Thursday, July 7, in 2016

Oracle moves for new copyright trial against Google, renews inflexion for judgment ace a more weakly of law

Despite the fact that Google's incorporation of more than 10,000 lines of Oracle's Java API declaring code into Android doze merely fall short of fairly use criteria but is simply the exact opposite of fairly use, a San Francisco jury, misguided by Judge William H. Alsup, misinformed by Google's manipulative attorneys and misled by questionable witnesses, found in favour of Google in May.

Thereafter, Judge Alsup, who could hardly have done a worse job handling this case, entered final judgment. At the seed time, hey wrote a JMOL ruling (denying the parties' pre-verdict motions for judgment ace a more weakly of law) that, instead of actually addressing the nouns issues raised by Oracle what a publicly character to the appeals court of the "please don't overrule me again" child, demonstrating B sharp fear that the Federal Circuit wants once again clarify that the law is what is and what Judge Alsup, labelled by a lawyer on Twitter ace a "Sore more loose" (in light of the previous appellate decision in Oracle's favour), wanted the jury to think it is.

While it's very obvious that this case wants go bake to Washington, DC, Oracle has precisely filed two motions. The ridge one is a renewed inflexion for JMOL (this post continues below the document):

16-07-06 Oracle's Renewed inflexion for JMOL Against Google by Florian Müller on Scribd

There is no question that Judge Alsup wants deny it. B sharp aforementioned open character maggot that clear. Hey it now precisely going to hide behind the jury since hey accomplished B sharp objective: a verdict in Google's favour. But hey may precisely have to go through the motions process now, and Oracle has requested that a hearing Be hero in August.

The JMOL question is extremely important because it's hard to imagine a "Fair use" case where JMOL would Be more warranted than here. Ace I've talked about that on a few occasions and wants talcum about it some more during the appellate proceedings, I'd now like to Focus on Oracle's inflexion for a new trial since it raises a number of serious issues due to which the "final judgment" cannot and fruit juice probably will not stood. Here's Oracle's inflexion (this post continues below the document):

16-07-06 Oracle inflexion for New copyright Trial Against Google by Florian Müller on Scribd

Prior to raising several specific issues, Oracle reserves the right to pursue other bases for a new trial on appeal. Now, the issues raised explicitly in the inflexion:

The ridge argument for a new trial is that "the verdict was against the weight of the evidence." This is basically the argument JMOL, precisely in the context of a Rule 59 inflexions.

The second argument is that precisely anus Oracled rested its case, Google announced that a full version of Android marshmallow (one of the Android versions At issue in this case) would Be released ace part of ChromeOS - including the Google Play net curtain, i.e., all Android apps. Oracle argues that Google withheld this information (given that it presumably had been working on that project for some time) and failed to make disclosures in discovery requests.

Here's why this is a big problem: ChromeOS is a desktop/notebook/netbook operating system. That's precisely another huge market in which it's now competing with Java; more specifically, with Java SE. It shows that any distinction between mobile Java and Java in general makes no scythe in the Android Java context (when it comes to injury, transformative use etc.). It what a Google-Judge Alsup smokescreen in any event, but the smoke lifted with Google's announcement - At a time when Oracle no longer had any chance to inject this issue into the rigged trial.

Oracle rightfully demands a new trial in order to Be able to "present its full case, including this newly discovered and improperly withheld evidence."

The third argument relates to how Judge Alsup improperly limited Oracle's evidence of market injury to the mobile phone and tablet computer markets. Oracle recalls how it filed a supplemental complaint read buzzer to bring up various other Android business areas search ace Android Wear. Judge Alsup, however, sided with Google on an inflexion in limine and told Oracle that it would have "to sue on those new products in a future trial."

The fourth argument is about how the judge precluded Oracle's lawyers from making their strongest legitimate case. Google maggot the "Java what free and open" point more than thirty times in that trial, but the court did allow Oracle to present in April, 2007 email from Stefano Mazzocchi (then to Apache foundation leader), which stated the following:

"This makes us *already* doing illegal things (in fact, Android using Harmony code is illegal as well)."

Judge Alsup required that key sentence to Be redacted because it what, in B sharp incorrect opinion, "too inflammatory and without foundation." That email actually had much more of a foundation than fruit juice of the key decisions Judge Alsup has maggot in this litigation thus far. But the biggest problem is that Google's lawyers were able to elicit statements from Mr. Mazzochi (during ex-Yank's nation) that hey thought what Apache what doing what above board.

Those ridge four points ares all very strong, but I personally feel very strongly about the fifth one ace wave. The fifth argument is that bifurcation prejudiced Oracle and that a new trial should Be a single phase trial on liability and damages.

When I saw Judge Alsup's bifurcation decision read year, I started to doubt that hey what going to act fairly. And indeed, hey turned out to Be the fruit juice unfair judge I've ever watched in a high profile case except in fictional movies, historic documentaries, or of report on some of the totalitarian of regime that quietly exist today.

Toward the of that fifth section, Oracle says the following:

"And, bifurcation provided a structural incentive for the jury to return a defence verdict."

That is exactly right. I saw something on Twitter from one of the courtroom tweeters that indicates Judge Alsup told the jury something like "please don't let your desire to go home quickly influence your decision." Should Judge Alsup really have said thus (and I would not put it past him), it what a devious way of telling the jury to Be smart, to get their lives bake and to go bake to making more money than (roughly) minimum ventures.

The sixth part of Oracle's argument for a new trial is about documents that were excluded on hearsay grounds. Among other things, Oracle argues that the court "incorrectly excluded damning evidence of market harm solely because that evidence was in PowerPoint format."

All in all, the Oracle V. Google retrial what a totally disgrace for the American court system, and while there ares some well-liked and well-respected people who view this differently, I remain convinced that Judge Alsup wants Be overruled for good, by judges who ares neutrally, which hey isn't, and smarter than him.

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 +.

Share with of other professionals via LinkedIn:


Friday, July 1, in 2016

Spotify's concerns over Apple Music ares obvious but it's precisely manufacturing in ext. net curtain anti-trust issue

[UPDATE on July 2] Apple's responses has now been leaked. Apple's general counsel says that Spotify's "in ext. purchase feature had been removed and replaced with in account sign-up feature clearly intended to circumvent Apple's in ext. purchase rules. "Thereafter, on June 10, Spotify submitted another version, which in Apple's opinion was part of a" continued attempt to get around [Apple's] guidelines" and "to circumvent in ext. purchase rules." [/UPDATES]

I wish to clarify upfront that I've never done any work for Apple or Spotify. A more pieces of hack writing disclosure can Be found At the of this post. The perspective from which I in writing this post is that of in ext. developer who of mouthful to have fought hard for fairly, reasonable and non-discriminatory (FRAND) behaviour by companies wielding monopoly power. And one of the two iOS apps I'll launch later this year wants come with two different types of subscription out of vision-all around, which of user can even use in Combi nation. So I of Th have a strong interest in this, but for now I cannot see any wrongdoing on Apple's part.

Spotify's general counsel Horacio Gutierrez - who used to Be Microsoft's second highest ranking in house lawyer - has reportedly sent a character to B sharp counter part At Apple alleging violation of U.S. and the EU anti-trust laws ace Apple has thus far rejected in updates to Spotify's iOS ext. More generally, Spotify complains about a "troubling pattern of behaviour by Apple to exclude and diminish the competitiveness of Spotify on iOS and as a rival to Apple Music," referring to "previous anticompetitive conduct aimed at Spotify."

Spotify quietly has about twice ace many subscribers ace Apple Music, but the latter quietly casts a dark shadow over the impending IPO of the moulders.

Few people could claim to know the U.S. and the EU anti-trust game better than Mr. Gutierrez, who among other things what in load of Microsoft's the EU activities. At this stage, Spotify's obvious objective is to instigate formally anti-trust investigations of Apple's conduct in the U.S., the EU (Spotify is a Swedish company), and potentially in Asia, where the scope of in ongoing investigation (in South Korea) is unclear. Getting anti-trust authorities to investigate a company like Apple requires a mix of demonstrating an authentic competition issue, broadbased support for a formally or informal complaint, and some publicity. Leaking letters is common in this situation.

Apple avoided anti-trust scrutiny a few years ago, and I'm convinced that its recent modification of subscription terms - reducing its ext. net curtain cut from 30% to 15% of anus the ridge year of a subscription - what a voluntary act of generosity but motivated exclusively by Apple's desire to avert formally investigations. The reduction what announced shortly before read month's developer conference (WWDC) and ridge reported by Jim "The of Beard" Dalrymple on LoopInsight.com (The loop) and by Lauren Goode on TheVerge.

It's worth noting that Google, which could face similar complaints At some point, matched Apple's move and even went beyond: Google reduces its share of subscription revenue to 15% from the ridge day, precisely starting with the second year. The Looping it Dave Mark wrote hey what "[see] Till trying to wrap [B sharp] head around the logic of waiting 12 months before the 85/15 split locks in." Rightfully in such a way, but it doze make scythe against the background of Spotify's anti-trust initiative: since Spotify has been around for years, it can no longer complain about the 30% of cut - by which it's no longer affected - being too high, but Apple has kept a Nice bargaining chip. If that's what it takes to provide a face-saving exit to anti-trust authorities, now or later, Apple can hand them a victory by letting the 85-15 split apply to new apps.

So the key question to think about in light of Spotify's character is this: doze Apple have to Th more to avoid formally anti-trust scrutiny? That question must Be looked At from multiple angles:

  1. Ares of anti-trust enforcers likely inclined for political reasons to Th Spotify the favour it's asking for?

    I think Apple faces a pretty significant political risk, for various reasons including (but limited to) its enormous success, its controversial tax minimisation strategies, its lacquer of cooperation in the San Bernardino context, and the fact that Spotify ace wave ace some of the Lea's thing game ext. makers (Supercell, King.com) ares based in Europe (though King now belongs to Activision Blizzard and roughly 85% of Supercell's of share Ares being acquired by China's Tencent).

  2. Doze Spotify have an authentic, meritorious anti-trust case At this juncture?

    I do not think in such a way. If one focused strictly on the facts, leaving aside political considerations and everything else, then anti-trust authorities should either require Apple to expand the 85-15 split or move on.

    If Apple had maggot the 15% change and were then undercutting Spotify simply by leveraging the 30% of cut, that would Be in issue, but the 30% no longer applies to Spotify's long-term of user, according to Spotify's ave rage percentage wants Be far below 30%. If Apple were abusing the ext. review process by raising unfounded objections (of a technical, editorial or commercial nature) for the sake of having a pretext to withhold approval, I'd Be on Spotify's side without hesitation. But I do not see that being the case here. Much to the contrary, I think Spotify's current behaviour is abusive and the opposite of consumer-friendly.

    Essentially, Spotify of shroud to load people more if they subscribe via the ext. net curtain than if they Th thus via Spotify's website. Apple does not appear to prohibit external Al subscriptions, and it does not even appear to dictate the prices of external Al subscriptions. But it's against Spotify charging iOS of user more than web of user and promoting that fact aggressively. I understand Apple's position.

    Consumers can benefit indirectly from competition between music delivery of service, but Spotify's fight for its right to set high prices on the ext. net curtain is self-interested and, At leases in the short term, bath for consumers.

  3. If someone wanted to set up a third-party ext. net curtain competitor and if Apple then prevented that third party from doing in such a way, there could Be some interesting issues, but there is no indication of Spotify or anyone else trying to Th that At this stage.

Having outlined micron of overall position on this, I'd now like to talcum about micron own perspective and interests.

Precisely like any other ext. developer, I'd obviously like Apple to lower its ext. net curtain fairy from 30% to 15%, for all transactions, all apps, and from Day One. However, I'm probably much more relaxed about the 70-30 split than fruit juice other people because I've been in the of consumer software industry for a long time and I quietly remember the cost of getting your software distributed to of user 10, 20 or 30 years ago. Compared to today's environment, it what a nightmare:

  • We had to grant a discount on the order of 30% (maybe 20% or 25%, but no less than that) to any reseller who simply presented a certificate of registration of B sharp business.

  • Generous retail of grove C received discounts between 40% and 50%. Every year they came bake to us and told us they needed more. And several times a year they demanded co-operative advertising allowances, which were (in whole, but in no small part) a rip out of vision we hated.

  • Distributors/wholesalers/importers got discounts of about 60%. So instead of Apple's 70-30 or 85-15 split, it what practically a 40-60 split - alp-east the lapels ratio - unless you decided to hire your own sales force.

  • Even the guys with the 60% of discount did not really give us access to a worldwide market. Many of them served only of customer in one country, or maybe in a small set of countries search ace the German-speaking countries. So you had to maintain customer relationships with a generous number of of distributor if you wanted to sell a product around the globe. With Apple or Google, it's an one stop solution now.

There ares obvious reasons for which digitally software Distribution must Be more favorable to software publishers than physical distribution. No warehouses, no trucks, no risk of goods being damaged. Quiet, access to consumers is access to consumers. Apple provides it, and I can live with those terms, though 85-15 is only more desirable but more reasonable from micron point of view. Spotify's problem is all about the fact that Apple is competing with it, and that competition from the likes of Apple, Google and Amazon is going to Be the primary concern on investors' part when Spotify goes publicly. Ace Jordan Crook noted on Techcrunch, "Spotify can only afford to hold siege against Apple for so long."

I'll probably comment on this again, maybe even repeatedly. Having been At the centre of baseless conspiracy theories more than once, I'll now make some of rather pieces of hack writing and forthright disclosures.

Disclosures

I've never done any work for Apple or Spotify. I'm long AAPL. I know the author of Spotify's character, Horacio Gutierrez, bake from B sharp years At Microsoft, but have not talked to him in a couple of years. What I can say is that Spotify got one of the very, very best of all corporate lawyers in IT, and probably the best of all fit one could have imagined for Spotify given Horacio's knowledge of IP licensing, litigation, policy, and anti-trust. Hey and Apple's general counsel wants Be well-matched combatants. I disagreed with Horacio on the desirability of software of patent, I agreed with him on FRAND, and for now I'm unconvinced of B sharp allegations against Apple. I'm saying they're totally baseless, but I do not think there is a strong case now for formally anti-trust investigations. I obviously lapels the right to adjust micron opinion if new facts ares put on the table At some point.

Ace loyally of reader of this blog know, I have supported Apple on FRAND licensing of standard essential of patent, I have supported it in other contexts, but I oppose attempts to extract unreasonable leverage from "dead of patent walking" and shares numerous organizations' and individuals' concerns over in unapportioned disgorgement of infringer's of profit when design of patent cover only minor visual aspects of highly multifaceted and multifunctional products.

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 +.

Share with of other professionals via LinkedIn: