Oracle, Google lawyers split hairs over more jury instructions

Oracle, Google lawyers split hairs over more jury instructions

Summary: UPDATE #2: The jury came back with another question, suggesting that they might be not be so close to a verdict and back at square one.


SAN FRANCISCO -- The jurors in the Oracle-Google trial seem to be inching closer to a verdict as they returned with another note at the U.S. District Court on Thursday morning.

This time, the question addressed the third out of four questions that the jury must decide upon unanimously, which are listed at end of the 21-page set of instructions.

That question reads, "Has Oracle proven that Google's conceded use of the following was infringing, the only issue being whether such use was de minimis," which refers to an item being so small or insignificant that it wouldn't count as infringement.

Also in reference to the instructions, the juror who wrote the question was concerned over who should be considered the "general audience" in this case when considering who could determine if something would count as copying or not.

Splitting hairs once again, Oracle's lead counsel Michael Jacobs quibbled briefly with Google attorneys Robert Van Nest and Bruce Baber.

Jacobs suggested that the general audience should refer to an observer who is knowledgeable about the subject area. Van Nest and Baber argued that it should refer to basically anyone.

Judge William Alsup gave this one to Jacobs, saying he would instruct the jury to infer that the "average audience means those who would be expected to read the copyrighted works." In this case, that would mean anyone who can read the Java programming language.

Also up for debate were some additional financial documents concerning Android revenue that Oracle wants to present in case it comes to settling damages. Similar documents were originally sealed off from the case, but Oracle has found other ones with similar figures that it wants to provide as evidence now.

Essentially, Oracle is skeptical about reported losses associated with Android as well as how certain items -- especially related to engineering -- were expensed.

Although Judge Alsup questioned the validity of the documents, he ordered Google's team to produce more reports about Android expenditures from 2010 and 2011 by Monday.

UPDATE (05/03/12, 2:45PM PDT): The jury came back with another question -- this time about fair use again -- suggesting that they might be not be so close to a verdict and back at square one.

This time, the unidentified juror asked about transformative use, wondering if the jury could consider elements that Google engineers added to Android to determine the purpose and character of the structure, sequence, and organization of the 37 Java APIs at question in this lawsuit.

Judge Alsup pointed out that the jury probably wouldn't reach this part unless they've determined something has been copied.

Unsurprisingly, Google's lawyers were absolutely in favor of instructing the jury to consider elements added to Android to prove fair use. On the contrary, Oracle rebuffed this.

As a potential compromise, Jacobs suggested not giving any further instruction at all, telling the jury that the "existing instruction already provides guidance."

Judge Alsup listened to both sides and then wrote out the following instructions while the courtroom remained silent:

In evaluating the transformative value, you may consider the non copyrighted elements but only in so far as they shed light on the actual purpose and character of the use of the part of the copyrighted work used in the accused work. Of course, please remember to consider all of the factors outlined in paragraph 26. The Judge. May 3rd. 2:40PM.

UPDATE #2 (05/03/12, 3:45PM PDT): The jury came back with another question, and this one suggests that we might be a long way off from a verdict -- if they can ever reach one on copyrights.

A juror asked, "What happens if we can't reach a unanimous decision and people are not budging?"

Judge Alsup pointed out that the question was not asked by the foreperson of the jury nor did it explicitly say that the jury was in a deadlock. The judge proceeded to ask the lead attorneys from both Oracle and Google what they thought about it.

Van Nest seemed in favor of encouraging the jury to continue deliberating, while Jacobs was more cautious on how to play this, asking Judge Alsup about his experience in this regard.

Judge Alsup looked fairly determined to move the trial right along, suggesting that if the jury can at least find a partial verdict and agree on some of the questions, the trial could continue to phase two. Jacobs didn't offer much of a response on this, but Van Nest was soundly against the idea, suggesting that it could be "fatal" to the trial.

A tense situation in the jury deliberation room looked even more apparent as the seven female and five male jurors entered the courtroom. When Judge Alsup said to the jury that they must be working hard, one juror groaned and said loudly, "I know."

The jurors weren't given much instruction in response to the latest question. But Alsup did say that if the jury cannot ever vote unanimously, then the trial would continue to phase two. Yet the copyrights portion of the trial would need to be retried in the future with another jury.

The jury began deliberating on Monday afternoon after lawyers from both Oracle and Google offered their closing statements for the first segment of this trial.

On Tuesday, both legal teams met in the courtroom for a one-hour conference at 10AM PDT, debating answers to jury questions concerning Google’s use of Java APIs from Apache Harmony as well as Oracle’s proposed witness list for the next segment of the trial, which will focus on patent infringement.

On Wednesday, the jury returned with more questions that pointed towards copyright infringement. Although the answer didn't entirely please Google's lawyers, Judge Alsup instructed the jury that they could consider both direct and indirect streams of revenue related to Android.


Topics: Open Source, Google, Oracle, Software Development

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  • my verdict: Oracle will lose

    I'm so confident that my buddies and I put our money where our mouth is:
    We've got 2 bottles of [i]European[/i] (EU does not like language copyrights) champagne to celebrate the victory over Oracle's sleazy claims: one for the copyrights , the other one for patents.
    The third damage phase will be rendered moot by lack of any infringement.
    The Linux Geek
    • My guess: you dont hold any patents or copyrights

      You would not like someone taking something you spent years working on and and making billions from it and giving you nothing.
      Johnny Vegas
      • Back in real life

        Oracle spent no years or money on Java. Of course Sun did, and Oracle bought Sun. The exCEO of Sun on this court...

        "When asked the simple and direct question of whether, during his tenure at Sun, were Java APIs were considered propriety or protected by Sun, he simply stated, "No, these are open APIs, and we wanted to bring in more people... we wanted to build the biggest tent and invite as many people as possible."

        Former CEO of Sun states Android didn't need Java license
      • I Should Stay Out, But

        Johnny Vegas: You may not like it, but if the law allows or if you effectively waived your rights, you suck it up.

        Claverhouse: You buy a company, you buy its assets and its liabilities. It was Sun shareholders' problem if they did not recoup the costs of java when they sold the company, but the money spent by Oracle that is allocated to the value of the java asset plus the goodwill for future java revenues (including future claims from litigation) is the money Oracle spent on java and they get the credit for the investment they and Sun made to develop the platform. Oracle has spent money on java since acquiring Sun. For instance, they are now the hosts of, the place to go for java on-line documentation, tutorials, sdks, etc.
      • We hate patents and copyrights (except copyleft)

        Google does not make money on android. They are giving it away to empower the people.
        The Linux Geek
    • European? Mais biensur!

      Champagne as a term may only be applied to a sparkling wine from the Champagne province of France.

      This intellectual property stuff gets everywhere? No?
      • Great observation!

      • But....

        The term Champagne is not recognized in the USA as being exclusive to the Champagne province of France. I wonder how that would apply to the copyright argument? :)
    • And Linux can get copied?

      @Linux Geek presumably you're a fan of Linux and use it...yes? Well, would you like Microsoft to study the kernel, copy/paste a file or two, re-implement the rest, and start selling the result under either no license at all, or, maybe, the BSD license? Note, that with the BSD license you don't actually have to show your code...

      Is that an outcome you want? If not, and I hope not, given that you're self-styled Linux user, how is that hypothetical any different from what Google did with Java?

      I'm sure that Microsoft would use de minimus and public good to justify their actions....
      • Isn't that essentially what apple did? And it didn't hurt Linux.

        (Yeah, I know, Apple didn't use Linux, they used BSD and turned it into OS X.) And it wouldn't matter to the Linux community if someone did exactly what you said because it wouldn't prevent Linux from still being free to everyone. You see, your example doesn't work. Linux is and always will be in the public domain. It is free to copy and change. Even if someone makes a proprietary version and tries to sell it, Linux will still be free.

        Java, on the other hand, was free under Sun, and now Oracle bought Sun and is trying to take Java back. Maybe they can, and maybe they cannot, but Ellison is officially pond scum for trying.

        P.S. Obviously, I am not as smart as the people in the free software biz, because I could never figure out how to give something away and still make money on it. I can see doing it for altruistic reasons, but I could never cobble together a money making business plan around free software. I don't even fully understand how the companies doing it are doing it! (But I am grateful for free apps.)
  • Google P&L statements show a loss on Android

    Not exactly what Oracle needs to be able to extract large amounts of cash. IF they win.
    • that means the Google owes Oracle nothing!

      or may be Oracle has to pay Google for lost income. ;)
      The Linux Geek
      • Will Oracle be awarded some of this negative profit if they win?

        Ouch! On top of having to pay royalties to everyone who has ever written a programming language API they may be 'awarded' part of Google's losses on Android?

        Praise the bees!
        Still Lynn
  • Judge Alsup has just asked for a briefing on EU judgement

    Of course, I believe the guy already has a spine but this info will make it much easier for him as he will not be in a vacuum.
    • Thats nice but I dont think that EU ruling means anything here

      You expect Alsup to rule based on what was done in the EU? Surely, that would be easily appealed by Oracle and subsequently overturned.

      My question: What relevant case law/rulings in the US pertain to the copyrighting of API's? If there are any, then these would surely be relevant to this case and I could see Alsup basing a decision on this.
      • Yes that is why the Judge posed the 13 questions

        This is the US side.

        11. With respect to the Seventh Circuit decision in American Dental Association:

        (A) To what extent has it been adopted in the Ninth Circuit?
        (B) If the taxonomy in that decision was protectable, why shouldn???t Sun???s hierarchical outline of packages, classes, methods for the 37 API packages be protectable (other than perhaps the three core packages?

        (C) Did ADA hold that the numbering system alone (apart from the description) was copyrightable?

        12. With respect to the Ninth Circuit???s decision in Kapes:
        (A) Kapes stated ???Whether CDN???s selection and arrangement of the price lists is sufficiently original to merit protection is not at issue.??? 197 F.3d at 1256. If that was not issue, what, if anything, did Kapes expressly say about SSO?
        (B) In what sense were the ???prices CDN creates??? in Kapes a ???compilation??? within the meaning of the Copyright Act (see 197 F.3d at 1260, second col.).

        (C) Didn???t Kapes treat the coin prices as ???compilations???? Please explain how this was done. Has Oracle abandoned the compilation argument herein?

        (D) Was originality the only issue decided in Kapes?
  • Alsup has formulated a set of questions re: EU that shows he gets it.

    But now the jury might be hung on some questions. Everyone working hard but it is a mess.
  • Bad typo?

    <i>???What happens if we reach a unanimous decision and people are not budging????</i>

    Surely, ???cannot??? was left out of this sentence.
    • Surely.

      This is a difficult decision for people not in the industry and even those can't get it right. Oracle presented professors to parse the data. Fine. How many commercial projects have they completed? There is a real world aspect to this that cannot be understood by Florian et al unless you have seen 30-40 years of evolution. One cannot expect 12 (7 women) to be the ones to have the skills to do tech work. Please, the system is broken.
      • Thats why the judge was very specific in his instructions and questions

        But you are right, how can a jury adequately decide this?