright phase is being demoted since it was
conditional on the judge's ruling.
Alsup's legal games are doing legal mischief to the jury.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 12:20 PM EDT |
Since rangeCheck is only a error check, Google's best defense would be to take
whatever version of Android infringed, compile it and flash it on a phone, then
compile another version without rangeCheck and flash that on a phone, and show
the two phones running identically to the jury. If rangeCheck does not change
the behavior of Android, then it probably has little to do with it's success or
profits.
Regards,
-Jeremy[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 12:32 PM EDT |
There is no way RangeCheck is entitled to copyright protection. Put thirty
programmers in a room, tell them what the routine needs to do, and twenty of
them will write RangeCheck just as it is. There is no content in that routine
that can be copyrighted.
Suing over "RangeCheck" is like someone named Bob suing every other
Bob that has ever said "Hi, my name is Bob."
This trial is a joke. The judge is a buffoon. Oracle is a sleazy back alley
thug. Copyright law in the US is corrupt nonsense.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 12:36 PM EDT |
Ok - I have a question. A programming language can be
copyrighted. But, to write a program in that programming
language, I am copying parts of that language, so - does
programming in a language violate the copyright of that
language (assuming the language is copyrighted?)[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 12:58 PM EDT |
Copying nine lines of code that you yourself wrote in a previous engagement is
worth six figures in statutory damages? There goes web development as a cottage
industry.[ Reply to This | # ]
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| Authored by: BJ on Monday, May 14 2012 @ 02:02 PM EDT |
| . [ Reply to This | # ]
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| Authored by: SLi on Monday, May 14 2012 @ 03:16 PM EDT |
I thought the statutory range was something like $750-$150,000
(don't remember the exact amounts, but I think it could be tripled for
willfullness). So how is the $150,000 number the baseline?
Wouldn't a jury need to decide the amount of statutory damages too,
unless the
injured party decides they are happy with the lowest possible
award?
So, if
the jury awards low infringer's profits and Oracle subsequently
elects
statutory damages, would the jury still need to decide them? [ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 14 2012 @ 06:59 PM EDT |
I think we established the seven decompiled source files didn't ship to
customers' phones. Did the seven decompiled source files ship to Android phone
makers? Or were they used only by developers of the Android system at Google?[ Reply to This | # ]
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| Authored by: xtifr on Tuesday, May 15 2012 @ 03:48 AM EDT |
Oracle argues rangeCheck is in Android
Was
in Android. Oracle may have found that it wasn't completely scrubbed
from the version control system, but it's not in any currently shipping phones
as far as I know.
This should figure into the calculations
somehow, if you assume that the amount per phone is greater than zero (which
seems a bit of a stretch, considering how trivial and easy-to-replace the code
was).
---
Do not meddle in the affairs of Wizards, for it makes them
soggy and hard to light. [ Reply to This | # ]
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