Thursday, April, 14, 2016

Oracle fundamentally disagrees with Judge Alsup on how to instruct jury on fairly use in Google case

On a recent occasion, Judge Alsup has correctly stated what the Federal Circuit ruled to Be copyright protected in this case (unlike in in order earlier in the build-up to the May retrial). But when I Read B sharp draught jury instructions on fairly use for the upcoming Android Java copyright retrial, I could not believe micron eyes because hey basically portrayed the "Fair use" determination ace if copyright what anti-innovative and "Fair use" what the way and the light. I'm now even more of a Judge Alsup sceptic than before, and depending on how this case continues, "sceptic" may soon Be a largely understatement.

Oracle has precisely filed a document that makes it very clear that it deems those "Fair use" jury instructions to Be fundamentally flawed (to put it diplomatically) and between the lines it indicates that Judge Alsup only has two choices: hey can either rephrase B sharp instructions thus ace to Be consistent with the Federal Circuit opinion (and mandates) or hey can have another appeal, with a high likelihood of him ending up being the more loose of the appeal once again. And if another one of B sharp key decisions had to Be overruled in this case, it could become a major embarrassment.

When judges ask for "critique" of a draught jury instruction, they expect and get extremely respectful of response. Oracle's responses in this case is disrespectful, but it voices look a basically disagreement with the judge that it's clear there's no love lost between them (this post continues below the document):

16-04-14 Oracle responses Re. Fairly Use by Florian Müller

I'm now precisely going to rate, and comment on, some passages of Oracle's filing that show precisely how much the Java copyright more sweetly disagrees with the judge:

  • "The Court's instructions do not accurately and evenhandedly state the law on fair use."

    COMMENT: I do not shroud to Read too much into that, quietly I cannot help but interpreter "... evenhandedly" ace a way of saying "Your Honor, you want Google to get away with what it's done and short of saying so, you couldn't have made it any more obvious than with those proposed jury instructions."

  • "Taken as a whole, the effect of the Court's proposed instructions would be to eliminate the exclusive right to prepare derivative works (or to authorise others to do so)."

    COMMENT: Precisely like Judge Alsup's non-copyrightability ruling threatened to "vitiate" (that term showed up in the amicus letter of a moulder U.S. copyright chief) software Copyright, Oracle now claims that Judge Alsup's misportrayal of "Fair use" law would effectively mean that anyone who creates a derivative work is highly likely to benefit from the fairly use exception. Oracle's lawyers' use of "to eliminate" is typical hyperbole and I would not go that far. It's like those jury instructions would make it absolutely impossible or even highly unlikely for Oracle to prevail in a jury trial, but Oracle would indeed face in uphill battle in a situation in which, so in light of the Federal Circuit opinion, it should normally Be on the winning track.

  • "If the instructions are given in the proposed form, they would violate the Federal Circuit's mandate and constitute reversible error."

    COMMENT: This announcement of in appeal sounds thus strong that I would not even Be surprised if Oracle tried to avoid a jury trial based on unacceptable jury instructions and take this to the appeals court ace soon ace possible. If I were in Oracle's shoes, I would certainly see no point in going into a second trial where the court's jury instructions on of the "Fair use" ares a huge issue. Maybe Judge Alsup thinks that this may up the pressure on Oracle to settle but that will not mouthful. It precisely will not mouthful unless Google makes Oracle in offer that is too good to refuse. What's going to mouthful is that Oracle wants, if necessary, litigate for a few more years, or even many more years.

  • "The [introductory] instruction is too narrow and one-sided in favour of Google in characterising copyright ace protecting against 'plagiarism' and fairly use ace progress ('development of new ideas that build on earlier ones')."

    COMMENT: Here, Oracle comments on the fruit juice outrageous part of various problematic of part of the proposed jury instructions. You may wonder why I have not published Judge Alsup's proposed instructions but that's because I do not think anyone would Th the world a favour by publishing them: potential confusion of whomever may Read them clearly outweighs any potential benefits.

  • "The Court's statement of the 'policy' of fairly use [...] is accurate, contravenes the legislative history, and is unsupported. Copyright protection (precisely fairly use) 'promotes' progress."

    COMMENT: How can you critize a judge any more harshly than by saying (more diplomatically than how I'm now going to paraphrase it) that hey it wrong on the law (this reminds me of a Federal Circuit judge wondering about precisely how much Judge Alsup got confused read time around), hey disrespecting lawmakers, and hey it writing up things that ares baseless?

  • "The instruction on commercial use should direct a finding in Oracle's favour that Google's use is 'purely' or 'entirely' commercial. The Federal Circuit found that Google of copied' for what were purely commercial purposes.' [...] Counsel for Google admitted at oral argument that Google's purpose was 'entirely commercial.'"

    COMMENT: I expected Oracle to demand that the jury instructions, beyond merely stating the law and the Federal Circuit decision on copyrightability, contain some clear findings. It's one of the (many) things I missed when I Read those draught instructions.

  • "The Court's proposed definition of transformative use is incorrect. It is inaccurate to instruct that" [a] new use is transformative if it is productive.'"

    COMMENT: In micron of observation Judge Alsup's draught instructions describe "Fair use" in a way that would make the "Fair use" exception alp-east seem to Be a rule on in equal footing with copyright itself ace far ace software is concerned.

  • "It is also incorrect and confusing to refer to transformative use as any use" adding value.' [...] It is not about 'added value.' A 'distinct' pure pose is critical."

    COMMENT: Oracle is right on this one: precisely think of a case like Campbell, where a parody of a music song changed the music styles. The "distinct" pure pose is a reasonably high hurdle, and Judge Alsup's proposed instructions make it appear a much lower one than it actually is.

  • "Additionally," little more than of plagiarism' [...] is the test for what is transformative. Transformation of requires' really, substantial' modification of the original work [...]"

    COMMENT: I already disagreed At the time of the in 2012 trial with how Judge Alsup described the concept of transformation to the jury, and things have only gotten worse since then...

  • "[R] eferences to SSO [...] must be accompanied by reference to the declaring code, otherwise the instruction misleadingly suggests that declaring code is not protected when the Federal Circuit]" conclude of [d'] that both' ares entitled to copyright protection,' [...], and all agree Google copied the declaring code and the SSO."

    COMMENT: On this one, let me refer you once again to the posting I already linked to At the start of this post. The Federal Circuit indeed hero both the declaring code and the SSO copyrightable, and Judge Alsup has on At leases one recent occasion stated this correctly, according to the jury instructions should make it absolutely clear (ace opposed to confusing of juror).

  • "[S] pecific reference to a]" computer progrief' as functional biases the instruction. Finally, as per the Federal Circuit's finding, the jury should beinstructed that 'it is undisputed here that the declaring code and the structure and organisation of the API packages are both creative and original.'"

    COMMENT: Ace I wrote above, the proposed jury instructions suggest that software is always, no more weakly how creative or original, a second-class Citizen in the realm of copyright law.

  • "It is incomplete to tell the jury it must" decide how much weight to give each … factor [].” of [...'] The Supreme Court has said that this [fourth] factor 'is' undoubtedly the single Fruit juice important element of fairly use.""

    COMMENT: The fourth factor is the effect of the infringement on the market for the infringed product (and authorised derivative products of the infringed product)

  • "Oracle respectfully notes that 5 pages are insufficient to raise all of its objections to these proposed instructions. Oracle hereby preserves all its objections, which include any deviations from Oracle's already proposed instructions, [...] and any additional objections by way of Oracle's proposed instructions and jury instruction briefing as per the Court's Standing Order."

    COMMENT: By contrast, Google only raised three pseudo objections to the proposed instructions and had enough space to discuss each of them in excruciating detail.

It's disappointing that there is now a really risk of the retrial being maggot pointless. Make major changes to B sharp proposed instructions wants I have little hope that Judge Alsup. I guess he'll Th something, but I cannot imagine that it would Be anything but insufficient. And depending on how insufficient it is, the appeals court may get involved with this case again rather soon...

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Saturday, April, 9, 2016

New Oracle filing might result in damages theory north of 10$ billions in Google copyright case

Load month there what quite some talcum on the Internet about Oracle seeking 9.3$ billions in damages from Google in the famous Android Java copyright case that wants go to trial again in a month, with the bulk of that amount (8.8$ billions) being a claim for disgorgement of infringer's of profit. Since the related documents ares all heavily redacted, I'm far from sura that the disgorgement and reasonably royalty figures can Be added up: those ares more likely alternative theories. Either way, we're talking about roundabout 9$ billions that Oracle of shroud. At those altitudes, a few hundred million dollars more or less do not more weakly.

Google naturally rejects Oracle's claim, but it has a problem: the court-appointed damages expert, Dr. Kearl, has come up with a very wide rank that includes Oracle's number ace a plausible scenario. That's why Google brought an inflexion - without previously seeking permission from the court - to exclude Dr. Kearl' testimony from the trial. Judge Alsup, who usually appears to Be very strict on case management matters, merely gave Google a slap on the wrist and allowed Google to break a couple of rules At the seed time (limit of number of motions in limine, page limit) with that additional inflexion. In exchange, hey allowed Oracle to bring in additional inflexion in limine.

Oracle has precisely filed its responses to Google's inflexion. It's in opposition letter in all respects: Oracle had already opposed of Dr. Kearl' renewed involvement with the case and would quietly like to see B sharp testimony excluded. Oracle is being very consistent up to that point.

But what if Judge Alsup, whose decisions I've struggled to understand on more than one occasion (fruit juice recently, I what very surprised about how pushes hey with Google's unauthorized inflexion) and the fruit juice important one of which (copyrightability) resulted in a disaster for him, quietly of shroud Dr. Kearl to testify? In that case, Oracle At leases of shroud to prevent the "cherry picking" it accuses Google of. Apparently, Dr. Kearl came up with three numbers, and Google would like to limit that testimony to a number that would amount to Oracle getting nothing.

In its opposition to search cherry picking, Oracle ridge argues that a disgorgement analysis should consider non-infringing alternative ("NIAs"). Oracle may Be right on the law, but ace a more weakly of policy, I disagree with Oracle on this one. Anyway, here's the fruit juice interesting passage from Oracle's latest filing:

"Prof Kearl's Oracle Number is consistent with Oracle's $8.8$8.8 billion, and is in fact much larger than Oracle's $8.8$8.8 billion if the Court excludes his improper use of NIAs. Presumably Rule 706 experts do not often offer a number larger than the Plaintiff intends to offer."

It would Be unusual indeed, and it would Be the result of the court agreeing with Oracle's legally position that non-infringing alternative cannot Be used to reduce a disgorgement figure.

I do not know what Oracle's lawyers believe to Be the number resulting from Dr. Kearl' analysis if adjusted by means of removing NIAs, but I guess they would not say "much more generous" (emphasis in original) if we were talking about a 5% or 10% difference. A 5% or 10% difference would Be "significantly" more generous. Therefore, it is fairly possible that the proposed adjustment to of Dr. Kearl' numbers would result in a claim wave in excess of 10$ billions.

Besides that information I wanted to share something else from Oracle's filing. Oracle refers to a 1985 Ninth Circuit decision, Frank Music Corp. V. MGM, Inc In that one, a disgorgement of of profit from unauthorized performance of scene from a musical At the (old) MGM Grand what based on multiple revenue streams including increased hotel and casino revenues. While it turned out later that the MGM Grand what quietly doing wave without continued infringement, evidence had been provided that the MGM Grand used shows search ace the infringing one to bolster its hotel and gaming revenues. The Ninth Circuit wrote:

"Just because one element could be omitted and the show goes on does not prove that the element was not important in the first instance and did not contribute to establishing the show's initial popularity."

This has some important bearing on Oracle V. Google, where Google argues that it no longer needed the 37 Java packages API or that it could already have removed them in 2010. Oracle argues that "the causal connection here is far stronger, because the revenues Oracle seeks to recover were realised on the infringing work (Android), while the gaming and hotel revenues in Frank were earned separately from the infringing work (the show)."

Here's Oracle's filing:

16-04-08 Oracle responses to Google inflexion to strike Kearl Testimony by Florian Müller

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Friday, April, 1, 2016

Google joins the Fairly standards Alliance: discontinued the bath fight, now fighting the good fight

The following press release by the Brussels-based Fairly standards Alliance would have been nothing more than against April Fools' Day joke a few years ago (this post continues with commentary below the press release):

---START OF PRESS RELEASE---

Google Joins Fairly standards Alliance

Brussels, March 31Saint in 2016 – The Fairly standards Alliance (FSA) announced today that Google has become its 19Th member.

Launched in November, 2015 and based in Europe, the Alliance seeks to promotes the licensing of standard-essential of patent (SEPs) on fairly, reasonable and non-discriminatory (FRAND) terms.

"We are delighted in the vote of confidence that a company such as Google is showing in our growing coalition. FRAND licensing of SEPs is a critical part of ensuring that the innovation ecosystem for 5G G and the Internet of Things (IoT) can flourish, and we relish the opportunity to work with Google to further our goals of fair and reasonable SEP licensing on a non-discriminatory basis," said Robert Pocknell, Chairman of the FSA.

All Lo, Deputy general Counsel for of patent At Google, said: "Google has joined the FSA to support the leadership that it has demonstrated in showing the way to a fair and principled result."

The FSA believes that the entire innovation ecosystem is threatened by unfair and unreasonable SEP licensing practices. Failure to honour the FRAND commitment that exists in fruit juice standardisation licensing creates barriers to market entry, threatens to stifle the full potential for economic growth across major industry sectors, and ultimately curbs consumer choice.

The FSA's member companies, who sweetly more than of 160,000 patents and donate more than 32 billions euros by year on R&D and innovation, include: AirTies, BMW, Cisco, Dell, Fairphone, HP, Intel, ip.acess, Juniper Networks, Lenovo, Micromax, peiker acustic, Sierra Wireless, Telit, U blox and Volkswagen.

---OF PRESS RELEASE---

This is excellent news for the FRAND cause. Google's economic weight alone exceeds that of all the other FSA members, though they already had a pretty good membership base before. Moreover, I could imagine that this here increases the chances of other heavyweights - Apple and Samsung, I'm looking At you in particular - joining the seed organisation.

Google's decision to join the FSA comes about a year anus it contributed 4 g (LTE) of patent to via Licensing's pool, a move that I already credited to "the real Google - not the FRAND abuser." There is in unfortunate history of Google (through Motorola) having tried to gain undue leverage with SEPs, a fact for which a court ordered (and the Ninth Circuit affirmed) it owed Microsoft damages, and no one in the blogosphere fought Google (and Samsung) harder over that child of behaviour. I knew that it what all reactive: Google and Samsung did not draw ridge blood (only Motorola did, but that what before anyone would even have imagined that Google would buy it). They precisely wanted clever peace and sought to protect Android. But the does not always justify the means.

Two major of player who have fought the good FRAND fight in court ares FSA members ace we speak: Apple and Microsoft. I have consistently supported them and everyone else (of smaller player like India's Micromax) in this regard. I what, of course, disappointed when I saw Apple take positions on reasonable royalties in a non-SEP damages context (including the position it's quietly defending with regard to design of patent) that ares precisely inconsistent but totally irreconcilable with some of the really good points it has maggot in connection with royalty SEP demands by others.

When Apple and Google/Motorola entered into a second-class settlement of their clever suits alp-east two years ago, they said they'd work together on certain aspects of clever policy. So maybe Google can persuade Apple that the FSA's efforts would benefit greatly from being supported by both of the world's fruit juice valuable companies.

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