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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.

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Quite the opposite, I think | 286 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Quite the opposite, I think
Authored by: Anonymous on Thursday, May 10 2012 @ 07:33 AM EDT
If they have an arguable case, the parties have a right to be heard and to
submit the evidence to a jury.

The question of non-eligibility for copyright of the SSO, while it may seem
obvious to you and I, is far from settled law. In this case, there is a
certainty of appeal and the judge here has to look forward to the what-ifs of
error and appeals.

Since the evidence for possible infringement of SSO overlaps to a great degree
with the other issues being tried, it makes sense to hear the evidence and let
the jury decide if there are sufficient facts for a finding of liability in the
event that the SSO is eligible for copyright (whether this is determined by this
judge or an appeals court).

Contrary to the reporting by a number of journalists, there has been no finding
that Google infringed Oracle copyrights. Only that, on the facts and evidence
presented, the SSO of the Android implementation was sufficiently similar to
have infringed a valid copyright if such exists. That is the limit of the jury's
finding. The jury was unable to decide if the infringement might have been fair
use.

It is up to the judge to decide the matters of law - here, whether the SSO is
eligible for copyright under applicable statutes.

Traditionally, judges prefer the jury to dispose of the issues, if possible,
because a finding of fact by a jury can be challenged only if it is manifestly
unreasonable or if the judge made an error in allowing or dis-allowing evidence
which might have prejudiced the jury. Thus, the jury's finding of fact is much
stronger that the judge's findings on issues of law and is nearly impossible to
successfully appeal.

This is deliberate and derives from the seventh amendment which generally makes
reasonable findings by a jury immune from review or re-litigation.

Further, allowing the jury to hear the evidence and make findings of fact
provides greater fairness for both sides of an issue. Given that you have a view
about who should prevail, you might not like that; but the law and the courts
are intended to provide fairness and justice for everyone, not just those we
agree with.

I think that the judge's instructions were clear and fairly drawn for the issue
that the jury had to decide.

If there was error by the judge, in my view, it was in his definition of what
constituted the "work as a whole." Google can argue that point on
appeal...

I might also add that, having heard the evidence from both sides, the judge
seems to be developing a much clearer picture of the issues of law and it is
possible that the approach you criticise may have crystalised the judge's
understanding of the issues and the applicability of the law (Sect 102b) in the
direction you think is correct.

[ Reply to This | Parent | # ]

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