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is it more a question of a Matter of Fact | 270 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Is the jury up to the task and what is a 'matter of law'?
Authored by: Anonymous on Friday, April 20 2012 @ 03:29 AM EDT
No apology needed. It's been obvious to us from the start of this
case Judge Alsup didn't really know what an API is, and every time
Oracle offer him a conflicting definition he has to ask the question
again from another direction. It's possible by now he is playing
Oracle as an angler plays a fish...

[ Reply to This | Parent | # ]

The judge has me worried
Authored by: Anonymous on Friday, April 20 2012 @ 08:24 AM EDT
> Judge Alsup acts as if the question of whether "API's are
> copyrightable" is a matter of law that he will have to
> decide, not the jury.

Yes, but Judge Alsup has stated that he might ask the jury for an advisory
verdict. And there was the mention of the appeal. This has me worried that JA
may be looking for an easy way out. I think Judge Alsup has clearly demonstrated
multiple times that he understands that this case is developing new case law
with important ramifications for a whole industry. This case will be cited
alongside Baker vs Selden in many future software related copyright cases.

But Judge Alsup seems unwilling to take up the challenge of being the person to
write that new case law. This is a matter of personal ego, of course. Someone
like me with an ego the size of a house would be delighted to have this case. I
would already be working on my decision, revising and refining it based on every
new piece of evidence I hear, trying very hard to cover all my bases, to bring
in all the case law that has been presented. Knowing that there will be an
appeal I would work my ass off to produce a ruling that is so good that the
appeals court will basically just rubber-stamp it. I would want MY WORDS to be
the text quoted in the future, not the words of the appeals court.

That approach would have another advantage. It would make things a whole lot
easier for the judge. This case is a big mess (thanks mostly to the "fine
lawyering" of Boies et al) when taken in isolation. But from the POV of the
appeals court it becomes a lot clearer. When you take the wider view, look at
the development of decisions in this area and the bases used by the appeals
courts for justifying their decisions (very nicely presented in a text Google
recommended as secondary reading in a footnote), it becomes clear that, if we
leave aside the 3rd circuit, the winds strongly favor Google because the appeals
courts have the tendency to decide these cases with a look at the effects on the
industry at large. And there can be no question that a decision for Oracle in
the API question would hurt the industry.

While it may not technically be what a judge is supposed to do, writing the
judgement that is most likely to be affirmed by the appeals court, would make
many corner case questions disappear. But as I've said, Judge Alsup seems to be
a different kind of person, more willing to extricate himself from these issues
and to "delegate" them, first to the jury and then to the appeals
court. Which would be a real pity, because JA has demonstrated an excellent
technical understanding and would be very capable of writing a clear and strong
ruling against the copyrightability of APIs that would stand up to the appeals
court and would lay this issue to rest.

I have no doubt that in the end the API question will be decided in Google's
favor. The important question is how the decision will be phrased. Will it be a
strong unequivocal statement or a half-assed thing only applicable to OraGoogle
which leaves open the door for others to try the same thing again. The industry
needs the strong unequivocal statement, well phrased by someone who understands
the issues and can communicate them well. I think Judge Alsup would be the
perfect judge to write this decision. I'm not so sure about the 9th Circuit
(although I did enjoy the recent CFAA decision).

Anyway, I'm certainly looking forward to seeing the actors in this little drama
on video. For those who don't know: The 9th Circuit has a Youtube channel. So if
this case goes to appeal (and I take that as a given), chances are we'll get to
see at least the lead lawyers arguing their case on Youtube.

[ Reply to This | Parent | # ]

is it more a question of a Matter of Fact
Authored by: Anonymous on Friday, April 20 2012 @ 05:09 PM EDT

AFAIR Oracle argued during preparation, that Google copied portions of API
Specification. (as separate and distinct from the APIS, though they freely

This also appears on the challenged items list (Day 3, Challenged Item 6,
English language book), and (as I say AFAIR) that this is a question of fact
that has to be put to the the Jury.

For the most part, Google have admitted to much of the copying in the rest of
the items, but argue that it is de-minimis, merged, not protected, estopped,
licensed, and/or free to do as it chooses (which might be the same as not
protected)

So all bar item 6) should probably be a matter of law, but seeing as though we
are going to a Jury, we might as well do the whole lot, and if necessary based
on the presentation of the evidence, Judge A can decide as a Matter of law.

ISTM that it is the presentation of evidence that Judge A is looking to in order
clarify precisely what it is or is not that has been copied, and to get some
meat on the bones of the loose definitions used by Oracle.

From which he can then conclude that it is something that he can decide, or
something that he can ask the jury to decide, or something that he can ask the
jury to offer a decision/opinion on and and then decide.


But I'm just guessing and IANAL

[ Reply to This | Parent | # ]

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