decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
A Question on SSO | 275 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Corrections Thread
Authored by: ais523 on Monday, April 30 2012 @ 03:51 PM EDT
In case PJ, or one of our reporters, have made a mistake. Put the correction in
the title, to make it easier for other people to avoid reporting duplicates.

[ Reply to This | # ]

News picks
Authored by: feldegast on Monday, April 30 2012 @ 04:00 PM EDT
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Off topic
Authored by: feldegast on Monday, April 30 2012 @ 04:02 PM EDT
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Comes transcribing
Authored by: feldegast on Monday, April 30 2012 @ 04:03 PM EDT
Thank you for your support

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Tweets from the courtroom
Authored by: feldegast on Monday, April 30 2012 @ 04:05 PM EDT
https://twitter.com/#!/Feldegast

- --
IANAL
My posts are ©2004-2012 and released under the Creative Commons License Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

I have a bad feeling already...
Authored by: Anonymous on Monday, April 30 2012 @ 04:17 PM EDT
I hope I am totally wrong, but my gut feeling as a result of following this suit is the following: -

Google will be found guilty of cpoyright infringement. This infringement though, will be inconsequential because of Oracle (formerly SUN's) actions, especially having waited just too long to raise the matter.

[ Reply to This | # ]

What about § 102 (b) and the copyrightability of APIs?
Authored by: jbb on Monday, April 30 2012 @ 04:26 PM EDT
The judge cites it almost verbatim here:
Another statutory limitation on the scope of a copyright is that copyright never protects any procedure, process, system, method of operation, concept, principle, or discovery. Possibly such things can be claimed under the patent system or by trade secret laws but they may not be claimed by copyright.
But he seems to negate it in the very next sentence:
For purposes of your deliberations, I instruct that the copyrights in question do cover the structure, sequence and organization of the compilable code.
I think this is his way of keeping the jury away from deciding on the copyrightability of APIs which is a matter of law. It is not clear to me that this is prejudicial to Google but neither is it clear that it's not. One concern is that Google's right to use the APIs should propagate to a right to use a non-verbatim copy of the documentation. For whatever reasons, it seems that the court is veering away from Samuelson's suggestion of using § 102 (b) directly in such cases instead of using fair use.

Maybe appearances are deceiving. There are many indications that Judge Alsup is planning to make a ruling on § 102 (b) after the jury reaches their verdict. The upside is that Google might end up winning via fair use and via § 102 (b).

OTOH, I really have to wonder what will happen to the rest of the trial if the jury rules in favor of Oracle only to have the judge (eventually) overturn their decision as a matter of law. ISTM it would be prejudicial in the extreme if the jury went into the patent portion of the case thinking Google had already violated Oracle's copyrights when in the eyes of the law they had not. Likewise, if the judge lets the jury know he is overruling their decision before the patent part starts then that could also cause problems that either party could claim were prejudicial.

I think and I hope this is all going to work out just fine but their is a potential for it to create a gigantic mess that will definitely require a re-trial. If the jury decides in Google's favor then everything is hunky-dory. The possibility of a big mess only opens up if the jury decides in Oracle's favor.

IANAL and I have not studied law. One thing I do know is that this is one smart and savvy judge. He was trying to thread a needle very carefully in the midst of three powerhouse law firms who were exerting as much pressure on him as they could. My guess/hope is that he realized Google has a much strong case and was much more likely to win the jury verdict so he designed things so everything worked out smoothly and air-tight in that situation. He left all the loose ends for the situation where Oracle won because he believed that outcome was far less likely.

---
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 | # ]

It has been over an hour now
Authored by: Anonymous on Monday, April 30 2012 @ 05:03 PM EDT
No tweets seem to show anything changing, so I assume there is no verdict
today.

[ Reply to This | # ]

A Question on SSO
Authored by: sproggit on Monday, April 30 2012 @ 05:46 PM EDT
Of all that we have seen and heard through this trial, the one thing that has
really caught me by surprise was the decision of the Court to instruct the
jury that the selection, structure and organisation of an API can be
considered copyright-able.

Though not a lawyer, I have never heard of another case where this has
been found to be the case. In the instant case then, it seems as though we
are witnessing case law in the making. Is that so? Is anyone else aware of
a scenarios in which a jury our Court has operated on this basis?

As a follow-up question... Assuming a scenario in which the jury finds that
Google did infringe the SSO of the API, then I can foresee a Google
appeal. As Tekkies, we are all aware that this is not only daft, but that the
decision would turn the technology world upside down. The lack of
opposing case law, however, suggests that Google might struggle to have
such a decision set aside by an Appeals Court. Does anyone have any
knowledge of a scenario like this - I.e. where a ruling is given that just
upsets logic as we know it? What happens? Is this one of those cases that
exercises the maxim: "The law may upset reason, but reason may not
upset the law..."?

[ Reply to This | # ]

Day 11 at the Oracle v. Google Trial -- Closing Statements, Goes to Jury ~pj - Updated 2Xs
Authored by: Anonymous on Monday, April 30 2012 @ 06:10 PM EDT
Wouldn't it be great if Google won this one...?
...Owner cannot prevent someone from fair use. "If it would advance the public interest". Google made fair use that was fully known to Sun by making Android fully available to the public for free. It was a huge benefit to the public.
Assuming jury decisions count as precedent (do they?), then suddenly, all software would be free software! :-)

[ Reply to This | # ]

"Exhibits are ready for the jury"
Authored by: Anonymous on Monday, April 30 2012 @ 06:21 PM EDT
I have never served on a jury, do they get access to all of the presented
exhibits presented in the case? Are they allowed to pull up and read any of them
at whim while deliberating? if so how? There is quite a pile!

[ Reply to This | # ]

the billion dollar question, what is a Java SSO?
Authored by: Anonymous on Monday, April 30 2012 @ 06:47 PM EDT
I am dense. Please explain what a Java SSO might be.

I am able to understand what is a music SSO by listening. I don't want any
dummied down analogies, please!

Next, please explain why the judge clearly uses "API" inconsistently
throughout.

[ Reply to This | # ]

Poor SCO would not have liked Judge Alsup at all
Authored by: Anonymous on Monday, April 30 2012 @ 06:50 PM EDT

Heh, I love this part:

Cannot weigh just by number of witnesses, but the convincing force of the evidence
All those witnesses SCOG had to testify that the APA really did transfer the Unix copyrights after all!

RAS

[ Reply to This | # ]

Day 11 at the Oracle v. Google Trial -- Closing Statements, Goes to Jury ~pj - Updated 2Xs
Authored by: Anonymous on Monday, April 30 2012 @ 06:57 PM EDT
Of course the lawyers are friendly they all make loads of money form these
lawsuits.

"Nice use of that surprise fileing. Allowed us to bill for 200 more hours
at double overtime."

[ Reply to This | # ]

Day 11 - If I were in the jury, I'm confused
Authored by: cbc on Monday, April 30 2012 @ 07:16 PM EDT
Copyright it about what is says. Is the text copied? Clearly the API's are the
same "text". Some other stuff looks similar. Some other stuff is
identical. Because I am a nerd (IANAL) I believe it is minimal.
Patent is about what it does. Does what it does do the same things in the same
way as the granted patent?
My vote would say only if the former were true is there a copyright legal
problem.
Oracle's lawyers are trying to confound. Google's lawyers have not made this
gulf big enough.

[ Reply to This | # ]

An Idea of what can be done if API's found to be copywriteable
Authored by: Anonymous on Monday, April 30 2012 @ 09:06 PM EDT
One interesting thing that could happen is that if API's suddenly have copywrite
then lots of companies that produce software that implement API's would have to
issue new license agreements so that people can feel safe going forward using
their IP. But if I was writing up such a general copywrite license for people
to use the API declarations and there SSO then I would add a reciprocal clause
saying that anyone who has in the past or now litigated to stop others using
their own API's are excluded from this license. With maybe an exception to this
if the company agrees to withdraw all claims and never do this again etc (If
they do this then they can get copywrite to these API's as well).

Then you would just need a few of the many companies that Oracle currently
consume API's from to implement this. The great thing is they don't have to
spend money taking Oracle to court. They just have to implement this to make
there other customers happy that they are safe and then send some letters to
Oracle letting them know that they may be infringing their copywrites and ask if
they would like to negotiate a license for use of this copywritable material or
conform by not claiming it on their own API's.

It would only take a few big players to implement this and Oracle would not have
much choice but to back down on API copywrites.

Anyway just a funny idea.

Michael

[ Reply to This | # ]

shakes hands
Authored by: Gringo_ on Monday, April 30 2012 @ 10:32 PM EDT

[ adjourns ].

Mr. Van Nest shakes hands with Mr. Jacobs and Mr. Boies. I think you could sum it up like this: Whether our clients win or lose is as yet undecided, but whatever happens, both our law firms walk away winners. We've both made some big bucks here together. Let's get together later and drink to our continued success!

[ Reply to This | # ]

shakes hands
Authored by: Gringo_ on Monday, April 30 2012 @ 10:46 PM EDT

[ adjourns ].

Mr. Van Nest shakes hands with Mr. Jacobs and Mr. Boies. I think you could sum it up like this: "Whether our clients win or lose is as yet undecided, but whatever happens, both our law firms walk away winners. We've both made some big bucks here together. Let's get together later and drink to our continued success!"

[ Reply to This | # ]

I almost don't care what the jury decides.
Authored by: Anonymous on Monday, April 30 2012 @ 10:46 PM EDT

While it would definitely be great if the jury finds for Google, even if they do I am pretty certain the judge is going to rule for Google in their summary judgment motions. He really seemed to get by the end of the trial.

Of course, it would be best for the jury to also find for Google. That would pretty much kill any chances of success on appeal.

[ Reply to This | # ]

Who decides ownership?
Authored by: nutmeg on Tuesday, May 01 2012 @ 01:52 AM EDT
The judge said:

"Oracle must prove that the work is original, and that Oracle owns the
work. No argument from either side on ownership. Oracle says that the
copying is more than de minimis. These are issues for you [ the jury ] to
decide."

but the jury form doesn't have an ownership question. Can the jury
decide that Google did copy something, but Oracle have not proved they
own it, hence no infringement? Or will Judge Alsup decide on this after
the jury's verdict?

---
perl < /dev/random # Try something new today

[ Reply to This | # ]

Transformation as the Joker?
Authored by: Anonymous on Tuesday, May 01 2012 @ 05:30 AM EDT
Of course it is a transformation.

I have been way too busy picking at the nothing left in the details (SSO v
whole, source v. document similarity v. dentity, 166 v 37 v.android) and forgot
the big picture.

The only witness testimony I can recall (from my inadequate memory) is Full
Stack versus Horizontal platform, and I don't recall Oracle really challenging
that overly,

It's not mentioned in the rule 50

Android does not need to be compatible with Java
Java just needs to work on Android.

Oracle do not even attempt (from the transcript) to rebut the transformation
argument, they get hung up on SSO.

Well played Mr Van Nest.

[ Reply to This | # ]

McNealy on Schwartz official company CEO blog
Authored by: Anonymous on Tuesday, May 01 2012 @ 05:48 AM EDT
Surely there has to be some comeback for testifying under
oath something which is not only completely and demonstrably
false, but that he must have known to be false.

Is there any legitimate possibility that he could have
believed that the CEOs blog contained "not corporate but
rather personal things."?


[ Reply to This | # ]

Congratulations to the Reporters
Authored by: Ian Al on Tuesday, May 01 2012 @ 07:07 AM EDT
Great reporting and no tweets about reporters cheering out loud in court.

Two skills I don't share!

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Day 11 at the Oracle v. Google Trial -- Closing Statements, Goes to Jury ~pj - Updated 3Xs
Authored by: Anonymous on Tuesday, May 01 2012 @ 08:01 AM EDT
I thought Schwartz's testimony that there was no basis for suit, in court, kind
of puts finish to the question.

[ Reply to This | # ]

"The decision must be unanimous."
Authored by: Anonymous on Tuesday, May 01 2012 @ 11:31 AM EDT
I thought that this was a civil case. Don't civil cases require "a
preponderance of the evidence" and a "simple majority" vs.
"beyond reasonable doubt" and "a unanimous verdict" for
criminal cases?

[ Reply to This | # ]

Combat Pay
Authored by: jonathon on Tuesday, May 01 2012 @ 11:36 AM EDT
Is Oracle paying MOG the combat pay she wanted from SCO?

[ Reply to This | # ]

SW Copyrights Based On Unmeasurable SSO effectively Pure SW Patents
Authored by: Anonymous on Tuesday, May 01 2012 @ 03:05 PM EDT
The scope of “all non-literal elements of expression” includes separately
structure, sequence, and organization. However, the “structure, sequence, and
organization” (SSO) chimera has not been defined for Java applications or as
legal litmus tests in this courtroom. In this case, SSO has been conjured as a
pronoun representing anything the jurist is thinking at the moment. Early on,
the jury must wrestle with this smoke screen. This has been a coherent
strategy.

A universally held theory requires that “all non-literal elements of expression”
in Java source code be restricted to “elements of mathematical algebra”. Emil
Post developed the early language translation models as algebras called string
rewriters (abstract compilers). Alan Turing developed universal machines as
process algebras (abstract virtual machines). Alonzo Church developed the Lambda
calculus to represent partial recursive functions in formal language (software’s
most general representation of source code’s semantics). Both Lamdba calculus as
a theory and Java as a practical implementation language are existential proof
that Java source code SSO is unvarnished mathematics. Show me a court that finds
otherwise because that would be equivalent to putting evolution on trial…again.

Humorously, SSO does not copy right. SSO is LL…aughable grammar.

Seriously, someone is staking claim to the global Information infrastructure,
reaching way beyond Java and way back to the first computers.

In parallel, three perspectives unite lines of reasoning within the theory:
Claim: all Java code fragments are literal expression of Java syntax.
Claim: all Java grammar fragments are literal expression of the Java language
specification.
CLAIM: all Java algorithms, procedures, and data are partial recursive
functions. In particular, data is a constant function. Beyond that, nothing else
overlaps Java source code or byte code.

“partial” means there is a probability the function could fail to complete
(bug).
“recursive” means the function exists as one entity in a closed algebra.
“closed algebra” means you can repeatedly combine simpler functions by standard
rules like z = x + y, where x and y might be many different data types and “+”
might have synonyms like add(x, y) or “z y x add store”. Any program begins with
the first byte.
“function” is defined on Wikipedia. The court could reference the Wiki and so
put things the ‘Net.

Example: An API is a code fragment but definitely not the software package
because to be so would mean there is no API for the package. An API element is a
grammar fragment that defines the syntax of the information passing through a
communications channel between functional black boxes, with the black box in the
package on one side of the channel. A method is a function associated with a
class. A function call signature is just the constraining template for a
recursive function call/return. Sometimes data structure templates must
accompany the simple function signature as a composite definition.

If you understand this, you can follow everything from Frege and Russell up to
today. A cakewalk.

We are seeking what is copyrightable versus what is protected from copyright
related Java source code. Further, we are seeking what is fair use of Java APIs.
Many other applications would follow.

Unfortunately, the jury instructions irreversibly conflate API, package, SSO,
big size, complexity…of Java source code.



Application of the theory:
structure + sequence + organization not equal SSO
blind + stubbornness not equal BS

Yes, dumb joke.
But the heavy players in the courtroom are playing a joke. Some have been
working on this throughout the SCO case that was organized in 2000 and filed in
2001. This is not really simple, about only Java, or strategically aimed at
Google. All this comes long after 1991-2 when UNIX copyrights had been settled
(one example, University of California). Back then, order had been established
in the industry only to have new chaos erupt with Microsoft, Netscape, Novell,
SCO, IBM, Novell, Oracle, Google. This threatens commerce and America. This case
has morphed into a different, bigger case.

This court’s jury instructions conflate SW copyright with pure SW patent by
design. It would now be illegal to write software because all software violates
the IP of some existing software (first to file doctrine). This court finds all
list sort, matrix operation, conic section drawing, and accounting software, as
examples, to infringe existing copyrights based on SSO of abstract algebra
BECAUSE it is expressed in a programming language. Software would always violate
US law because US law would now be inconsistent.

Software has nothing relevant in common with music, novels, poetry, quotations
of past presidents, photographs, or advertisements. Those analogies are
distractions. Software does include accounting systems, and software development
is the US does bear clear analogies to accounting processes/systems in the US
right down to the law. Evaluating outcomes based on US accounting and software
might prove valuable while exploring outcomes.

Analogy: recursion, it’s turtles all the way down.

[ Reply to This | # ]

Tinfoilhat mode on
Authored by: Anonymous on Wednesday, May 02 2012 @ 08:18 AM EDT
I think Oracle/BSF knew Phase 1 was bogus.
It was more of the "through enough dirt at someone, something will
stick"-kind, to spread FUD in the hearts of the jury.
"Look, they copied, they even admitted it, they just got away on some
details".

Classic BSF play, they know that a jury does not get the tech, esp. not for
phase 2 (argument for Phase two: they had to copy, this patent is integral for
compatibility/function, Google can't have it both ways, and those emails about
IP, not just trademark/name), so they want to go before a jury fast, because
they know a jury can be influenced.

Watch out Van Nest, it's a trap...

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )