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| Authored by: hardmath on Friday, April 27 2012 @ 03:40 PM EDT |
What Judge Alsup said is that he will rule on the copyrightability of the APIs
after the jury rules on infringement, assuming the copyrightability of those.
But I fear his instructions go beyond instructing the jury that the APIs might
be copyright protected. He has to go beyond that in some sense, because he has
to give the jury an "as if" world sufficiently connected to the
evidence of the trial so that such an otherwise bald assumption might have
meaning.
As I read the proposed jury instructions, he seems to have gone well over the
top in that regard. Gone is the premise that the Java programming language is
not copyright protected. Gone is the matter of law that mere names of files,
classes, methods, etc. are not copyright protected.
In place of which Judge Alsup offers some fairly damning (to Google's interests)
assumptions. SSO is copyrightable, no matter how functional, trivial, etc. as a
part of the "whole of a works" registration by Oracle. Oracle bears
no burden for proving any of the copyright ownership of components, leaving only
the defense that Google might argue the 37 APIs are a fair use or de minimus
infringement on the entirety of the Core Java APIs.
To stack the deck so heavily in Oracle's favor certainly suggests Judge Alsup
intends to rule the API's are not copyright protectable, but let's suppose that
he makes the ruling in a sloppy way and the appellate court rejects his ruling
on that matter. Does it leave the appellate court with the option of saying,
lucky thing, we don't need a retrial because the jury was instructed contrary to
how the judge ruled, so we can simply adopt the jury's verdict instead??
This would be manifestly unfair to Google because the jury instructions go far
beyond merely postulating a potential for APIs to be copyright protected to
postulating actual copyright protection, regardless of whether Oracle made any
such showing (and regardless of Google's Rule 50 Motion in particular). He's
"saved" the appellate court an ounce of trouble (ordering a retrial)
but taken pounds of burden off the plaintiff and loaded it onto the defendant.
We shall see, by and by, we shall see.
---
"Prolog is an efficient programming language because it is a very stupid theorem
prover." -- Richard O'Keefe[ Reply to This | Parent | # ]
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