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Google's Reply in Support of its Motion for Judgment as a Matter of Law ~pj
Friday, August 10 2012 @ 10:22 AM EDT

Google has now filed its Reply in support of its motion for a Rule 50(b) judgment as a matter of law regarding Count VIII of Oracle's complaint, or in the alternative for a new trial in the Oracle v. Google litigation. When it filed its motion for JMOL and Oracle filed its objection, I wrote that it was unlikely that the judge, the Hon. William Alsup, would change his mind or grant the motion. But reading this reply, I'm not so sure. Google points out something that I either missed or didn't weigh properly: that there is no evidence from the trial to support Oracle's opposition arguments.

Also, the lawyer for Dr. James Kearl, the independent expert appointed by the court, has filed with the court that he didn't hire anybody to blog or write treatises in support of anybody, titled "STATEMENT ON BEHALF OF DR. KEARL REGARDING RELATIONSHIPS WITH COMMENTATORS". This is in response to Judge Alsup's recent order requiring the parties to the litigation to reveal anybody they hired to write about the litigation. And Dr. Kearl's statement says: "This statement certifies that none of the persons or entities on whose behalf this statement is made has retained or paid any person or entity, including any authors, journalists, commentators or bloggers to publish in any manner any comment or analysis regarding the above captioned action." I don't think Judge Alsup meant Dr. Kearl, in that he wrote that "each side and its counsel" should so certify, but I guess this is one of those "in an abundance of caution" things.

Here are the filings:

08/07/2012 - 1230 - REPLY (re 1222 MOTION for Judgment as a Matter of Law on Portions of Count VIII of Oracle's Amended Complaint, or, in the Alternative, for a New Trial ) filed byGoogle Inc.. (Van Nest, Robert) (Filed on 8/7/2012) (Entered: 08/07/2012)

08/08/2012 - 1231 - Statement Statement on Behalf of Dr. Kearl Regarding Relationships with Commentators by John Lee Cooper. (Cooper, John) (Filed on 8/8/2012) (Entered: 08/08/2012)

Getting back to Google's claims of lack of evidence, here, for example, Google writes that there was no evidence presented at trial that a computer programmer or application developer would "recognize Google's copying of rangeCheck." You may say, "But of course they'd recognize it." Maybe, but without evidence, it shouldn't count. There has to be evidence, not assumptions.

Remember I just explained to you about claims having elements you have to prove, like touching all the bases when you hit a home run? It may seem like you shouldn't need to run around the bases. Everyone saw the ball go over the fence, after all. But the hitter must touch all the bases. Same with the law. You have a list of things you have to prove, and if you miss one, it will cost you, if anyone notices, and now Google is putting it up on the screen, so to speak, with a light shining right on it.

Google also says that there was no evidence at trial that the "decompiled files" are qualitatively significant. As to rangeCheck, there was some evidence -- Dr. Mitchell's testimony on behalf of Oracle -- but Google says it's not enough:

Oracle’s reliance on Dr. Mitchell’s testimony that rangeCheck is “useful” to the library in which it is located and that the rangeCheck code “has some subtlety” is insufficient to establish quantitative or qualitative significance.
Remember that the judge ruled earlier on the test files against Google, after the jury reached its decision that Google had not infringed them, stating that no reasonable jury could find these files de minimis because there was no evidence at trial contradicting Dr. Mitchell's testimony. So this judge showed that he notices whether or not there is evidence from the trial. He's very meticulous, so I am sure he'll check again as to whether there was any evidence that the files are "qualitatively significant", but reading his order, it seems to me he already did that, noting that it was Dr. Mitchell's testimony that using the copied test files, even just as test files, "would have been significant use". Ah, Google says, but does it matter? Are they significant, one of the elements? So Google is fine-tuning the question.

I'm not predicting anything, but as you saw in Dan Levine's article in Reuters this morning about the Apple v. Samsung trial, judges may make a ruling, then hear argument, and on that basis change their minds. It can happen. It could. I still think it's a long shot, but I don't think now it can be altogether ruled out.

The sticking point I see in the de minimis argument is that the judge views it that the measuring stick should be not J2SE platform but just each Java source code file in the Java platform. On that, though, Google again says that Oracle didn't present any evidence at trial to support that way of looking at it:

"Moreover, Oracle presented no evidence at trial that "[e]ach source code file in the Java platform" is "recognizable as a self-contained work."... Thus, even if it were possible to subdivide a registered work, there is no basis in the record to subdivide the J2SE platform file-by-file into separate "works."
That "no evidence" claim, if the judge confirms it by checking the trial transcripts, makes it at least conceivable that the judge could change his mind. Google also said in its motion that the judge's earlier ruling on this point was legal error, but that's more for the appeals court than for this judge, I would think. The whole thing is really for the appeals court, as Google said in its motion, which is why it's less likely the judge will change his mind now. However, if he doesn't rule on this filings before August 23, that's the date for oral argument on this motion. If it does go forward, I hope someone can volunteer to be there. This is one of two items still unresolved in this case, the other being Google's Bill of Costs. Judge Alsup still has to decide that matter too, and then we're done with the District Court phase of this litigation. Phase 1 of what could be many more. Appeals, then maybe remand, then maybe a second jury trial on whatever issues survive appeal.

Here it is as text:

*********************

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 191424
[email]
[address, phone, fax]

KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[email]
[address, phone, fax]

KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[email]
CHERYL A. SABNIS - #224323
[email]
[address, phone, fax]

IAN C. BALLON - #141819
[email]
HEATHER MEEKER - #172148
[email]
GREENBERG TRAURIG, LLP
[address, phone, fax]

Attorneys for Defendant
GOOGLE INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

_________________

ORACLE AMERICA, INC.,

Plaintiff,

v.

GOOGLE INC.,

Defendant.

___________________

Case No. 3:10-cv-03561 WHA

GOOGLE’S REPLY IN SUPPORT OF
MOTION FOR RULE 50(b) JUDGMENT
AS A MATTER OF LAW ON PORTIONS
OF COUNT VIII OF ORACLE’S
AMENDED COMPLAINT, OR, IN THE
ALTERNATIVE, FOR A NEW TRIAL

Date: August 23, 2012
Time: 8:00 a.m.
Dept.: Courtroom 8, 19th Floor
Judge: Hon. William Alsup

I. INTRODUCTION

The Court should grant Google’s motion for Rule 50(b) judgment as a matter of law (“JMOL”), or in the alternative, for a new trial (Dkt. 1222). None of the arguments Oracle raises in its Opposition (Dkt. 1227) adds to the parties’ prior briefing on these issues or compels a different conclusion.

II. ARGUMENT

A. The J2SE platform is the “work as a whole.”

The J2SE platform is the work Oracle registered with the Copyright Office and the copyright in the J2SE platform is the copyright that Oracle accused Google of infringing in this case. Dkt. 36, Ex. H; see also TX 464 and 475. As a matter of law, the registered work is the “work as a whole.” Moreover, Oracle presented no evidence at trial that “[e]ach source code file in the Java platform” is “recognizable as a self-contained work.” Dkt. 1227 at 3:1-2. Thus, even if it were possible to subdivide a registered work, there is no basis in the record to subdivide the J2SE platform file-by-file into separate “works.”

For all the reasons stated in Google’s JMOL motion and its prior copyright briefs, (Dkt. 955 at 5:2-12:2, Dkt. 984 at 5:1-10, Dkt. 993 at 3:9-6:5, and Dkt. 1043 at n. 9), which are incorporated herein by reference, the complete J2SE platform is the “work as a whole” for the infringement analysis.

B. The rangeCheck function and the “decompiled files” are de minimis
as a matter of law.

The rangeCheck function is de minimis as a matter of law when compared either to the millions of lines of code in the J2SE platform or to the 3,179 lines of code in the Arrays.java file.1 Oracle’s reliance on Dr. Mitchell’s testimony that rangeCheck is “useful” to the library in which it is located and that the rangeCheck code “has some subtlety” is insufficient to establish quantitative or qualitative significance. See Newton v. Diamond, 388 F.3d 1189, 1195-97 (9th

1

Cir. 2004). Further, Oracle presented no evidence at trial that a computer programmer or application developer would “recognize Google’s copying of rangeCheck.” Dkt. 1227 at 6:9.

The “decompiled files” are also de minimis as a matter of law. The files are a tiny fraction of the code in the J2SE platform, and there is no evidence that they are qualitatively significant.

Therefore, for all the reasons stated in Google’s JMOL motion and prior copyright briefs (Dkt. 955, 984, 993, 1007, and 1043), which are incorporated herein by reference, Google’s JMOL motion should be granted.

III. CONCLUSION

For the foregoing reasons, Google’s motion for Rule 50(b) judgment as a matter of law, or, in the alternative, for a new trial should be granted.

Dated: August 7, 2012

KEKER & VAN NEST LLP

/s/ Robert A. Van Nest
ROBERT A. VAN NEST

Attorneys for Defendant
GOOGLE INC.

_______________
1 As explained in Section II.A., above, rangeCheck and the “decompiled files” should be compared to the J2SE platform as a whole to determine whether any copying was de minimis.


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