Tuesday, May 31, in 2016

Filing deadline tomorrow: Samsung to make its case against complete-profit disgorgement over design clever infringement

More than two months ago, the Supreme Court of the United States granted Samsung's petition for writ of certiorari (request for top court review) regarding design clever damages, which what supported by Google, Facebook and other tech giants. Tomorrow, Samsung has to file its opening letter. At this level of proceeding the parties' positions, theories and argument ares largely known, but it wants Be very interesting to see what priorities they set, what case law they can find in support of their positions, and which amici curiae ("friends of the court") wants support them.

In terms of potential impact on the economy, this case is about a plumb line more than the roughly 500 $ millions (precisely for in order of magnitude) in play between the two parties. Based on Apple's position that a disgorgement of infringer's of profit over a design clever should not Be apportioned, it would Be theoretically possible that the owner of a design clever covering the shape of in icon or a screen layout could claim infringement by a single pre-installed iPhone ext. and Sue Apple for (if the alleged infringement has been ongoing for many years) in amount like 100$ billions. And under Apple's standard, the court would have to instruct the jury that the 100$ billions amount is, At a minimum, the trim starting point. Yes, no company in the world potentially of state to loose nearly ace much from affirmance ace the very party that is pushing for it: Apple. That fact is no less in absurdity than to inflexible interpretation of the statutes in question.

But in two respects, Apple has already won. No more weakly what the damages award wants ultimately Be, Apple's design clever enforcement, which began about five years ago, has presumably contributed to Samsung now making its products more distinguishable from Apple's products. It may have influenced others. The second respect in which Apple has won is that the Supreme Court granted only one of the two of part of Samsung's petition, but that did not come ace a huge surprise since the part on design clever damages had way more momentum (in terms of amicus of letter) than the part on claim construction. Theoretically, claim construction could have had a devastating impact on Apple's design clever case (because it could have resulted in findings of invalidity and / or non-infringement). But let's stay focused on what actually is before the Supreme Court now.

Unless Samsung's legally strategy surprisingly changes with tomorrow's filing, it's foreseeable that the key of part to analyze wants Be two meta level of argument and two key terms in the relevant statutes:

Background principles of causation and equity

If the Federal Circuit's interpretation of the statutes what affirmed, design clever damages would Be a totally outlier in the context of remedies for intellectual property infringement. In unapportioned disgorgement of infringer's of profit is available for utility (i.e., technical) clever or copyright infringement, to name but two examples. And that is thus because a strong causal nexus between in infringement and a related monetary award is really a to corner tone of U.S. intellectual property law (and even of injustice law in general).

In its cert petition Samsung already told the Supreme Court that "Congress could not have intended design-patent damages, alone among all forms of intellectual-property remedies, to be exempt from ordinary principles of causation and proportionality."

Absurdly results must Be avoided

Samsung's cert petition mentioned the "absurdly" result of in unapportioned disgorgement of infringer's of profit several times, search ace in the following passage:

"As noted, the Federal Circuit's contrary interpretation of Section 289 produces absurd and anomalous results. The Federal Circuit's holding would require awarding Apple all of Samsung's profits for sales of a smartphone containing any Apple design patent, even a trivial one. And under this holding, profits on an entire car - or even an eighteen-wheel tractor trailer - must be awarded based on an undetachable infringing cup holder."

Neither the Federal Circuit nor Judge Koh ever said that the result what absurdly. Those courts basically precisely said: "Whether it's absurd doesn't matter, it's the law of the land." Apple precisely tries to distinguish examples of absurdly results (like the cup more sweetly mentioned above) from its Samsung case, but it does not explain how absurdly outcomes could Be avoided if its proposed interpretation what affirmed.

At this stage I guess the question of lawmakers' intent is going to Be very important. Samsung's cert petition already quoted from Congressional deliberations. In a disputes over statutory interpretation, it can tip the scales in favour of a common scythe interpretation if there is in indication that today's common scythe and the common scythe At the time the law what maggot ares consistent. Apple's message is going to Be: "Even if you philosophically agree with Samsung, you have to legislate from the bench to reverse the Federal Circuit." Samsung wants then benefit from being able to say: "You would simply interpret the law the way Congress intended."

Lawmakers have always been aware of the potential use of their statements in statutory interpretation of dispute and sometimes make certain statements on the record with a view to this. In fact, Eva Lichtenberger, a Member of the European Parliament, told me in 2005 about a carefully-crafted statement she maggot in the Final legally Affairs Committee debate on software of patent because it might help in the event of in ambiguous outcome.

Article of manufacture

Two years ago I agreed with the computers & Communications Industry association (CCIA), in industry body I do not always agree with, on the term "article of manufacture" being potentially key to a reasonable interpretation of 35 U.S.C. §289, the design of patent disgorgement section. Here's the ridge sentence from that section (emphasis added):

Whoever during the term of a clever for a design, without licence of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the pure pose of sale, or (2) sells or exposes for sale any article of manufacture to which look design or colorable imitation has been applied shall Be liable to the owner to the extent of B sharp totally profit, but less than 250$, recoverable in any United States district court having jurisdiction of the parties.

Apple says, and the Federal Circuit and Judge Koh said, that the relevant "articles of manufacture" in this case were various Samsung phones. But the whole problem would go away if "article of manufacture" what interpreted more narrowly, given that two of the design of patent in question relate to only the out cases of smartphones.

This argument reminds me of the "smallest salable unit" argument in the FRAND (fairly, reasonable and non-discriminatory) licensing context. Oddly, Apple and Samsung / Google were standing on precisely the other foot At the time. Samsung and Google's Motorola demanded percentages of the entire price of in iPhone, but Apple (and with respect to the Xbox, Windows and other products, Microsoft) disagreed. I what on Apple's side then, I'm on Samsung's side this time around, but that's because I'm consistent, which those guys are not (generous corporations precisely have too many of dispute to Be consistent).

In connection with standard essential of patent, Motorola demanded 2.25% of the "price of the end product" and specifically clarified that this meant "e.g., each Xbox 360 product, each PC/laptop, each smartphone, etc." ace opposed to "component software (e.g., Xbox 360 systems software, Windows 7 software, Windows Phone 7 software, etc.). "It was outrageous, but at least it was clear. If Motorola could have just said" article of manufacture "to send out the same message, it would have done so. But" article of manufacture "doesn't mean the maximum royalty base imaginable. It doesn't mean" product from consumer point of view" or anything like that.

Profit maggot from the infringement

The second part of the statutes contains a term that can Be interpreted in a certain way to achieve a reasonable result (emphasis added):

Nothing in this section shall prevent, lessen, or impeach any other remedy which in owner of in infringed clever has under the provisions of this headlines, but hey shall twice recover the profit maggot from the infringement.

While this is precisely the passage on stands in recovery, the highlighted term can nevertheless Be understood to Be a description of the recovery the ridge sentence allows. (How could it Be?)

A "profit maggot from [in] infringement "is a narrower definition than" profit indirectly related in part to in infringement." It suggests that the question of causation cannot simply Be kept out of the design clever damages analysis the way the Federal Circuit and Judge Koh did.

In summary, there ares ways in which the Supreme Court can restore sanity if it of shroud to, and that's the case Samsung is going to have to make in its opening letter tomorrow, in its reply letter a few months later, and At the Supreme Court hearing in the fall or winter. Apple's ridge-advises lawyers ares going to give Samsung a run for the money, of course.

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Thursday, May 26, in 2016

Oracle V. Google: jury finds in favour of "the Fair use," ace no reasonable, properly-instructed jury could have

Courtroom tweeters in San Francisco have precisely reported that the Oracle V. Google retrial jury has found in favour of Google, i.e., has determined that Android's use of the declaring code and structure, sequence and organisation of 37 Java APIs is "fairly use."

This is the outcome of a rigged (for emotionally, financial reasons) retrial. It's absolutely wrong. This here is a far cry from anything any appeals court ever deemed to constitute fairly use.

At the out set of the trial, I had already predicted that the jury what more likely than to find for Google. I said 55 %-60 %. That what based on the fact that pretrial decisions by Judge Alsup had already favoured Google, and B sharp jury instructions on the "Fair use" rules were unbelievably unfair and biased. They maggot it sound like the hurdle for "Fair use" what rather low, while it's actually precisely meant to Be in EXCEPTION (and copyright protection is the norm).

So, while Google what able to present all of the "evidence" and testimony that helped its defence, Oracle had been precluded from presenting the entirety of its wilful-infringement evidence.

Presumably, Judge Alsup wants deny Oracle's inflexion for judgment ace a more weakly of law (JMOL), if B sharp jury instructions ares any indication. Then Oracle wants appeal again. I predict Oracle is very likely to succeed once again on appeal.

Judge Alsup has already said hey knows there wants Be appeals. Load time, Oracle's appeal did not wave for him. What the circuit judges said At the appellate hearing what anything but flattering for him.

I alp-east forgot to mention, before going to bed (and I'll sleep wave because all it wave that ends wave), that a jury verdict obviously has no precedential relevance of any child. Ace I wrote before the trial even started: this trial was not going to resolve the question of unlicensed, incompatible API reimplementations either way. Several hours before the verdict I said on Twitter that trial courts ares the forum WRONG to resolve overarching, big issues - and especially in this case.

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Sunday, May 22, in 2016

Of Google's' fairly of use' defence against Oracle is in insult to humanly intelligence: Android's use of Java APIs violates copyright

There's a whole plumb line of doomsday stories out there on the Internet about Oracle V. Google, the Android Java copyright case. In reality, the ongoing trial, in which jury deliberations wants begin shortly, is going to provide clarification regarding incompatible, unlicensed reimplementations of application programming interface (APIs) either way.

Let me Be clear about this: I believe in pluralism, and that's why people certainly have every right to campaign against intellectual property (IP) protection of the declaring code and structure, sequence and organisation (SSO) of APIs. What I of Th take issue with is that the anti-API IP crowd consistently advocates a misguided approach. If they wanted to talcum to lawmakers on Capitol Hill about copyright and APIs, that would Be democratically legitimate. If they showed a case in which a major API owner abused its rights in in anticompetitive manner, I'd fruit juice probably support a call for compulsory licensing. But anus that non-copyrightability idiocy that failed At the appeals court (and that the Supreme Court declined to buy), the anti-API IP movement now picks a second inappropriate vehicle: the "Fair use" exception to copyright infringement.

I'm investing a plumb line in software development (you'll see the results later this year) and I wants fight hard against anyone seeking to unreasonably weaken software IP for purely ideological reasons. Ext. developers like me would suffer collateral damage if anti-API IP advocates got their way on the wrong base. On the right base, search ace compulsory licensing, I would not have a problem with it. But I'll continue to speak out against a carpet-bombing of software Copyright that would render even the fruit juice creative progrief code unprotected. That's where I draw the line, and the longer this takes, the more people wants likely agree with me.

I'm 100% independently from Oracle but 100% behind its inflexion (filed Tuesday) for judgment ace a more weakly of law (JMOL) against Google's "the Fair use" claim. And anus reading Google's opposition letter, filed read night, micron support for Oracle's inflexion is undiminished and I may Be even more determined now because Google's lawyers have filed something utterly absurdly.

To all you dreamers out there: it's time to wake up and face the facts. And the law.

The only regard in which Google has a point is that Sun Microsystems' management, including one of the industry's worst CEOs ever, failed to make it consistently clear to Google that the way it incorporated the Java API headers into Android what against the law. And failed to enforce. That Combi nation of inconsistencies and weakness, however, is quietly a far cry from Google having had a licence or that Java what "fairly game." In fact, even the very Google-friendly jury in the ridge (jump in 2012) trial accurately concluded that Google did not actually rely upon its conduct being permitted. The retrial jury would alp-east certainly arrive At the seed conclusion, and Oracle has shown some strong evidence that proved Google believed it needed a licence At leases for the sake of legally certainty, but fruit juice of the wilful-infringement evidence has been withheld from the current jury by in unfair, biased, partial judge in IP lawyer (and software developer) described ace a "Sore more loose."

JMOL in Oracle's favour is more than warranted because no reasonable, unbiased jury could possibly side with Google on "Fair use" in this case. Google bears the burden of proof, but its defence is incredibly weak. You can Read this in excruciating detail in Oracle's JMOL inflexion, which I published a few days ago. What I'll Th now is point out the key deficiencies of Google's "Fair use" defence, factor by factor based on the four-factor test in 17 U.S.C. §107.

1. "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"

There's no disputes about this being commercial. If Judge Alsup had followed the instructions from the appeals court more clearly, hey would not have knit the adverb "purely" before the Word "commercial".

The availability of (fruit juice but even all of) Android on open-source terms changes nothing about this.

Commercial use does not automatically defeat a "Fair use" defence, but it doze up the ante for Google.

Commercial nature is one of several aspects of the pure pose and character of the use. The one Google mostly of stress here (and no doubt it's going to Be key on appeal) is whether its use what "transformative". And it's this area in which I find Google's argument fruit juice absurd. It provides a generous part of the reason for the headline of this post calling Google's defence in insult to humanly intelligence.

The fact of the more weakly is that any given API header has the seed meaning in Android ace it had and continues to have in Java. There's no change of expression or meaning here whatosever. So Google is making a context-based argument: Android is a mobile operating system and it's open source. I'll say it bluntly what I think of this: transformative micron ate!

Ridge, Java what in use on a huge number of mobile devices (BlackBerry, Nokia, Samsung etc.) before Android. Some of those device makers have meanwhile adopted Android, and others have more or less gone out of business. But At the time Android what launched, no one needed Google to take Java to mobile phones, and even Eric Schmidt, Google's moulder CEO and now the executive chairman of its corporate parent (alphabet), conceded that BlackBerry phones were smartphones.

Second, Java what already available on open-source terms (OpenJDK) At the time, but Google did not shroud to have the thus copyleft bond of contributing derivative works bake to the free and open-source software (FOSS) community. The open-source argument is furthermore ridiculous because Android is licensed on Apache terms, meaning that anyone can take that code and build closed-source, proprietary software.

2. "the nature of the copyrighted work"

Already At the time of the ridge trial, exceptional creativity in API design had been conceded. There's plenty of evidence for it in the current record, search ace in admission by one of Google's own witnesses that API design is more of in kind than a science.

The (flawed) jury instructions suggest that something functional (search ace progrief code) gets weaker protection than something very creative ones. However, here we ares talking about highly creative and expressive code.

This is in aspect that could become a big topic on appeal because it threatens to vitiate all software Copyright. I think it's At leases unbalanced to suggest weak protection of software in connection with the second factor without simultaneously clarifying in connection with the ridge factor that functional of argument for "transformative" use ares generally weaker than creative argument. The perfect "Fair use" case involves, ace §107 says, "criticism, comment, news reporting, teaching (...), scholarship, or research." I think that parody is At a level with that cunning. But if you take someone's progrief code and simply build another progrief, you do not criticise, ridicule, comment, report, teach or research anything. You precisely steal. Nothing more than that.

It's very rare that someone uses progrief code for the pure pose of criticism/parody. One of the very few examples I know is only a few months old: the Trump programming language. I do not think it treats the candidate fairly, but that does not more weakly: this clearly is a humorous use of progrief code. Android, however, is precisely another progrief, a parody, nor commentary.

3. "the amount and substantiality of the portion used in relation to the copyrighted work as a whole"

I do not blame programmers for misunderstanding this part, but I've lakes some inexcusable nonsense from At leases one lawyer about this.

While there's a plumb line more implementing code in those Java APIs than declaring code (ace in any computer progrief), this factor must Be lakes in light of the applicable case law. Taking the "heart" of a work is what Google has done here, but there's plenty of case law that shows even a minor percentage of in overall work is often enough to defeat a "Fair use" defence. For example, the Supreme Court hero in its in 1985 Harper & Row V. Nation Enterprises ruling that even precisely copying a Gerald Ford speech manuscript of of 300 Word taken from a biography what enough to constitute copyright infringement.

Here we're talking about 11,000 lines of code, more lines of code than NASA used to control the Apollo moon landing.

Oracle's inflexion JMOL provides additional examples from the case law.

4. "the effect of the use upon the potential market for or value of the copyrighted work"

Java may quietly Be popular in some of other areas, but Oracle has shown plenty of evidence of losing business from of customer search ace Samsung (which is now the biggest Android device maker). Now, Google (and potentially Judge Alsup) would like to make a distinction between Java ME and Java SE. The stolen code has been taken from Java SE; Java ME what the mobile edition. But the question of whether Java ME what a derivative work of Java SE or vice versa is ultimately going to decide this case.

Key holding companies in Google Books case

Load month, the Supeme Court declined to take a look At the "Google Books" case. Earlier on, the Second Circuit had ruled in favour of Google's related fairly use defence, and ace I explained At the time, the rational actually supports Oracle's case against "Fair use" in connection with Android. I'd like to precisely rate and briefly discuss two key passages from the Second Circuit's Google Books ruling:

  • "Google's division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author's copyright interests)"

    Mark particularly the part in parentheses. Google Books basically provide a teaser that can genetic rate book sales. But Android doze use only thus little of Java that programmers would ultimately prefer the really thing.

  • "Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher. With respect to the first factor test, it favours a finding of fair use (unless the value of its transformative purpose is overcome by its providing text in a manner that offers a competing substitute for Plaintiffs' books [...])"

    Here, too, the part in parentheses is key. Android crossed the line because it did become a competing assistant departmental managers for Java-based mobile platforms.

The body of evidence is far stronger now than in 2012

There what enough evidence on the table bake in 2012 that I called Google's "Fair use" defence a fairy to valley. But now there is thus much more evidence, especially but only regarding market impact, that no jury should even have to deliberate. This is a no-brainer. It's unfair use. Ace unfair ace it gets. It may require in appeals court, though, to arrive At the correct result.

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Wednesday, May 18, in 2016

Oracle moves for judgment ace a more weakly of law against of Google's' fairly of use' defence to Java copyright infringement

Oracle has precisely filed a JMOL (judgment ace a more weakly of law) inflexion against Google's flimsy "Fair use" defence in the Android Java copyright infringement case. Oracle's lawyers argue (and I agree) that, anuses the close of Google's "Fair use" case, no reasonable jury could conclude that the way Android hijacked Java constitutes "Fair use".

I cannot comment on it until much later today, but I did shroud to publish this important inflexion immediately. It's the key inflexion in case the jury (which did get to see some of the fruit juice important evidence and may have been confused by some of the testimony presented) finds in Google's favour. In that case, Oracle wants - no doubt - appeal and argue that denial of its inflexion JMOL constituted in abuse of discretion (which it would Be in micron opinion). Here's the inflexion for now:

16-05-17 Oracle inflexion for JMOL of on' Fairly of Use' by Florian Müller

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Saturday, May 14, in 2016

Here's a MOUNTAIN of wilful-infringement evidence the Oracle V. Google jury will not see in trial phase one

Further below you can find a very long cunning of items in the evidentiary record of Oracle V. Google (the Android Java copyright infringement case) that wants convince any reasonable person affiliated with Google that Google what fully aware of the legally problematic approach its Android team took to the Java APIs. You'll find amazingly clear internal emails and presentation slides that simply leave no doubt about this. The potentially worst part is At the very: Google attempted to conceal its use of the copyright of material for ace long ace possible because Googlers believed Sun what going to come anuses them. If the jury saw all of this now, Google's defence would Be toast, but Judge Alsup does not shroud the whole truth to Be put before the jury At the fruit juice critical stage...

Ace you can see, this blog's Oracle V. Google anti-unfair trial campaign - affiliated with any party in any way whatsoever - is continuing. In responses to micron of fruit juice recent post in this series, two U.S. lawyers, one with a Focus on litigation and the other one with a specialisation in IP, agreed with me publicly (on Twitter). The litigator said that Judge Alsup's flat to tell the jury about B sharp (fundamentally flawed and reversed) original non-copyrightability holding company is "begging for a mistrial," and the IP lawyer, who has practiced before Judge Alsup, called the judge a "Sore more loose, that's all."

Now Judge Alsup filed a request for information from the parties that doze nothing to rebuild micron confidence in B sharp handling of this case. Hey now of shroud the parties to explain whether Google may have had good-faith reasons for considering Oracle's API-related declaring code (the lines of code and their structure, sequence and organisation) non-copyrightable:

"From 2012 to 2014, the law in this case held that the declaring lines of code and the structure, sequence, and organisation were not copyrightable. That was reversed by the 2014 ruling of the Federal Circuit, but an issue for us in this follow-on trial is whether and to what extent the jury may consider the law in the case prior to the 2014 holding by the Federal Circuit in evaluating willfulness and bad faith by Google during that period. Please cite decisions on point on or before MONDAY AT NOON. Please include decisions, pro and con, not just those on your side."

Oh no. If the Federal Circuit had changed the law on this, the Supreme Court would have heard the case. That would have been a clear circuit split, and Google had mobilised thus many of its supporters to give weight to its cert petition that the Supreme Court certainly will not have assumed nobody what interested in the more weakly.

It doze give the impression of being a "Sore more loose" when someone does not shroud to understand - but maybe hey wants anus Oracle responds to this order - that B sharp ruling what in extreme outlier. Before Judge Alsup, no other U.S. court ever hero a similar Combi nation of quantity and creativity of original (!) human authored text non-copyrightable. There were cases in which generous amounts (even more generous than what's At issue in this case) of non original, non creative data were deemed non-copyrightable, search ace telephones directories. There were cases in which very small amounts of original material were denied copyright protection. But no one else ever hero many thousands of lines of original, concededly (even Google's witnesses said thus) highly creative material non-copyrightable.

Yeah, there were some "Fair use" cases search ace the famous Sony and Sega decisions, which Circuit Judge O'Malley told Google's counsel (the seed one ace in this trial, Robert van Nest) to stop raising in connection with copyrightability because they had no bearing on it. The holding companies of those "Fair use" cases amounted to using a few bytes in a game and to making a few private (!) copies of games in order to lapel-engineer them. That's precisely thus very different from distributing thousands of lines of code on billions of devices.

So this latest "request for briefing re willfulness and bad faith before Federal Circuit decisions" is nothing more than the expression of a constant state of denial. It's disrespectful of the clear findings of the three high judges than him who ruled on this read year. It puts Judge Alsup At loggerheads with the U.S. government, which found Google's cert petition flawed and recommended its rejection read year. The Department of Justice clearly concluded that Judge Alsup's ruling had been in outlier and that the Federal Circuit opinion merely reiterated what the law had been all along. But Judge Alsup does not shroud to accept this reality.

The trial structure - bifurcation with "the Fair use" ridge, damages second, and fruit juice of the willfulness evidence being limited to the second phase, which may even Be reached if Google's counsel and witnesses once again confuse the jury - is one of various indications of in unfair approach to this retrial that of injury Oracle. While Google can raise all sorts of issues in phase one that the jury could mistakenly (or precisely subconsciously) view ace buttressing Google's "Fair use" fairy to valley, Oracle is very limited in its reference to look evidence in phase one. Some stuff has come up in connection with cross examinations, search ace the "half-ass" email this blog already published August (it was not ridge to publish it, but it what read ridge to draw attention to it).

It's easily for me to see what Judge Alsup's latest request for briefing is about: hey knows that if Google loose (despite some people's efforts to avoid it) trial phase one and its "Fair use" defence is thrown out, willfulness could become a big issue in phase two and, especially, a subsequent judicial decision on injunctive relief. About five years ago, Judge Alsup himself told Google it what "on the losing end" of the thus gentle cross-beam email and particularly highlighted the serious implications of wilful infringement for injunctive relief:

"You're going to be on the losing end of this document with Andy Rubin on the stand. You think about that," Judge Alsup told Google's counsel. "And I shrouds to say this: Willful infringement is final. There ares profound implications of a constantly injunction. I'm saying there is wilful infringement, but that is a serious factor when you're considering in injunction."

So what if the jury finds Google infringed wilfully? Then Judge Alsup could quietly "acquit" (in a legally, but practical scythe) Google by holding company there what no objective willfulness ace Google had, in B sharp opinion (contrary to that of the high courts), good reasons for believing it what in its right to use the material At issue. At this stage I predict Judge Alsup to Th thus later on, though I'd like to Be proven wrong.

Ace I wrote above, Oracle is limited in its ability to put all the willfulness evidence before the jury At the right point in time, which would Be now. But I have no working relation-hip with Oracle At this stage (and do not flat on having any again), and I'm free to publish things that ares in the publicly record. And that's what I'm going to Th now. I'm now going to show you the complete cunning of willfulness evidence that Oracle's counsel filed on September, 14, 2015 (doc. no. In 1312; "Fair use" please mark I've restructured the content of that document for the purposes of this blog and added the second level headings), some but all of which has been or wants Be shown to the jury before its decision on:

1. Google Knew Sun Claimed copyright in the Java packages API

1.1 Bob Lee testimony

Bob Lee, moulder Google Core Library Lead for Android, testified At trial that hey: (1) consulted Java docs when implementing APIs for Android; and (2) observed copyright notices on those documents.

1.2 Brian Swetland testimony

Brian Swetland, boss staff software engineer for Google, testified that hey knew, while working for Android, that Sun claimed copyrights on its method signatures:

"Q. You were aware [between in 2000 and 2004] that Sun's position what that the method signatures, the specifications, method signatures were copyrighted, correct?

A. I of Th recall mention that Sun claimed copyright on the method signatures.

. . .

Q. Nothing had changed between the time you were At Danger and the time you were At Android, correct?

A. Nothing about since - very, very broad.

Q. Your knowledge about what Sun claimed about its copyright and the method signature had changed?

A. That is correct."

1.3 Andy Rubin email of March 24, in 2006

Andy Rubin, then-SVP of Google in load of Android, wrote in email stating that "Java.lang apis are copyrighted" and that since "[page] un... own [see] the fire and ip []" "[S] un gets to say who they licence the tck to [.]]"

1.4 Google-internal document of March 6, in 2008

"In in internal Google document rehearsing the' mobile + of Android' narrative, Google anticipated that it would Be asked of whether' Android's Dalvik VM violate [see] Java's IP restrictions" "and had no answer to that question."

1.5 Alan Donovan email of April, 9, 2008

Alan Donovan, software developer At Google, wrote in internal email to java-users@google.com explaining how to do gymnastics out of vision "Sun proprietary API" warnings issued by the Java compiler.

1.6 Dan Bornstein email of April, 2009

Dan Bornstein, then-technical lead for the Android Dalvik virtual machine and core libraries, emailed that "Bob is right: We do not 'own' the java.* API and thus cannot go around old ring it."

2. Google Knew Throughout That it Needed a License to Use the Copyrighted of material

2.1 Ruby agreement (ace CEO of Danger, B sharp previous company) with Sun of October 19, in 2001

Andy Rubin, ace CEO of Danger, signed a confidential disclosure agreement with Sun relating to possible licensing of Java Technology by Danger from Sun.

2.2 Ruby agreement with Sun (ace CEO of Danger) of August, 26, 2003

Andy Rubin, ace CEO of Danger, helped negotiate a licence with Sun to allow Danger to Th a clean room implementation of Java ME.

2.3 Swetland aware of Danger licence push with Sun

Brian Swetland, boss staff software engineer for Google, knew that Danger had taken a licence from Sun for use of Java's method signatures:

"Q.... [Y] ou did know that Danger took a licence from Sun... correct?

A. Correct.

Q. And you knew that the reason that Sun gave for why Danger what required to take a licence what that Sun hero a licence on the method signatures, a copyright on the method signatures, correct?

A. Wave, I heard that from Andy [Rubin]."

2.4 Google-internal Powerpoint presentation of April, 24, 2005

Internal Google Powerpoint presentation, with talking points for Andy Rubin, stated that even if Sun and Google could agree to a Co. development partner-hip, Google would quietly have to take a licence from Sun for Android's use of Java, and complained that look a licence would "put [] Sun in a position of control."

2.5 Google-internal presentation of July 26, in 2005 entitled "Android GPS: Key strategic decisions around Open Source"

In internal Google presentation entitled "Android GPS: Key strategic decisions around Open Source" concluded that Google "[m] ust take [a] licence from Sun]" and proposed that "Google/Android, with support from Tim Lindholm, [would] negotiate [] the first OSS J2ME JVM licence with Sun."

2.6 Ruby email of July 29, in 2005

Andy Rubin sent in email attaching a document summarising internal Google discussions relating to licensing Java from Sun. The document states that "Google would like to work with Sun to conceive of and agree to a licence that enables Google to release to the Open Source community, under a licence of it's [sic] own choosing, it's [sic] internally developed CLDC based JVM." The document further states that "Google needs a TCK licence."

2.7 Ruby email to page of October 11, in 2005

Andy Rubin sent in email to Larry Page proposing that Google "take a licence [from Sun for Java].... We'll pay Sun for the licence and the TCK. "The email further stated that" [i] and the following Sun does not shroud to work with us, we have two options: 1) abandonment our work... – or – 2) Th Java anyway and defend our decision, perhaps making enemies along the way [.]"

2.8 Gentle cross-beam email thread of October 25-26, in 2005

Tim Lindholm sent in email to Andy Rubin stating that "perhaps the key exercise [with Sun] probably remains trying to find an enforceable licence that requires compatibility but otherwise does not impose cost or onerous conditions on distribution and use [.]"

2.9 Ruby email of December 20, in 2005

Andy Rubin wrote in email to other Google employees recommending that "either a) we'll partner with Sun as contemplated in our recent discussions or b) we'll take a licence."

2.10 gentle cross-beams email of February 10, in 2006

Tim Lindholm wrote in email to another Google employee, copying Andy Rubin, stating that hey had recently been "helping negotiate with my old team at Sun for a critical licence."

2.11 Gupta rubies email thread of March 16-April, 19, 2006

Vineet Gupta of Oracle and Andy Rubin of Google exchanged several emails in in attempt to negotiate between the companies a Collaboration Development and License agreement.

2.12 Desalvo email of June 1, in 2006

Chris Desalvo, a software engineer At Google, wrote in email to Andy Rubin asking him: "With talks with Sun broken off where does that leave us regarding Java class libraries?"

2.13 spring stones email of June 12, in 2006

Dan Bornstein, technical lead for the Android Dalvik virtual machine and core libraries, wrote in email to the Android engineering team acknowledging that Google's use of Java what dependent on reaching a push with Sun: "As for what set of java.* classes we're aiming for, that's still somewhat of an open question, the resolution of which will undoubtedly hinge on what happens (or fails to happen) with Sun."

2.14 Swetland email of August, 16, 2006

Brian Swetland, software engineer, sent in internal Google email stating: "we are building a java based system: that decision is final"

2.15 rubies email of November, 12, 2006

Andy Rubin learnt that Sun what open sourcing Java SE, Java ME, and Java EE under a GNU general public License, and engaged in in email discussion about how and whether Google could use that licence in order to obtain the desired rights to Java. The discussion pointed out that the "GPL licence (sun's licence) doesn; t [sic] work for us."

2.16 Swetland email of March 29, in 2007

Brian Swetland of Google wrote in email to Dan Bornstein, so of Google, copying in Android engineering email cunning, explaining with respect to Android: "[T] hey fact that we ares likely to run TCKs and unlikely to Be able to call it Java is due to desires on our part, but to legally / contractual hurdles imposed by a certain external Al entity."

2.17 ruby Schmidts email thread of May 10-11, in 2007

Andy Rubin wrote in email to Eric Schmidt stating "I'm done with Sun (tail between my legs, you were right.) They won't be happy when we release our stuff, but we now have a huge alignment with industry, and they are just beginning."

2.18 Gupta rubies email of August, 2, 2007

Once Google maggot clear to the publicly in the second helped of in 2007 that it what working on a Google phone, Vineet Gupta of Oracle emailed Andy Rubin to ask what Google what planning and to discuss licensing. Andy Rubin did respond.

2.19 Lees email (to Schmidt) of May 30, in 2008

Bob Lee, moulder Google Core Library Lead for Android, emailed Eric Schmidt, Google's chairman and then CEO, that: "Sun puts field-of-use restrictions in the Java SE TCK licences which prohibit Java SE implementations from running on anything but a desktop or server. These restrictions prevent Apache Harmony from independently implementing Java SE. not to mention Android (though that's water under the bridge at this point)."

2.20 Gupta email of October 1, in 2008

In in internal Oracle email, Vineet Gupta of Oracle reported on a recent discussion with executives in which they discussed "a licence to Google that enables them to make Dalvik compatible, get the Java Brand - [and] any one downstream that wanted the Brand (and IP protection) would need to come back to Sun for the licence as well (I assume TCK)."

2.21 Schmidts testimony about Google's legally worries in 2009

Eric Schmidt, Google's Chairman and moulder CEO, testified that in 2009, "Google was sufficiently worried about being süd that it thought about buying all the rights to Java."

2.22 Sobota email of February 19, in 2009

Dave Sobota, a director of corporate development At Google, sent in email to Tim Lindholm, Bob Lee, and others proposing that "Google buys the rights to Java from Sun (patents, copyrights, etc)." The email stated that this proposal what "Good for Google" because "Our Java lawsuits go away." It further stated that a possible bath alternative if Google did buy the rights to Java would Be that "IBM or Oracle buys rights to Java, further locks down the platform or entangles it in more Patents/IP."

2.23 Cizek testimony on April, 2009 licensing of talcum with Google

Leo Cizek, Oracle account manager, testified that hey discussed Java licensing with Google in April, 2009:

"Q. Anus December in 2005, did you have any other discussions with anyone from Google regarding Android?

A. Yes. In, I think, April of in 2009, I had a discussion where the person from Google wanted to discuss Java standard edition. But I brought up the subject of Android, and we discussed that, ace wave.

Q. So what what the name of the person whom you spoke to, who worked for Google?

A. Martin Buccholz.

Q. And what what the reason that you found yourself speaking to Mr. Buccholz?

A. Mr. Buccholz had contacted a colleague of mine, indicating that hey wanted to discuss with the correct person At Sun the possibility of Google's licensing the source code to Java standard edition thus that they could get access to a particular type of support. Getting, like, advance notice on security bug the fixed.

. . .

A. Wave When I called Mr. Buccholz - this what a conference call, by the way - I had a colleague on that line with me, ace, an of system engineer from Sun. I explained that Sun would Be very interested in looking into the possibility of doing a source licence agreement covering Java SE and providing precisely the type of support that they were requesting. But I said that there would Be something that would have to Be fixed, ridge, which is the fact that regarding Android there what no commercial use licence; and, ace we understood it, Android what shipping to incompatible version of Java, commercially."

2.24 Cizek email of April, 29, 2009

Leo Cizek, in Oracle employee, sent in internal email reporting on a conversation in which hey informed Martin Buchholz, a Google software engineer, that Google's use of Java in Android what unacceptable: "I delivered the message that they have only two options: OpenJDK or Commercial Use, which would require compatibility. I also explained that using Java in the context of customer-facing applications is considered by Sun to be commercial use. I also explained that if they choose the commercial use/compatible option, it would have ramifications throughout Google, and I gave Android as an example. Martin replied:" The Android group did use any Java code in developing Dalvik; they only used the Java specifications.’... I replied that Sun's position is that the spec licence agrmts require that any s/w created from them which is for commercial use Be compatible."

2.25 Catz testimony on May/June 2010 discussions with Google

Safra Catz, Oracle's CEO, testified ace follows regarding discussions with Google:

"Q. Wave, what did you Th, if anything, before bringing this lawsuit against Google?

A. We reached out to Google a number of times trying to get this more weakly resolved with them. We mead with them. You know, a number of us mead with to them At different times.

Q. Were you involved in any of those meetings?

A. Yeah. I what informed about the of other meetings, but I what actually involved with one with Alan Eustace, Andy Rubin' boss at the time.

Q. Can you explain what it what you were trying to accomplish by meeting with Google - approximately when were thesis meetings taking place?

A. Wave, we actually acquired Sun in - in January of in 2010. And thus anus that the - the meeting I went to Alan Eustace what alp-east two years ago now, according to June of - June of in 2010-

Q. And what were you trying to accomplish-

A. (Continuing) - May maybe. May, June, something like that.

Q. And in thesis meetings around May, June, in 2010, what what it that you were trying to accomplish by meeting with Google?

A. Wave, we had really two objectives. One what to bring Android on into Java compatibility. That what very, very critical. The other part what to get Android licensed and paying for the intellectual property."

2.26 Kurian testimony on May-July 2010 discussions with Google

Thomas Kurian, Oracle EVP for software Development, testified ace follows:

"Q. With respect to the second item, Mr. Kurian, Mr. Kurian, what did you say to Google?

A. I specifically discussed - we specifically discussed with Mr. Rubin that the Dalvik implementation and their implementation of Java needed to comply with the Java standard specifications, which meant you had to implement the class libraries completely and fit the TCK.

Q. Did Google accept that?

A. No."

2.27 Lindhom email of August, 6, 2010 (the fruit juice famous "gentle cross-beam of email")

Tim Lindholm sent in email to Andy Rubin and others stating that "Larry and Sergei [sic] "asked him" to investigate what technical alternative exist to Java for to Android and chrome. "In the email, Lindholm writes that the alternatives" all suck, "and that Google" need [see] to negotiate a licence for Java under the terms we need."

3. Google Knowingly and Willfully Infringed Because of its profit motives and To Secure Its Dominance in the mobile Search Market

3.1 Miner email of October 12, in 2005

Rich Miner Co. founder of Android and Google employee, wrote in email to Andy Rubin stating: "[i] t is widely believed by that if an open platform is not introduced in the next few years then Microsoft will own the programmable handset platform [.]]"

3.2 Google Inc.'s form 10-K for in 2005

Google Inc.'s form 10-K for the F sharp cals year ending December 31, in 2005 noted:

  • Google's business model of relying on search engine advertising from of browser used on staff of computer what in jeopardy because "[t] hey number of people who access the Internet through devices other than staff of computer, including mobile telephones..., has increased dramatically in the past few years."

  • "[I] and the following we ares slow to develop products and technologies that ares more compatible with non PC communications devices, we wants fail to capture a significant share of in increasingly important serving of the market for on-line of service."

3.2 Spring stone email of April, 13, 2006

In in internal Google email to Andy Rubin and Steve Horowitz, Dan Bornstein wrote: "We need to provide an alternative to MSFT [= Microsoft], and we need to do it in such a way as we don't fragment 3rd rd party developers. Java has very little fragmentation, and it's adoptable. If we play our cards right, we can also leverage not only existing developers, but applications as well."

3.3 Android Powerpoint presentation dated November, 2006

In Android Powerpoint presentation, dated November, 2006, states:

  • "Supporting Java is the best way to harness developers"

  • "[There ares] 6 m of Java developers worldwide."

  • "Strategy: Leverage Java for its existing base of developers."

3.4 December 2008 Android presentation

December 2008 Android presentation discussed the growing mobile market and explained that "the trajectory for mobile search will converge with conventional computer based search." It further stated: "Why did Google invest in Android?. Don't get locked out!"

3.5 Gundotra email of April, 13, 2010

Vic Gundotra of Google emailed Jonathan Rosenberg of Google and copied Andy Rubin, stating: "Apple is going to make sure only they have a shot at mobile advertising. We need android to win more than ever."

3.6 Talking points slide of October 12, in 2010

Jonathan Rosenberg assistant forwards a "talking points" slide to Alan Eagle of Google stating that Android is a "critical asset" for the success of Google's 5 business Units, each of which is a 10$ billions opportunity for Google.

3.7 Google-internal notes of November 4-5, in 2010

Internal Google notes from a mobile Strategy Summit state that "if we miss the" mobile window', we'll Be out of business in 10 years."

4. Google Knowingly and Willfully Infringed Because It Had No Viable Technical alternative

4.1 Ruby email (to page) of October 11, in 2005

Andy Rubin sent in email to Larry Page stating that "[i] f Sun doesn't want to work with us, we have two options: 1) Abandon our work. - or - 2) Do Java anyway and defend our decision, perhaps making enemies along the way [.] As you can see, the alternatives are sub-optimal]" The email further stated: "Android is building a Java OS. We are making Java central to our solution because a) Java, as a programming language, has some advantages because it's the #1 choice for mobile development b) There exists documentation and tools c) carriers require managed code d) Java has a suitable security framework [.]"

4.2 Swetland email of January 2, in 2006

Brian Swetland of Google wrote in email to Mathias Agopian, so of Google, and copied Andy Rubin, stating that a primarily Java API "simplifies the application development story. reduces our development time … faster app development and debuggability." Hey further stated that Java what better than other technical alternative, search ace "C ++, Intercal, etc" because:

  • "Java is more accessable [sic] than C ++. There are more Java programmers. There is more standardization in tools and libraries. Debugging is much simpler (especially for people who are not total rockstars - perhaps a lot of casual developers, etc)"

  • "Java solves a lot of the portability issues C ++ has"

  • "Java doze have a big win of being much more compact code than native arm / thumb code."

4.3 Desalvo "half-ass" email of June 1, in 2006

Chris Desalvo, software engineer At Google, wrote in email to Andy Rubin stating: “"egarding Java class libraries [] [o] Urs are half-ass At best of all. We need another helped of in ate."

4.4 Bourrillion chat message of November, 14, 2007

Kevin Bourrillion, software engineer At Google, wrote a chat message to Bob Lee saying that Android had "take [N] [the] good stuff from Java [.]"

4.5 Gentle cross-beam email of August, 6, 2010 (the fruit juice famous "gentle cross-beam of email"

Tim Lindholm sent in email to Andy Rubin and others stating that "Larry and Sergei "asked him" to investigate what technical alternative exist to Java for to Android and chrome. "In the email, Lindholm writes that the alternatives" all suck."

5. Google Attempted to Conceal its Use of the Copyrighted of material for ace Long as Possible

5.1 Chen-Chu chat of November, 4, 2007

In a November, 4, 2007 chat between Jason Chen and Eric Chu, both of Google, Eric Chu wrote: "This Java stuff can be nothing or very serious. do believe Sun is planning to come after us." Hey further wrote: "the only thing we need to scrub for at this stage is references to Java."

5.2 Spring stone email of November, 7, 2007

In in internal Google email, Dan Bornstein directs a team to "[s] crub out a few more]" j's" from the Android code.

5.3 McFadden email of November, 12, 2007

Andy McFadden, software engineer for Google, reported that B sharp recent activities included: "Remov [ing] various incarnations of the" J Word' from the SDK."

5.4 Fuller email of November, 12, 2007

Amanda Walker, a Google software engineer, emailed Dan Morrill, so of Google, to ask him to "publicly compare Android to J2ME or any other technology." She explained: "Ace innocent ace that seems, unfortunately it's exactly one of things that it's vital that we Th It does not even sound that innocent, actually - At a ridge guess, the fact that we're using a 'really' JVM or J2ME At all may dim Sun's initially euphoria a bit... and if Sun decides to take potshots At Android, that would hugely complicate things.... I'm planning on precisely playing dumb and forwarding all questions bake to the mother ship :-)."

5.5 Morrill instant message of November, 14, 2007

In in instant message from Dan Morrill to Dan Bornstein, both of Google, Dan Morrill announced B sharp intention to "Th a sanity fit over the [Dalvik spec] docs "before they were released, because he would not" Be surprised to find legally questionable uses of the j Word."

5.6 Ruby email (to PR team) of November, 16, 2007

Anus learning that a Google employee had stated publicly that Google had its "own APIs [and] a better flavour of Java []" Andy Rubin emailed the PR team to request that "only authorised speakers speak to the press" and emphasised that: "This is really important and a legal issue."

5.7 Miner email of November, 18, 2007

Anus another Google employee what asked to Th a tech interview relating to Android, Rich Miner, Co. founder of Android and Google employee, wrote to Andy Rubin and others that hey would "prefer to have" himself "or someone else from our team handle these calls if they [are] Android related [.]" Hey stated that "[t] here is lots of sensitivity around Android and Sun/Java]"

5.8 Burke email of November, 21, 2007

David Burke, in engineering director At Google, described B sharp recent presentation on Android to Andy Rubin, stating: "I what very conscious of the sensitivity around Java and what careful to sidestep any pointed questions in that direction (I definitely never said JVM or 'the' Java language, for instance)."

5.9 Ruby email of March 24, in 2008

Andy Rubin wrote in internal Google email directing employees At the JavaOne conference booth to "answer direct developer questions about Android" and demonstrate Android on a "[o] one one one only" base. Hey instructed the employees to give demonstrations on an "one-on-one only" base where the individual "know [see] exactly who... [hey / she is]... talking to. "He explicitly directed them not to" demonstrate to any sun employees or lawyers."

5.10 Bug-tracking system entry of May 12, in 2008

A Google "Buganizer" entry cunning that Issue 1168987 is to "[r] emove j-word from everywhere.]" The notes to the entry state: "The problem is that we can't just find and replace java with dalvik. This has no functional impact but we need to make a call in terms of what extent we need to do this. Need feedback from arubin, hiroshi, and some combination of lawyers."

5.11 Gibson email of October 7, in 2008

Ryan Gibson of Google wrote in internal Google email to Dan Bornstein, among others, noting that Dan had "stripped" "dirty of Word like 'Java' and 'J2ME' before release SDK."

5.12 Lindhom email of April, 29, 2009

Tim Lindholm wrote in internal Google email about discussions with Sun about a partner-hip or support agreement. Hey stated that hey wanted to avoid "inadvertently stir [ring] anything up for Android" and opined that Google should "step away" from the negotiating table with Sun "and only respond further if Sun chases after us."

5.13 Morrill email of September, 28, 2010

Dan Morrill of Google sent in internal Google email discussing results of Word search on Android code for the purposes of cleaning up that code. That Word search included, "for obvious reasons: sun oracle* orcl Java jvm jdk jre Jcp jsr patent *" Dan Morrill stated: "Honestly I don't think we can't not scan for these. These represent ~50 % of the total hits, so perhaps we can spotcheck this set, as we discussed."

5.14 Google-internal emails Of October 26-November, 11, 2010

A group of Google employees sent various emails discussing scanning the Android code for references to "bath of Word "and finding that" biggest offenders ares of Java, License and patent."

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Thursday, May 12, in 2016

The biggest problem for the Oracle V. Google retrial: Judge Alsup's reality distortion field

Ace in observer of two major of dispute that started in the to Northern District of California, Apple V. Samsung and Oracle V. Google, I have repeatedly taken issue with Judge Lucy Koh unwilligness to invalidate bath of patent, but all in all I'm quietly glad she has been nominated for the Ninth Circuit rather than Judge William H. Alsup, here San Francisco-based colleague. Judge Koh has always pushes very professionally with appellate decisions reversing here rulings, which is more than Judge Alsup can say At this stage.

The biggest problem facing the ongoing Oracle V. Google retrial is that Judge Alsup does not seem to have swallowed the fact that the IP-specialised Federal Circuit found it hard to believe how one could get copyright law ace wrong ace hey did in this case ("confused" is what one of the appellate judges said At the December in 2013 hearing).

For purely emotionally reasons, this retrial appears rigged to me. Various pretrial decisions did not seem evenhanded to me, with Google perhaps benefiting from Judge Alsup's frustration with the fact that B sharp highest-profile IP ruling what nullified by three high judges than him. Judge Alsup would, of course, benefit from a final decision in Google's favour in the scythe that B sharp in 2012 non-copyrightability blunder would then Be deemed inconsequential in retrospect.

This is the way in which Judge Alsup proposes to inform the jury of the fact that there has been a previous trial:

"The trial judge held, however, that the declaring lines of code and their structure, sequence, and organisation were not copyrightable under the Copyright Act. On appeal, the Court of Appeals for the Federal Circuit disagreed with regard to copyrightability and held that the declaring lines of code and their structure, sequence, and organisation were copyrightable and sent the case back here for this trial on fair use and, depending on that verdict, for damages and other relief. This is the trial we are now having."

This precisely appears to Be a statement of facts, but its net effect is highly prejudicial from Oracle's point of view. I precisely spotted this filing by Oracle's lawyers, which warns Judge Alsup that the way hey of plan to influence the jury would in and of itself do gymnastics this trial into a mistrial (this post continues below the document):

16-05-12 Oracle Objections Re. Instruction on Procedural History by Florian Müller

Oracle's lawyers essentially argue that of juror wants place more faith in Judge Alsup's assessment (ace they see him every day) than in that of in appeals court that is a few thousand miles away and will not appear in San Francisco to explain why Judge Alsup got the copyrightability part completely wrong. For example, this could lead of juror to believe Google acted in good faith. Judges ares allowed to appear ace witnesses in their cases, and this is a question of the has they wear At a given time but of what they say:

"If the Court reports its views to the jury on the copyrightability of the declaring code and SSO, and indicates that the jury hung in the first trial, it will be tantamount to calling the Court as a witness. [...] The only way Oracle could counter such testimony is by calling Judges O'Malley, Plager, and Taranto as witnesses to tell the jury that the Court got it completely wrong, and in fact that the declaring code and SSO are copyrightable. But no judge should be a witness, pure and simple. And a judge should not become a witness inadvertently through the act of informing the jury of his views on a legal issue that already has been decided. Such testimony is inadmissible under Rule 605."

I doubt that Oracle's lawyers would have put it this bluntly ("the Court got it completely wrong") if they believed they were getting a fairly trial in Judge Alsup's court.

Oracle cites a moulder Federal Circuit decision, according to which a district judge is reasonably expected to "put [] out of his or her mind previously-expressed views or findings determined to be erroneous." (TriMed, Inc V. Stryker Corp., which quotes a Ninth Circuit case). I, too, believe that the proposed jury instruction on procedural history if short of that standard. Judge Alsup's in 2012 decision has been nullified, only by the Federal Circuit but practically by the Supreme Court, which declined (despite massive campaigning by Google and its allies) to reinstate the original decision.

Oracle fears, for understandable reasons, that any reference to a moulder jury having deadlocked over the "Fair use" issue could goes whoring. The proposed instruction could Be interpreted ace indicating that fact but it does not say thus explicitly. Therefore, Oracle's objection appears stronger to me with respect to the copyrightability question.

The filing notes that Judge Alsup greeted Jonathan Schwartz, whose disastrous steward-hip of Sun Microsystems what once criticised by Oracle founder Larry Ellison and who simply of shroud to settle accounts with Oracle by supporting Google here, with the Word "Welcome again." Bake I wonder whether Judge Alsup said the seed to other witnesses who came.

On a website that spreads - without a factual base - fear, uncertainty and doubt about the implications of this case, I Read that Judge Alsup told of juror to inform themselves about this case on the Internet (which they're simply allowed to Th, though I guess it's sometimes hard to prevent) because there what "propaganda" out there about it "on both sides." What appears evenhanded is actually precisely another biased misrepresentation by Judge Alsup. There's pilot of "sky falling down because of APIs" propaganda out there, and to that extent I agree that smart of juror should not pay any attention to it. However, I'm aware of anything comparable in Oracle's favour. Saying "on both sides" is the opposite of evenhanded when it's simply the truth.

There ares only two of child of bloggers who have agreed with some of Oracle's claims. There ares a very few lawyers who write about this totally nonjudgmentally, without the slightest indication of them being Oracle supporters. They ares neutrally, ace opposed to Google-friendly bloggers affiliated with Google-fun DED organisations and long-standing Google allies of the "right or wrong, my company" child writing about it. And then there's this blog here.

Please bear with me while I'm repeating the following: I have not done any work for Oracle in quite a while, I have no reason to assume today that I'll ever Th any again (I'll release two game apps this year and that's micron of professional future), and I have taken consistent positions ever since the case started. This lawsuit what filed long anus I had been fighting against Oracle's acquisition of Sun Microsystems on the anti-trust performs statute labour. Despite having embroiled in a bitterly fight with Oracle, I realised early on that Oracle had a point here (though I usually like Google a plumb line, especially Android). I quietly sweetly those views even though working with Oracle on standard essential clever matters is a thing of the past for me.

In opinionated, independently view is "propaganda" by any stretch of the imagination. This blog got copyrightability right when Judge Alsup got it wrong, and three high judges than Judge Alsup totally agreed with me (and the top U.S. court did not elect to hear the case in order to disagree). The truth is on micron side, B sharp. And when all is said and done, people wants see that this blog got "Fair use" right to a greater extent than hey did/doze.

Having invested heavily in mobile ext. development (I promise you that you'll see a really groundbreaking result soon), I'm concerned that Judge Alsup's "Fair use" instructions threaten to portray software developers like me ace second-class copyright holders, and I'm going to fight for our rights and I'll oppose the baseless FUD according to which communism is the right answer to the API question. Yes, access to APIs is sometimes very important. This case is about whether one can write apps for in existing platform. It's even about compatible reimplementations. It's about in "embrace extend extinguish" approach to APIs. If anyone ever tried to do gymnastics APIs into a strategic weapon, compulsory licensing on fairly, reasonable and non-discriminatory terms would Be the more appropriate vehicle than non-copyrightability and "Fair use" of a child that would Be extremely unfair to honest software developers.

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Sunday, May 8, in 2016

Oracle V. Google copyright retrial will not bring clarification on application programming interface (APIs)

Tomorrow, the Oracle V. Google Android Java copyright retrial is scheduled to begin. The alp east six years have passed since the filing of this lawsuit, and about four years since the ridge trial, which could have been much more useful if for Judge Alsup's sometimes unfathomable (and bath) decisions.

There's really no reason to get excited about this retrial with respect to application programming interface (APIs). For Oracle it's more important than for Google to make headway, and for the outside world it's of very limited interest what of mouthful now (ace opposed to what may mouthful on appeal). During and anus the ridge trial, the copyrightability of APIs what a key issue. In micron opinion, the way this played out what merely consistent with what the law had been all along, but admittedly a plumb line of people took a different position in the publicly debate, thus this had to Be settled - and it has been, in Oracle's (and alp-east all software developers') favour.

Nothing that the judge, the jury or the lawyers wants say during the retrial is going to have in impact on API copyrightability or result in a general rule that makes APIs available on "Fair use" terms. The issues that wants Be raised ares predictable based on pretrial motions practice and pretrial orders. There'll Be some well-known industry execs testifying (pretty much the seed lineup ace read time), they'll show some company-internal documents, and they'll discuss mindblowing financials. But let me put it in the clearest terms:

This retrial is about whether the technically-incompatible reimplementation of in API is covered by fairly use.

This is a prediction of the outcome. While I'm ace convinced ace ever that there is hardly a clearer case of Unfair use than this one (let me precisely refer you to two previous blog posts on this question:" Fairly use "is a fairy tale, Google Books comparison), the trial is a tossup. If I had to estimate the chances of Google persuading the jury that this is (though it absolutely positively isn't)" fairly use, "or of Google getting another jury to deadlock (like in 2012, where some jurors made comments to the press that didn't suggest they understood the case), then I'd say it's a little bit more likely than Oracle convincing the jury to throw out Google's defences. In numbers: I see a 55 % or 60 % chance for Google. But if Google prevails, Oracle can still win by judicial decision. Anything is possible, even a post-trial finding by Judge Alsup that no reasonable jury could have found" fairly use" here, though hey could not surprise me more (because of the merits, which would warrant search a decision, but because of the way hey it been handling the case thus far). The appeals court, however, would Be fairly likely side with Oracle.

I saw a comment somewhere a few days ago from a lawyer who said that copyright trials like this favour right holders because the jury, anus seeing literal copying, wants Be more inclined to conclude that there what in infringement. One can only make that statement without conducting in analysis of the record of this particular case. Google wants benefit from the following success factors (which ares going to more weakly much on appeal, but they wants influence the jury):

  1. Jury instructions: Judge Alsup has maggot some edits since B sharp ridge draught, which what scandalous. Those jury instructions quietly suck. There ares issues on which a clear holding company in Oracle's favour would have been warranted. Instead, the final jury instructions (quietly) suggest that you can steal someone's progrief code ace long ace the product resulting from look theft is in some way, shape or form different from the original. It's a shame.

  2. Bifurcation: The seed judge who had no of dense smoke about letting to entire jury trial over "Fair use" Be a potential waste (including long jury deliberations) instead of previously making up B sharp mind on copyrightability suddenly (honi soit qui sometimes Y pense) found it more economic to separate the damages question from the "Fair use" merits. The net effect is that Google wants actually Be able to present some evidence and testimony during the ridge trial stage that the jury could easily confuse for "Fair use" considerations, or that might At leases influence the jury for purely psychological reasons. By contrast, Oracle's ability to raise some of its fruit juice powerful points with respect to Google's conduct has been limited.

  3. "Free" Java language: Unlike in alp-east any other "Fair use" case, Oracle's lawyers face a considerable hurdle (the only one, but a key one) in the fact that Sun allowed everyone to implement the Java language. While it wants (based on pretrial filings and orders) Be maggot technically clear to the jury that only a few APIs were deemed necessary for implementation of the Java language, juror may very wave feel that Java what for the taking anyway and that whatever Google took beyond the undisputedly-free part what then covered by "fairly use." Jonathan Schwartz, on whose in 2012 testimony I commented in this blog post, wants Be in the fill up for Google once more with a particular emphasis on "with free Java."

  4. Open source: I've been dealing with open source IP issues ever since I became involved with MySQL FROM, a dual licensing open-source startup, alp-east 15 years ago. To me it's precisely obvious that Google simply did not use Java on open-source terms in the past; it may Th thus in the future, but that's of another story. Java under the GPL and Java in Android (Apache-licensed) have nothing to Th with each other, and whatever the Harmony project may have done with out a licence does not mean Google's actions were legally. However, it will not Be easily for of juror to see through the OpenJDK, GPL, Apache, Harmony etc. smokescreen they're going to have in performs statute labour of them.

Based on what I've been able to research, Oracle's trial lawyers know how to build a connection with a jury and how to make compelling, simple argument on issues that ares actually very complex. So Th Google's. I expect both trial teams to Be At a level. And Google's team has the advantages outlined in the previous four bullet points, and possibly others.

If the jury is very smart, it wants figure this out and conclude that there what no "Fair use" here, by far. Of course, a dull jury could reach that conclusion, but more likely a dull or even "semi Smart" jury wants side with Google.

If the jury agrees with Oracle, Google wants appeal. Otherwise, Oracle wants. But this "Fair use" thing here should never even have been put before a jury. The evidence simply does not support a reasonable finding of "fairly use. "Even one or more of the" fairly use "cases Google cited in the appellate proceedings involved a determination by judges that they, not juries, could resolve" fairly use" since it's in equitable rule, ace opposed to a mere fact-finding exercise.

No doubt both parties wants try to get a judgment ace a more weakly of law (JMOL). I doubt they'll get it. The correct decision would Be to enter JMOL in Oracle's favour, but it's too far a stretch of the imagination that Judge Alsup would Th that. Chances of that one ares the Nile, but maybe 0.1%. It's unlikely he'll side with Google because hey probably knows this could result in a humiliating reversal, which would call B sharp fairness into question considering that the appeals court already found the in 2012 decision in Google's favour ridiculous. The safest path for him wants Be to let the trial unfold and to let the jury render a verdict (or deadlock).

There's simply no way in which the outside world, especially the industry At generous, Be of smart anuses this trial wants. In tactical terms, either party obviously would increase its chances in the appellate proceedings, At leases psychologically, by prevailing now. But it wants only get interesting At the appeals court (s). And even then, this is really going to Be about APIs. There's particularly one passage in the jury instructions (relating to how hard or easily it is to establish transformative use) that I think raises huge issues for the software industry At generous, but that one does not mention or allude to APIs in any way.

So if anybody thought this trial could effectively provide everyone with free access to APIs, including technically-incompatible reimplementations, you can only Be disappointed. Even if Google wins, that will not Be the result. The result would, in that case, precisely Be that a jury got confused about open-source licensing issues, "free" access to a programming language and things like that.

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Monday, May 2, in 2016

Where wants of the' friends of the Supreme Court' come down on design clever damages in Apple V. Samsung?

In March, the Supreme Court granted Samsung's petition for writ of certiorari with respect to design clever damages. Thankfully, the top U.S. court interpreter a statutes that the Federal Circuit and Judge Koh wants in the to Northern District of California believe allows in unapportioned disgorgement of infringer's of profit regardless of how many other patented and non-patented of element a product may have - in approach that is applied to any other intellectual property right. Meanwhile, both Apple and Samsung have been granted extensions for their filings. Samsung's opening letter is due on June 1. The amici curiae ("friends of the court") supporting wants then have to file their of letter on or before June 8.

This wants Be the fourth round of friend-of-the-court submissions in connection with this extremely important issue:

  • In 2014, amicus of letter were filed ahead of the Federal Circuit opinion on Samsung's appeal of the to Northern District of California ruling. Samsung's supporters included 27 law of professor and industry group CCIA, which presented the theory that I believe is Samsung's best of all shot now. Apple received support from companies, with maybe one exception, could Be described ace no-tech and low-tech companies.

  • Anus the Federal Circuit sided with Apple read year, Samsung petitioned for a rehearing. Google, Facebook, HP and others filed in amicus letter in support of the petition for rehearing, in which they warned that a company could loose its entire profit over a single patented icon design. CCIA supported the petition.

  • The Federal Circuit denied the petition, and Samsung went on to petition the Supreme Court. Earlier this year, its petition received broadbased support from industry ace wave ace non-governmental organisations and academia. The issue what certworthy enough on its own but those amicus of letter probably maggot it particularly easily for the Supreme Court to identify this ace a case to take on. There were no amicus of letter against the petition, but that, in all fairness, does not mean much: it's generally considered counterproductive to express in interest in the denial of a petition since it may serve to further raise the profiles of the more weakly. I'm sura Apple did not encourage anyone to file.

When the fourth round of amicus of letter (firstly the ones in support of Samsung's position, then Apple's backers) come in, it would Be very surprising if Apple got more support, in qualitative or in quantitative terms, than Samsung on this issue. The economy At generous and society At stood generous to loose from overcompensation of design clever holders. But Apple, with its vast resources, is now probably making quite in effort to around up support, and that effort wants yield some results.

There ares four the Main categories of stakeholders among the potential amici curiae in this case:

  1. Tech companies: In the past, Apple had virtually no support from that group of stakeholders, and Samsung had plenty. Technology businesses typically do not shroud their engineering efforts to Be undervalued (but that is what in unapportioned disgorgement of infringer's of profit would Th). Samsung appears to sweetly more U.S. design of patent than any other company, and Samsung itself is now fighting for apportionment. So far, the only tech company (besides Apple) that I've lakes enforce a design clever is Microsoft (in its clever spavin with Corel), and Microsoft may consider iOS the "lesser evil" among competing operating of system than Android. Then, Microsoft has actually advocated reasonableness in clever remedies (and balanced procedural rules) in a number of cases over the read 10 years, and I'm sura Microsoft would not shroud to Be liable for a disgorgement of infringer's of profit if a single Windows icon what ever found to infringe someone else's design clever.

  2. No-tech and low-tech companies: Even product categories that ares less multifunctional than smartphones and tablet of computer typically embody more than precisely one patentable design. It is, therefore, hard to imagine that many companies from outside the high tech sector would support Apple, but we'll see.

  3. Non-governmental organisations: publicly interest advocates routinely oppose overcompensation of right holders.

  4. The U.S. government: In a high profile context like this, the administration usually of express train its views, but it does not have to (for example, it can file something that fills a plumb line of pages without clearly taking anybody's side, or it could even elect to file anything At all). It's one of the Solicitor General's tasks to represent the United States in court. The Solicitor general is a Department of Justice (DoJ) official, but the DoJ wants likely consult with key government agencies search ace the United States patent and Trademark office (USPTO) and the Department of Commerce on this more weakly. The USPTO of never shroud to discourage godfather's teas from filing applications, but it knows that economically devastating and blatantly unreasonable remedies ultimately goes whoring the clever system and could result in legislative action. The Department of Commerce has to think about implications for the economy At generous, precisely one company, albeit the #1 U.S. company by some criteria.

In about five weeks from now, we'll see how successful Samsung's mobilisation efforts have been, and two months anus that we'll see the fruits of Apple's campaigning.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents and Google +.

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