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| Authored by: feldegast on Tuesday, May 01 2012 @ 04:00 PM EDT |
Dan Levine @FedcourtJunkie
According to my fellow scribes the Oracle/Google jury has
left for the day- no verdict yet. On to tomorrow!
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IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
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| Authored by: Tkilgore on Tuesday, May 01 2012 @ 11:30 PM EDT |
From an article linked by one of the tweets, we learn:
"Essentially, one juror wanted clarification concerning Google’s use of
Java APIs from Apache Harmony.
"After Oracle counsel Michael Jacobs and Google attorney Robert Van Nest
sparred back and forth in front of the judge and were splitting hairs over the
wording for more than 20 minutes, Judge Alsup settled on the following response
for the jury members, who were briefly brought back out in the courtroom from
the deliberation room:
"Google makes no contention it had a license expressed or otherwise to
use the structure, sequence, and organization of the 37 packages of the
copyrighted work. This issue would be for the judge to decide in any event — as
would be any question of dedication to the public domain. You main not presume
that there was any such public dedication as this would be an issue for the
judge to decide. However, you may consider the evidence you have referenced in
the question of whatever value you think it has on the issues that are for you
to decide. Beyond this, the questions you have asked are already adequately
covered by my instructions."
I thought that the original jury instructions were confusing on these very
points. Moreover, I do not believe that I would be helped by this answer,
either.
The first point to notice here is that during the entire course of the trial
Google laid great stress upon the fact that Apache Harmony was what they copied,
if they copied anything at all. And I can not recall that anyone has said Google
has failed to conform to the Apache license. Which would lead one to believe
that Google _did_ believe it had a license to copy from Apache Harmony and
everyone else believed so, too. However, that simple-minded interpretation is in
conflict both with the original jury instructions and the not-so-very-clarifying
answer as well.
Of course, I suppose it is literally "true" that "Google makes
no contention it had a license expressed or otherwise to use the structure,
sequence, and organization of the 37 packages of the copyrighted work" --
for the reason that Google did not and does not believe that this SSO is
something which can be subjected to a license in the first place. Nevertheless,
Google admits copying copiously from Apache Harmony, which Google claims was a
legally clean variant of java, and does not admit any such copious copying from
Sun. So, when Sun did not try to shut down Apache Harmony, seemingly agreeing
that Apache Harmony had a right to publish its project code, and Google copied
from Harmony that which Sun is now suing Google about, then how would I, as a
juror, be able to understand an instruction in which I am ordered to assume that
Google had no license at all?
As I said, if I were a juror it would be very difficult for me to understand
just exactly what I am supposed to decide, if it is expressly said that
"This issue would be for the judge to decide in any event — as would be any
question of dedication to the public domain. You main not presume that there was
any such public dedication as this would be an issue for the judge to
decide."
The above means more than it says, in context. It says that the jury is not
supposed to "presume" but it also says that this question is not for
them to decide but is instead reserved for the judge to decide. If I were a
juror, I would at this point actually be wondering what the jury is supposed to
be doing in this trial in the first place. If the jury is not allowed to
"presume" that is understandable. But if the basic questions of the
whole trial are issues which are reserved "for the judge to decide,"
then why, I would wonder, has a jury been convened at all? Why, I would wonder,
have I been asked to sit and hear all of this evidence if I am not supposed to
decide anything and I am not even given a clue what the judge is going to decide
about the matters which he has taken out of my hands, as a juror?
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