In other words, he was creating new law there. He was setting
precedent that other judges will be expected to follow.
Creating new law, yes, setting precedent that other judges
will be expected to follow, no; trial court decisions, while they may be
persuasive, are not binding authority in future cases (not even in those in the
same court.)
(They are generally binding in future disputes between the
parties to the case in which they were issued, but that's res judicata rather
than precedential authority.)
OTOH, Alsup knows that this is going to be
appealed, and has shown a keen interest in economy of justice throughout this
trial, so he's done what is necessary both to keep the appeals court's job
easier on appeal, and to keep the district court's job easier in the event that
appeal results in the case being remanded.
Assuming the appeals court
decision is published, it will create binding precedent within the scope in
which the appeals courts decisions are binding. Since this is going to the
Federal Circuit, a decision won't be binding on any district courts on the
copyright issues (including the APIs issue, since copyright isn't within the
FC's special subject matter jurisdiction), but any legal rulings the FC makes in
the case on patent -- which are unlikely to be as interesting outside of the
context of the instant case -- would be binding precedent on trial courts
nationally.
Which, aside from reviving the patent issues and getting the
case into a potentially-friendly court, may be a reason for Oracle to try to get
the case into the Federal Circuit, as a Ninth Circuit decision upholding the
District Court on the API copyright issue would be binding precedent throughout
the Ninth Circuit, while a Federal Circuit decision that upheld the District
Court on that issue wouldn't be binding in the Ninth Circuit or anywhere else
(well, I think it would if the issue arose later in the Court of International
Trade, which I think is the only Article III Court that is under the Federal
Circuit entirely rather than having the special subject-matter based appeal
route, but that's not as big of a deal as a binding decision in one the
geographic circuits.)
So if they lose (on API copyright) at the Federal
Circuit and the Supreme Court doesn't take the case, the next time they try to
make the API copyright argument (against someone who isn't Google) they start
with -- in terms of binding precedent -- essentially a clean slate. So its
arguably the least-risk appeal path if they expect to take another swing at this
issue.
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