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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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Google's Unmerited Damage From Oracle v. Google -- The FOSSPatents Factor ~pj
Authored by: Anonymous on Tuesday, July 24 2012 @ 10:49 PM EDT
Does anyone take Florian Mueller seriously anymore?

[ Reply to This | # ]

Corrections
Authored by: ankylosaurus on Tuesday, July 24 2012 @ 10:52 PM EDT
It can be useful to have 'wrong --> right' in the title.

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Off Topic Thread
Authored by: Tufty on Tuesday, July 24 2012 @ 10:57 PM EDT
Do a little sowing

---
Linux powered squirrel.

[ Reply to This | # ]

News picks
Authored by: Tufty on Tuesday, July 24 2012 @ 10:58 PM EDT
pick it or pick it apart

---
Linux powered squirrel.

[ Reply to This | # ]

Comes Documents
Authored by: Tufty on Tuesday, July 24 2012 @ 10:59 PM EDT
We've recently seen how much these are worth

---
Linux powered squirrel.

[ Reply to This | # ]

I like your style pj
Authored by: Anonymous on Tuesday, July 24 2012 @ 11:27 PM EDT
It always gladdens my heart when a "BESCI" gets his head handed to
himself with the shining light of the "Truth".

Thank you PJ.

[ Reply to This | # ]

Google's Unmerited Damage From Oracle v. Google -- The FOSSPatents Factor ~pj
Authored by: Anonymous on Tuesday, July 24 2012 @ 11:54 PM EDT
Florian is an established, known, bald-faced liar--at least to those who have
paid attention over the years. Unfortunately, there's not that many of us who
have been paying attention, and to answer an earlier poster's question: yes, I
know from personal experience that there are indeed people who listen to him.
Without the benefit of history and deep industry knowledge, his lies are well-
enough constructed and seemingly-plausible to take in a lot of people.

[ Reply to This | # ]

And where, pray tell, is the 'washup' report by FOSSPatents
Authored by: calris74 on Tuesday, July 24 2012 @ 11:59 PM EDT
This is what really gets up my goat with FM - He'll bang on
and on and on about how "certain" 'biased', 'bigotted',
'misguided', 'lying', blah, blah, blah "un-named bloggers"
should not be trusted, don't know what they are talking
about etc, etc, etc.

But as soon as he is wrong he just whistles sweet dixie into
the wind.

And try to correct his mis-statements on twitter and BAM!
onto the block list for you!

And then there is the ole 'Hey, check out how I am one of
the 50 most influential people in tech - Oh, and I you send
me a congrats I'll bless my Twitter feed with a bashful
thanks straight back at ya'.

Come on Florian, admit it (just once) that you read it wrong
and someone else read it right. Oh, I get it - 'experts'
can't be wrong and to admit as much would dilute your value
as an influential blogger...

[ Reply to This | # ]

Oracle aka Larry was always after ad money.
Authored by: David665 on Wednesday, July 25 2012 @ 12:14 AM EDT
The thing that stood out to me during the entire "Debacle From Oracle"
was Larry E wanted mobile ad revenue. They wanted a percentage of all of it. The
Java thing was nothing more then a ploy to get at Google's main source of
revenue.

Neither Oracle nor Sun could produce a phone. And Sun wouldn't bend on their
standard agreement by insisting that Google could ONLY use the entire Java API
or they couldn't call it Java. If Sun had bent to that simple request then
Android phones would be called Java Phones.

That and if I recall correctly there was a bit when other Sun patent attys were
after Google during this period. That pushed Google out the door and they
implemented only the API they needed for mobile.

Oddly enough FM only commented on the ad revenue and claiming it was
justification for fragmenting Java.

[ Reply to This | # ]

One way to clear...
Authored by: Anonymous on Wednesday, July 25 2012 @ 12:41 AM EDT
Would be for Google to sue Oracle for defamation. After all, FM
was an employee/contractor hired in that area whose views
were well known prior and he continued all the way to the end
to state that Google was guilty and needed to pay. In fact he
still continues on.

Then, Google could sue him for the ones prior. Maybe
Germany's legal code is stricter if SCO was any indicator.

[ Reply to This | # ]

Weren't the willfulness comments from the lindholm email?
Authored by: Anonymous on Wednesday, July 25 2012 @ 12:46 AM EDT
From what I recall the judge *did* appear to think willful infringement was
possible based off that email (there was a comment about "only needing that
email and the magna carta" or something to that effect). Obviously he
changed his mind when he had a better idea of what was really going on and who
Lindholm was (wasn't?), but I think saying he considered willful infringement
possible is still factual based on that. In any case, good luck proving he
thought it was impossible I guess.

Clearly FM is ah... interested in putting forward a certain viewpoint, but a
couple of your FM quotes are more or less just factual (there's a lot of pure
"speculation" in others/on the site in general for sure though). Take
your FM quote:

"The latest filing in Oracle v. Google12-- not long before a court hearing
that is taking place as I write these lines -- reveals that Oracle seeks to
increase the damages claims it previously presented. Those claims amounted to
2.6 billion dollars according to Oracle13 and to a range between 1.4 and 6.1
billion dollars according to Google14, and whatever the base amount may be, it
could yet be tripled if Google is found to have infringed Oracle's patents
willfully15 (a scenario that "appears possible" to the judge).

The hypothetical royalties that represent the largest part of those claims are
based on Google's mobile business, but it now turns out that Oracle additionally
wants to be paid for the positive effect of Android on Google's non-mobile
business."

I'm really not seeing anything unusual there. Oracle seeks to increase damages
- probably true. Oracle says Oracle is claiming billions - true. Google says
Oracle is claiming billions - true. Damages can be tripled on willful
infringement - true. The judge thinks willful infringement is *possible* -
arguable I guess, but I'd consider that true at the time (and the reverse - that
he thought willful infringement was *impossible* is very unlikely). Oracle
wants to be paid for everything they can (can't) concievably claim, not just
mobile royalties - true.

[ Reply to This | # ]

"Spit on this ball"?
Authored by: Anonymous on Wednesday, July 25 2012 @ 04:07 AM EDT

These days, it's pine tar.

[ Reply to This | # ]

"operate Android in an economically viable way"??
Authored by: Steve Martin on Wednesday, July 25 2012 @ 06:33 AM EDT

Mueller writes

[...] assuming, of course, that Google wants to operate Android in an economically viable way [...]

Why does it seem so hard for him to grasp that Google isn't "operating Andoroid" for profit? It's FOSS. Google doesn't make a dime licensing Android.

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

A posteriori probabilities?!?
Authored by: Anonymous on Wednesday, July 25 2012 @ 08:09 AM EDT
Except Google still doesn't have a license, it doesn't need one, and it's not going to pay for one, so his analysis was wrong. Also, the jurors did believe Mr. Lindholm. So his opinion that they were unlikely to be convinced was also wrong.
A probabilistic statement like "unlikely to be convinced" can't be refuted by the factual outcome, only by an analysis of the basis for such a statement, and correlating the basis with the statistics of earlier outcomes in comparable cases.

If I tell you you are unlikely to win the lottery, and then you go on and win the lottery, does that mean that my statement was wrong? No, it doesn't.

If you receive a voucher "you may have won a free gizmo-ball key pendant" and I tell you that you are unlikely to have won, then I am quite more likely to be wrong. Because there is good reason to suspect that the probability of "winning" is high.

But as long as the prediction was not "inevitable" or "impossible", a different outcome does not invalidate the prediction.

Figuring out prediction bias of "likely/unlikely" statements is a matter of statistics and confidence intervals.

I consider it quite likely the FM's predictions will be biased against subsequent happenings in court, and biased in a somewhat consistent manner.

But "he said likely, and it did not happen" is not exactly "proof". At best, it is part of the evidence needed for constituting proof with a reasonable confidence margin.

[ Reply to This | # ]

Thank you for the article. Florian is a waste of time.
Authored by: Anonymous on Wednesday, July 25 2012 @ 11:05 AM EDT
I usually do not read anything authored by him.

[ Reply to This | # ]

Methinks FM doeth protest too much
Authored by: hardmath on Wednesday, July 25 2012 @ 11:42 AM EDT
While in some narrow context FM may well argue that he's
only put out "factual reporting", often he' making
predictions of broad sweep.

If it be necessary to multiply examples:

In his current article on Nokia v. RIM, he has a factual
report of an amended complaint that adds three new patent
infringement claims. But he then adds a sweeping opinion
that Nokia's patent portfolio is "hugely stronger" than
RIM's, and tops that off with the prediction that as a
result, Nokia will "win this sooner or later".

My guess is, if FM's prediction goes wrong, he'll only ever
admit that he did factual reporting of that lawsuit.


---
"Prolog is an efficient programming language because it is a very stupid theorem
prover." -- Richard O'Keefe

[ Reply to This | # ]

Integrity and publishing
Authored by: Anonymous on Wednesday, July 25 2012 @ 02:36 PM EDT
The dishonesty of Mueller is apparent, but this type of thing is not new.
Certainly we have seen this before in the SCO v Novell and SCO v IBM cases.

We should not be suprised. This type of thing has been going on for centuries.
If you read any American history, you know that opponents of some of the
greatest Americans such as Washington, Adams, Hamilton, and Lincoln were victims
of the same things. Many times falsehoods were may up from whole cloth and
published as fact.

Even today in the political environment, we see many, many spots on TV and the
Internet where statements are taken out of context or completely false
assertions are made.

The calling out of falsehoods done here is very important. Integrity is earned.
PJ has earned it. Muckrakers like Mueller have not.

[ Reply to This | # ]

Flo is Flo's own worst enemy
Authored by: mcinsand on Wednesday, July 25 2012 @ 02:40 PM EDT
Thank you, PJ, for such a careful, thoughtful analysis. And, perhaps we should
thank Flo, as well, for providing so ample of a collection for us, so that we
need not guess where the real source of maliciousness and afactuality might be.


In Flo's complaints, I think we can safely use the psychological term of
'projecting.' He is malicious, he strays from the facts, so he sees others as
doing the same; he sees others as being likely to take his path.

This is also where Groklaw's efforts to be objective pay off, which is only one
way Groklaw and FOSSpatents are diametrically opposed. The ability to analyze
and stick to actual facts might be why Groklaw is rich in credibility, and Flo
is effectively bankrupt. Oh, he's still be able to support himself. His
history shows that he has no dignity to preserve nor, more importantly, no
hesitation to take a position no matter how riduculous, as long as he's paid.

[ Reply to This | # ]

Google's Unmerited Damage From Oracle v. Google -- The FOSSPatents Factor ~pj
Authored by: albert on Wednesday, July 25 2012 @ 04:09 PM EDT
I won't pile on Florian (it's probably getting a little hard
to breathe under there). The thing is, people want to hear
from 'experts'; they want 'analysis'. For jernalists, it
saves having to do a lot (or any), research. Citing
references is _required_ in serious papers. 'References'
are nice because you're not responsible for them, so you get
your point across without personal liability.

If you work in a pro-Microsoft shop, you most certainly will
use Florian, Laura, Maureen, etc.

Oh, and be sure to turn off comments.....

[ Reply to This | # ]

Using Questions as Weapons
Authored by: Anonymous on Wednesday, July 25 2012 @ 05:35 PM EDT
This is similar to the Fox News way of "journalism" and how politics
is done these days - ask a question that is damning in its assumptions, and the
more effort that is required to prove that the question is based on false
assumptions, the better for the asker/accuser.

And since it's just "merely asking questions" it's not flat out
statements, and thus not libel or slander in a legal sense, but in every other
way it is.

I saved this post because it illustrates the stark issues with what has been
going on in the last 20 years or so. It was originally about the "critical
thinking" plank of the Texas GOP platform, but it is apropos here, because
what Oracle, Fox, and everyone else with propaganda to sell, like Florian, they
depend on peoples' lack of critical thinking skills, and even "truth
verification fatigue."

--
BMO

-------------------cut here ------------------------------

Re:critical thinking (Score:1)
by Greguar (1225686) Alter Relationship on 13:53 Thursday 19 July 2012
(#40701569)

There's a feedback loop of critical thinking failure at the heart of this.

Part of the problem with a lack of developed critical thinking skills is that in
such a cultural environment the mere act of questioning something makes that
something look bad. Defective questions are often taken to be equivalent to good
questions. Questions can be left unanswered but still carry dire implications
that become accepted as truth. A question is then a tool to make a statement
without requiring any evidence to back it, and without exposing liability for
slander or libel.

In such an environment, where the questions themselves have significant negative
impact, the act of questioning something becomes quite harmful. Wholesale
thought control can be achieved through the direction of carefully-crafted
questions designed to instill emotional response. This leads to questioners in
turn being attacked by questions of their political propriety, patriotism or
moral character as a riposte in the duel for control of the message. The end
result is a disastrously adversarial political system paralyzed by continual
assaults of defective questions and information media that value impact and
sensation more than truth or substance, reinforced by a public that lacks any
objective tools to discern questions from truths, much less judge quality of
questions or evidence.

What a lot of people fail to realize is that values and truths can be reinforced
by answering questions. A leader can be proven to have integrity by withstanding
criticism and scrutiny. An idea can be proven to have merit by having its
results measured, and the idea can be refined by diligently seeking its
defects.

When children are taught to unquestioningly believe what they're instructed by
the "appropriate" authority, what happens when a megalomaniacal
politician, con artist, cult leader or abusive partner manages to establish
grounds for seeming appropriate? One insular creed can be supplanted by another,
even one in diametric opposition, given the right emotional impetus or illusion
of authority. A healthy dose of critical thinking may result in more fluid
interpretations of values that are inclined to wander and evolve over time, but
if that foundation incorporates reason then it is less likely for an emotional
event or charismatic individual to induce a sudden and dramatic—potentially
catastrophic—shift.

[ Reply to This | # ]

FM's Story Changed
Authored by: Anonymous on Wednesday, July 25 2012 @ 11:20 PM EDT
PJ quotes FM's June 1, 2012 article:
Why did the $6.1 billion figure become known? Because Google itself wanted it to get out. Google's lawyers could have redacted the figure, or they could have referenced it without stating it in a public filing. But they opted to put this information out. My reporting on those filings was just factual.
So, Google wanted the information out, and FM was just helping them do that? That wasn't the way he spun it originally. In a June 16, 2011 article (http://www.fosspatents.com/2011/06/oracle-is-open-about-wanting-billions.ht ml), he said that Google tried to file them under seal, so it wasn't Google's choice. Because it was Oracle who wanted the information unsealed, FM tried to make Oracle look open and Google look secretive. Some excerpts:
Oracle opposes a Google motion to file its précis regarding damages under seal. Oracle "requests that the Court deny that motion and file Google’s précis in the public record." [Update] Oracle's opposition was successful and the relevant document is now in the public record. It's now known that those damages claims are in the range between 1.4 and 6.1 billion dollars.[/Update]
Oracle's demand for transparency is very important. After all, Google based its request for sealing the relevant document on its obligations to protect Oracle's secrets. But Oracle now advocates transparency. Openness.
Oracle demonstrates a whole lot of confidence by advocating transparency and openly stating that this is about "billions of dollars." Google apparently doesn't want that information to be debated publicly. They probably fear that this could have the Android ecosystem concerned. They may also fear that this could influence the future jury before this case goes to trial (which is tentatively scheduled to begin on October 31, 2011).

But this is a case that inevitably draws a lot of interest. [Update] That's why I'm glad that the judge agreed on this transparency issue with Oracle. [/Update]
Ooh! Google is being secretive because Google is scared! One year later he saying that Google wanted him to do the scaremongering. I would say that neither is true.

[ Reply to This | # ]

Don't wrestle with a pig
Authored by: symbolset on Thursday, July 26 2012 @ 04:10 AM EDT
Because you only get dirty, and the pig enjoys it.

[ Reply to This | # ]

Google's Unmerited Damage From Oracle v. Google -- The FOSSPatents Factor ~pj
Authored by: jrw on Thursday, July 26 2012 @ 10:18 AM EDT
Sadly I confess to having read the article. I noted the folowing:

"Indeed, we are talking about features that make an iPhone an iPhone and
set it apart from a feature phone or from what today's Android phones would be
like if Google had not decided at some point to abandon its original plans for a
more BlackBerry-style device and copy the iPhone operating software."

Forgive my ignorance as I'm not one of those lawyer things that seem to live
around here, but in the absence of a mealy mouthed and slimey
"allegedly" or "arguably" or "in my opinion",
isn't this libel?

Can I recommend the UK as a particularly fine place to find out?

[ Reply to This | # ]

Nice article to link to when FM opens his trap again
Authored by: Anonymous on Thursday, July 26 2012 @ 07:47 PM EDT
Please link to it whenever you see a journalist use any FM sourced data in an
article.

[ Reply to This | # ]

Good article, but feels unnecessary...
Authored by: Anonymous on Thursday, July 26 2012 @ 09:26 PM EDT
I quote Tycho from Penny Arcade re: a similar target:

"It's like trying to make fun of a clown. What, are you going to make fun
of
his tiny car? His floppy shoes?"

Does anyone take Florien seriously anymore?

[ Reply to This | # ]

A little bit of bread-crumb following...
Authored by: calris74 on Thursday, July 26 2012 @ 10:47 PM EDT
TUESDAY, JUNE 7, 2011
http://www.fosspatents.com/2011/06/oracle-wants-huge-cut-of- googl es-mobile.html
But the fact that Oracle brings up this kind of amount in its litigation with Google indicates to me that Oracle is, as I recently already figured, looking for a settlement with Google that would be similarly big as its recent damage award in the SAP case. We're talking about, potentially, billions.
Oracle has brought up a figure which Florian is extrapolating out to billions...


WEDNESDAY, JUNE 15, 2011
http://www.fosspatents.com/2011/06/no-more-doubt-oracle- wants-bil lion.html
Having analyzed Google's latest filings in the case, I have no more doubt that Oracle's damages expert calculated damages that would, at least if tripled due to willful infringement, amount to a billion-dollar figure. And that's just damages: if Oracle wins, Google will also face an injunction and need to negotiate a license deal (in the alternative, all existing Dalvik-based apps would have to be ported to a new app platform).
The court and the parties know the amount that Oracle's expert calculated. I don't. But I can deduce that the expression "several times that amount" is far more likely to mean "several times $900 million" than "several times $20 million".
So there are some great unknowns here. Yesterday's filings added enough pieces to the puzzle to know for sure that this is -- in a worst-case scenario for Google -- about billions, not millions. But I don't know yet whether it's billions even without a tripling based on willful infringement or only after that. Prior to tripling, the amount could be "only" in the hundreds of millions. At the same time, just "fragmentation of Java" could amount to billions even prior to a possible tripling...
Hmmm, so after reading Google's filing, Florian is not so sure about the $6.1B figure. So if Google had deliberately let the cat out of the bag, this is the day he should have seen the cat


THURSDAY, JUNE 16, 2011
http://www.fosspatents.com/2011/06/oracle-is-open-about- wanting-b illions.html
Yesterday I concluded from a Google filing that Oracle seeks a billion-dollar amount in damages. Today Oracle filed a document that confirms this position in no uncertain terms.
So Florian has guessed billions and Oracle not Google have confirmed it in a public filing. So, prey tell, who is letting which cat out of which bag?
According to Oracle, Google wanted to hide from public view:...and -- lo and behold -- "[a]ny and all references to the fact that Oracle’s damages claims in this case are in the billions of dollars."
"and -- lo and behold --" hmm, methinks Florian is giving himself a little pat on the back. An any case, Oracle are the very first to publicly state a billion dollar figure in a non-redacted filing.
I was right when I wrote yesterday that this was going to be about a billion-dollar amount. But I want filings that really tell the story, and I don't want to be misled.
And another little pat, just for good measure


SATURDAY, JUNE 18, 2011
http://www.fosspatents.com/2011/06/oracle-expert-says- google-owes -between.html

Finally the cat is out of the bag and the numbers are on the table: the Oracle expert report on damages Google vehemently opposes arrived -- according to a Google filing that has now become available in an unredacted form -- at the conclusion that "Google, if found to infringe, would owe Oracle between 1.4 and 6.1 billion dollars."
And now the truth emerges - Google put the cat in the bag, but it was Oracle who let is out

So it looks to me that 'purely factual' reporting was, in fact, 'pure speculation' that became factual.

In recent weeks I have been repeatedly accused of having "speculated", "claimed" or "predicted" that Oracle was going to receive billions of dollars
Yes, Florian, you did 'speculate' - Unless, of course, you had access to information which made the above statements non-speculative.

[ Reply to This | # ]

Google's Unmerited Damage From Oracle v. Google -- The FOSSPatents Factor ~pj
Authored by: Anonymous on Sunday, July 29 2012 @ 04:28 AM EDT
What would be interesting is to compare and contrast what FM has written that is
critical of or complimentary to each party - e.g. to what extent has he
criticised Oracle's case and assessed their risks of failure, and highlighted
the strengths in Google's case...

If he had been just as hard on Oracle as he has been on Google that would be OK,
On the other hand if he is only being hard on one party that's a clear sign of
bias.

As a long-time reader of groklaw, I sometimes think GL could do a bit better in
this regard, too. The difference is of course that so far GL has been much more
right than wrong...

[ Reply to This | # ]

Google's Unmerited Damage From Oracle v. Google -- The FOSSPatents Factor ~pj
Authored by: Anonymous on Wednesday, August 01 2012 @ 12:45 PM EDT

I hadn't thought about Maureen O'Gara, and her style, for a considerable (and happy!) interval. I think it's pertinent to note, in regard to the phrase in her very first excerpted sentence, "... wounded water buffalo beset by a pack of rabid hyenas ...", that water buffalo naturally live at least 4000 miles away from any extant hyenas, and that, interestingly enough, at least some hyena species are symptomatically immune to rabies. This seems to be typical of her relation to factual reality--PJ's subject, of course.

[ Reply to This | # ]

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