Day 4 produced little in the way of filings. Interestingly, Oracle did not file an updated witness list despite the fact that they have burned through a number of the witnesses on their last filed rolling list of witnesses. It's not that they are likely to get through all of the remainder on their last posted list before the end of today's session, but the Court's orders are that each party is to maintain a rolling list of its next ten witnesses to be called.
The parties did file a joint stipulation on the "deemed unidsputed issue" requested by Oracle and allowed by the Court with respect to the relationship between the APIs in Java and those in Android. (945 [PDF; Text]) The stipulation calls for the jury to be told that they are "substantially similar," with Oracle reserving the right to argue and show that they are virtually identical and Google reserving the right to argue and show that these 37 APIs are only a small part of either Java or Android.
Turning to statements made in the case so far, I would like to draw your attention to two. First, this statement from Michael Jacobs, lead attorney for Oracle, during his opening statement (as paraphrased by our in-courtroom reporter):
Jacobs (Oracle) - When you create something, you file a notice with the Copyright Office to strengthen your right. Then you register and get a certificate.
I really would like to think that Mr. Jacobs knows a bit more about copyright law than this. For example, your copyright arises when your work is embodied in a tangible medium of expression, i.e., you write it down or enter it into a computer. You don't have to file anything with the Copyright Office. If you want to sue someone for infringement, then the work in which you already claim a copyright needs to be registered with the Copyright Office. Such registration does nothing in terms of establishing whether the submitted work is actually protected by copyright except to the extent that it establishes that the work falls into a class of works that may be protected by copyright, e.g., computer software. This statement by Jacobs, which he has repeated on numerous occasions, is simply false, and it only serves to confuse the jury.
The second is covered by these statements taken together about APIs:
Jacobs (Oracle) - It's the design of the APIs that Google emulated.
Ellison says writing APis is 'arguably one of the most difficult things we do at Oracle.'
Let's accept for a second that APIs are hard to write. The question that has not being asked or answered so far is, why are APIs hard to write? Is it because there is so much creative expression necessary to decide how to group and organize the various components that go into the API? Or is it because, in developing an API, one must consider all of the technical elements that need to be addressed: the required inputs, the functions to be performed on those inputs, the outputs to be returned, and the interrelationship of each of those to everything else around it within the code.
From my Red Hat days I recall seeing a chart our engineering staff had developed showing all of the interdependencies among the various modules in Red Hat Linux. It was enough to make your head hurt. Yet, those dependencies and the modular design of Linux are part of what makes Linux such a terrific operating system. You could work on any module independent of the other modules so long as you respected the interfaces and interdependencies that existed among the modules.
I have to believe that this is what drives the difficulty of developing APIs, whether for Java, Linux, or any other software platform. The difficulty is not in how to package them, it is in determining all of these functional relationships. At least, that is my impression, and I invite those of you with far greater insight to chime in on this topic.
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Docket
04/19/2012 - 944 - Minute Entry: Jury Trial held on 4/19/2012 before William Alsup (Date Filed: 4/19/2012). Witnessess called. Further Jury Trial set for 4/20/2012 7:30 AM. (Court Reporter Kathy Sullivan; Debra Pas.) (dtS, COURT STAFF) (Date Filed: 4/19/2012) (Entered: 04/19/2012)
04/19/2012 - 945 - STIPULATION WITH PROPOSED ORDER Stipulation regarding selection, arrangement, and structure filed by Google Inc., Oracle America, Inc.. (Peters, Marc) (Filed on 4/19/2012) (Entered: 04/19/2012)
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Documents
945
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE INC.
Defendant.
CASE NO. CV 10-03561 WHA
STIPULATION AND [PROPOSED]
ORDER REGARDING SELECTION,
ARRANGEMENT AND STRUCTURE
Judge: Honorable William H. Alsup
STIPULATION
WHEREAS, the parties have met and conferred and have reached agreement regarding a
statement that Google made in a brief to the Court regarding substantial similarity of the
selection, arrangement and structure of API elements in the 37 accused API packages;
NOW THEREFORE THE PARTIES HEREBY STIPULATE AND AGREE as follows:
1. The following statement shall be read to the jury on the same terms as the other
statements in the Court’s Order Granting in Part Oracle’s Motion to Deem Issues Undisputed and
Denying Relief Regarding Statement to Jury (ECF No. 938):
For the 37 accused API packages, Android and Java 2 SE Version
5.0 have substantially the same selection, arrangement and structure
of API elements.
2. This stipulation is made without prejudice to Oracle arguing that the selection,
arrangement and structure of the 37 API packages are virtually identical between Android and
Java 2 SE.
3. This stipulation is made without prejudice to Google arguing that the 37 accused
API packages in Android and Java 2 SE are only a small portion of the Android and Java
platforms, respectively, as a whole.
ORDER
The foregoing stipulation is approved, and IT IS SO ORDERED.
Date: _________________
_______________________
Honorable William H. Alsup
Judge of the United States District Court
1
Dated: April 19, 2012
MORRISON & FOERSTER LLP
By: /s/ Marc David Peters
MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[email]
MARC DAVID PETERS (Bar No. 211725)
[email]
DANIEL P. MUINO (Bar No. 209624)
[email address telephone fax]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[email address telephone fax]
STEVEN C. HOLTZMAN (Bar No. 144177)
[email address telephone fax]
ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[email]
DEBORAH K. MILLER (Bar No. 95527)
[email]
MATTHEW M. SARBORARIA (Bar No.
211600)
[email address telephone fax]
Attorneys for Plaintiff
ORACLE AMERICA, INC.
2
Dated: April 19, 2012
KEKER & VAN NEST LLP
By: /s/ Matthias A. Kamber
SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[email address telephone fax]
DONALD F. ZIMMER, JR. (SBN 112279)
[email]
CHERYL A. SABNIS (SBN 224323)
[email]
KING & SPALDING LLP
[address telephone fax]
GREENBERG TRAURIG, LLP
IAN C. BALLON (SBN 141819)
[email]
HEATHER MEEKER (SBN 172148)
[email address telephone fax]
KEKER & VAN NEST LLP
ROBERT A. VAN NEST (SBN 84065)
[email]
CHRISTA M. ANDERSON (SBN184325)
[email]
DANIEL PURCELL (SBN 191424)
[email address telephone fax]
Attorneys for Defendant
GOOGLE INC.
3
ATTESTATION
I, Marc David Peters, am the ECF User whose ID and password are being used to file this
STIPULATION AND [PROPOSED] ORDER REGARDING SELECTION, ARRANGEMENT
AND STRUCTURE. In compliance with General Order 45, X.B., I hereby attest that Matthias A.
Kamber has concurred in this filing.
Date: April 19, 2012
/s/ Marc David Peters
4
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