Judge Alsup: "It seems a little hard on the judge that the
complaint could say... that we would get all the way to the end of the trial and
I have to instruct to the jury as to what the scope of the decision is supposed
to be."
This never made any sense to me. Shouldn't the judge
decide on the rule of law before bringing the jury in? Why waste the
jury's time if the judge might end up deciding that APIs can't be
copyrighted?
I can see why the judge might want to avoid having to commit
himself one way or the other on this issue but in my (IANAL) opinion he has
already waited far too long. The jury has spent four days looking at evidence
on an issue that the judge may render moot by deciding APIs can't be
copyrighted.
It looks like it is a huge mess now. If he eventually
rules in Google's favor on the copyrightability of APIs then wasting the jury's
time with the API copyright issue may adversely prejudice Oracle in the eyes of
the jury on Oracle's other complaints. OTOH if he decides to stay out of it and
let the jury decide the API copyright complaint based on the facts then he has
implicitly reversed the previous case law on this issue regardless of which way
the jury eventually decides. ISTM the judge has already painted himself deep
into a corner. The longer he waits the more it appears he has implicitly sided
with Oracle on this issue even as it becomes clearer and clearer that he should
decide in favor of Google (and the software industry in general).
If the
court had taken the time to come up with a precise definition for the "sequence,
structure, and organization" (SSO) of an API then Oracle would have almost
certainly lost in summary judgment. Almost all of Oracle's hopes are based on
the vagueness of this concept.
The very idea of the SSO of an API is absurd.
It is so poorly defined it is almost meaningless. But as soon as you pick a
definition and stick to it then Oracle will lose. Either the SSO will be
functional just like the names and signatures of the methods in which case it
can't be copyrighted or it will be extraneous to functional compatibility in
which case Google doesn't want to copy it and Oracle doesn't want to protect
it.
It is extremely unfair for the judge to question Google about the SSO
of the APIs when this is an ill-defined concept created by Oracle and given a
stamp of approval by the judge. The beauty of building a case around poorly
defined terms is that it excludes earnest, honest people from the debate.
Google has repeatedly told the judge in no uncertain terms that API SSO emperor
has no clothes. The judge responded by questioning Google on the color, form,
and fit of those non-existent clothes.
Late is better than never.
Require that Oracle present a definition of the SSO of an API that you can
understand. Have them show you clearly what parts of the API are SSO and what
are not. One thing I can guarantee you: if the judge doesn't understand what
the SSO of an API is then the jury won't either and this part of the trial will
be a farce.
Have Oracle explain what the SSO of an API is with
specificity (which is the bane of BS&F). The beauty of this is that
it doesn't matter how they choose to define it. Once they are stuck with one
specific immutable definition, they will lose. No jury required.
--- 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 | Parent | # ]
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