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Oracle v. Google - Copyright Summary Judgment Hearing Tomorrow - UPDATE |
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Wednesday, September 14 2011 @ 11:00 AM EDT
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The hearing on Google's Motion for Summary Judgment on Oracle's copyright claim is on for tomorrow, September 15, although the time of the hearing has been moved up to 8:00 a.m. The parties clearly intend to put on a bit of a show given all of the equipment they have requested. 422 [PDF]
Oracle is also making a last minute request to enter excerpts from the transcript of Dr. Astrachan's deposition 420 [PDF], since that deposition was not taken until after the deadline for filings pertinent to the hearing. Expect that request to be granted.
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UPDATE
Got that one wrong. Google quickly filed an objection 424 [PDF] to the Oracle request with respect to the Astrachan deposition. Google argues its too late and, more importantly, irrelevant to the issue up for summary judgment.
Judge Alsup has agreed that it is too late for it to be considered in the summary judgment proceeding. 425 [PDF]
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Docket
417 – Filed and Effective: 09/12/2011
CLERKS NOTICE
Document Text: CLERKS NOTICE Rescheduling Hearing. Motion for Summary Judgment set for 9/15/2011 8:00 AM. (dt, COURT STAFF) (Filed on 9/12/2011) (Entered: 09/12/2011)
418 – Filed and Effective: 09/12/2011
LETTER BRIEF
Document Text: Letter Brief from Robert Van Nest filed byGoogle Inc.. (Van Nest, Robert) (Filed on 9/12/2011) (Entered: 09/12/2011)
419 – Filed and Effective: 09/12/2011
MOTION
Document Text: Administrative Motion to File Under Seal RE: REQUEST FOR LEAVE TO FILE PORTIONS OF DEPOSITION TRANSCRIPT filed by Oracle America, Inc.. (Swoopes, Roman) (Filed on 9/12/2011) (Entered: 09/12/2011)
420 – Filed and Effective: 09/12/2011
LETTER
Document Text: Letter from Michael A. Jacobs REQUEST FOR LEAVE TO FILE PORTIONS OF DEPOSITION TRANSCRIPT. (Swoopes, Roman) (Filed on 9/12/2011) (Entered: 09/12/2011)
421 – Filed and Effective: 09/13/2011
MOTION
Document Text: MOTION Request and [Proposed] Order Regarding Courtroom Equipment for September 15, 2011 Summary Judgment Hearing re 260 MOTION for Summary Judgment on Count VIII of Plaintiff Oracle America's Amended Complaint filed by Oracle America, Inc.. Motion Hearing set for 9/15/2011 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 8/19/2011. Replies due by 8/26/2011. (Swoopes, Roman) (Filed on 9/13/2011) (Entered: 09/13/2011)
422 – Filed and Effective: 09/13/2011
ORDER
Document Text: ORDER GRANTING REQUEST TO USE EQUIPMENT AT SEPTEMBER 15 HEARING, Order by Hon. William Alsup granting 421 Motion to Use Equipment.(whalc1, COURT STAFF) (Filed on 9/13/2011) (Entered: 09/13/2011)
423 - Filed & Entered: 09/13/2011
Certificate of Service
Docket Text: CERTIFICATE OF SERVICE by Oracle America, Inc. (Swoopes,
Roman) (Filed on 9/13/2011)
424 - Filed & Entered: 09/13/2011
Letter
Docket Text: Letter from Michael S. Kwun in Opposition to Oracle's
Request for Leave to File Portions of Deposition Transcript. (Kwun,
Michael) (Filed on 9/13/2011)
425 - Filed & Entered: 09/14/2011
Order
Docket Text: ORDER DENYING PRECIS REQUESTS REGARDING SUPPLEMENTAL
FILINGS re [420] Letter filed by Oracle America, Inc., [424] Letter
filed by Google Inc.. Signed by Judge Alsup on September 14, 2011.
(whalc1, COURT STAFF) (Filed on 9/14/2011)
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Documents
417
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE, INC.,
Defendant.
No. C 10-03561 WHA
CLERK’S NOTICE
RESCHEDULING HEARING
(Plaintiff shall serve a copy of this notice on any party in the above-entitled action not
appearing on the Notice of Electronic Filing or Other Case Activity and/or the attached
Certificate of Service.)
YOU ARE NOTIFIED THAT the Motion for Summary Judgment previously set for
September 15, 2011 at 2:00 p.m. has been rescheduled for September 15, 2011 at 8 a.m.,
before the Honorable William Alsup. Please report to Courtroom 8, on the 19th Floor, United
States Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102
Dated: September 12, 2011
FOR THE COURT,
Richard W. Wieking, Clerk
By:_____________________
Dawn Toland
Courtroom Deputy to the
Honorable William Alsup
420
[Morrison Foerster letterhead]
September 12, 2011
The Honorable William H. Alsup
Judge of the United States District Court
Northern District of California
450 Golden Gate Ave.,
Courtroom 8, 19th Floor
San Francisco, CA 94102
Re: Oracle America, Inc. v. Google, Inc., Case No. 3:10-cv-03561-WHA
Dear Judge Alsup:
Oracle respectfully requests leave to file a motion pursuant to Civil L.R. 7-3(d) to
supplement its evidence in support of Oracle’s Opposition to Google’s Motion for Summary
Judgment on Copyright (Dkt. No. 339) with excerpts from the deposition transcript of
Google’s copyright expert, Dr. Owen Astrachan, taken September 9, 2011. Alternatively,
Oracle requests leave to simply file the above transcript excerpts. The parties’ scheduled
depositions of their respective copyright experts took place after briefs on the summary
judgment motion were due, so Oracle could not have submitted this evidence earlier.
Google’s motion contends that designing APIs is “the very antithesis of creative
expression.” (Google Reply Brief at 4:2-3). At his deposition, however, Dr. Astrachan
acknowledged that designing APIs requires skill and creativity:
[REDACTED]
[REDACTED]
The Honorable William H. Alsup
September 12, 2011
Page Two
[REDACTED]
[REDACTED]
[REDACTED]
Astrachan Dep. Tr. at 128:23-129:14. See also id. at 223:5-25 (acknowledging that
designing the APIs at issue [REDACTED] and that the design process
involves [REDACTED].
Dr. Astrachan further acknowledged the skill writing good APIs requires:
[REDACTED]
Id. at 126:21-127:5. Dr. Astrachan added: [REDACTED]
Id.
at 128:9-13.
Dr. Astrachan however, discounts this creativity because he contends that despite their [REDACTED]
between these
The Honorable William H. Alsup
September 12, 2011
Page Three
elements, the APIs are simply [REDACTED] Id. at 241:18-242:21. He
also tried to discount this creativity at his deposition, by claiming, contrary to the definitions
for “API” he provided in his expert report that the APIs are purely abstract and are not
expressed in either the specifications of the software. Compare id. with Astrachan
Astrachan Decl. Ex. 1 at ¶ 24 n.1 (citing Newton’s Telecom Dictionary’s definition of an API
as “[s]oftware that an application program uses to request and carry out lower-level services
performed by the computer’s . . . operating system.”)
Dr. Astrachan’s testimony also sheds light on the issue of compatibility that Google has
raised with the Court. When asked whether Google could have written its own APIs for the
37 packages at issue in this case, Dr. Astrachan replied: [REDACTED]
Id.
253:2-4. The design goals to which Dr. Astrachan referred were [REDACTED] Id. 251:21-24.
So that the Court may better consider the above, Oracle requests leave to file excerpts
from Dr. Astrachan’s deposition transcript in support of its opposition to Google’s motion.
Respectfully submitted,
/s/ Michael A. Jacobs
Michael A. Jacobs
cc: Counsel for Google, Inc.
422
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE INC.
Defendant.
Case No. CV 10-03561 WHA
REQUEST AND
ORDER REGARDING
COURTROOM EQUIPMENT FOR
SEPTEMBER 15, 2011 SUMMARY
JUDGMENT HEARING
Date: September 15, 2011
Time: 8:00 a.m.
Dept.: Courtroom 8, 19th Floor
Judge: Honorable William H. Alsup
Plaintiff Oracle America, Inc. (“Oracle”) respectfully requests permission, pursuant to
General Order No. 58, for the parties to bring the following equipment into the courthouse, and to
possess and use that equipment in Courtroom 8 during the Copyright Summary Judgment Motion
Hearing, scheduled for Thursday, September 15, 2011, at 8:00 a.m.
The specific devices are as follows:
1. 2 50” Plasma Screens
2. 2 Dual Post Stands
3. 1 data projector
4. 1 7.5’x10’ projector screen
5. 1 visual presenter
6. 1 video switch box
7. 2 cart / stands
8. 4 laptop computers
9. cables, peripherals, and power cords for the foregoing equipment
The parties are coordinating their efforts and will share the presentation equipment.
Oracle further requests the Court’s permission for the parties to set up their respective
electronic devices in the courtroom on Wednesday, September 14, 2011, at 4:00 p.m., or at such
time the Court may specify, to facilitate the timely and orderly conduct of the hearing.
1
Dated: September 13, 2011
MICHAEL A. JACOBS
MARC DAVID PETERS
DANIEL P. MUINO
MORRISON & FOERSTER LLP
By: /s/ Roman A. Swoopes
Roman A. Swoopes
Attorneys for Plaintiff
ORACLE AMERICA, INC.
ORDER
For good cause shown, the foregoing requests are GRANTED.
IT IS SO ORDERED.
DATED: September 13, 2011
/s/ William H. Alsup
THE HONORABLE WILLIAM H. ALSUP
United States District Judge
2
424
[Keker & Van Nest letterhead]
September 13, 2011
Honorable William Alsup
U. S. District Court
Northern District of California
Courtroom 8 - 19th Floor
450 Golden Gate Avenue
San Francisco, CA 94102
Re: Oracle America, Inc. v. Google Inc.
U. S. District Court Case No.: 3:10-cv-03561 WHA
Dear Judge Alsup:
Google opposes Oracle’s September 12, 2011 request to file post-reply evidence related
to Google’s motion for summary judgment on Oracle’s copyright claim (Dkt. 420), and asks that
the Court strike Oracle’s précis from the record.
Oracle’s précis violates Civ. L.R. 7-3(d), which prohibits the filing of “additional
memoranda, papers or letters” without leave of court after the filing of a reply brief, with two
exceptions that Oracle does not claim apply here. The vast majority of Oracle’s précis quotes
from evidence that is not before the Court, and argues its relevance to the summary judgment
motion. That is not a request for leave to file “additional memoranda, papers or letters”—it is
the unauthorized filing of an additional memorandum. Indeed, Oracle candidly explains that it
seeks leave to file excerpts from the transcript of Prof. Astrachan’s deposition “[s]o that the
Court may better consider” the arguments in its précis. (Jacobs Ltr. at 3.) That is, the purpose of
the filing for which Oracle seeks leave is to provide evidence that relates to arguments in its
précis—arguments Oracle filed without leave.
Honorable William Alsup
September 13, 2011
Page 2
Moreover, the evidence Oracle seeks to place before the Court is irrelevant or
cumulative. For example, Oracle points to testimony about whether the process of designing
APIs involves creativity. But the primary question before the Court is whether the APIs
themselves and their elements are protectable—i.e. copyrightable—expression, not whether the
process of creating them was “creative.” Oracle also re-argues a point from its opposition—that
designing APIs requires “skill.” This is irrelevant, because “skill” is not the measure of
copyrightability, any more than sweat of the brow is. Oracle also appears to argue that its APIs
are not abstractions, although its own expert opined that APIs “impose a level of abstraction . . .
on top of the underlying software platform.” Mitchell Decl., Ex. 2 ¶ 23. Finally, Oracle points
to testimony from Prof. Astrachan regarding interoperability that is consistent with the positions
Google has taken, and that the parties have already briefed.
The précis is an unauthorized sur-reply, filed in violation of Civ. L.R. 7-3(d), and raises
no new, relevant issues. The Court should not grant Oracle leave to file additional evidence, and
should strike the précis from the record. If the Court does not strike the précis, Google requests
leave to file a three page letter brief in response to the arguments improperly made in the précis.
Respectfully submitted,
s/Michael S. Kwun
MICHAEL S. KWUN
cc: Counsel of Record, via ECF system
425
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
No. C 10-03561 WHA
ORDER DENYING PRÉCIS
REQUESTS REGARDING
SUPPLEMENTAL FILINGS
Depositions of the parties’ copyright experts took place after defendant’s motion for
summary judgment on the copyright claim was fully briefed. Oracle America, Inc. now seeks
leave to supplement its opposition with excerpts from the deposition of defendant’s expert
(Dkt. No. 420). Google Inc. opposes (Dkt. No. 424). The request is DENIED. Good cause has
not been shown for expanding the scope of the summary judgment record at this time.
In opposing Oracle’s request, Google requests that Oracle’s précis be stricken or that
Google be allowed to file a reply to the substantive arguments therein. These requests are also
DENIED. Oracle’s précis is not part of the summary judgment record, and its contents will not be
considered in deciding that motion. Accordingly, no such measures are necessary.
IT IS SO ORDERED.
Dated: September 14, 2011.
/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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Authored by: stegu on Wednesday, September 14 2011 @ 11:16 AM EDT |
Point out any mistakes here, preferably in the title of your post. [ Reply to This | # ]
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- Corrections - Authored by: Anonymous on Wednesday, September 14 2011 @ 12:03 PM EDT
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Authored by: stegu on Wednesday, September 14 2011 @ 11:18 AM EDT |
Comments on New Picks belong here. Please set the title of your post to the
title of the article you are commenting, and if you want to be polite to your
readers, include a clickable link to it as well.
[ Reply to This | # ]
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Authored by: stegu on Wednesday, September 14 2011 @ 11:22 AM EDT |
If you want to discuss anything not directly related to either News Picks or the
main article, post here.[ Reply to This | # ]
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- Ballmer Lays Out The 7 Most Important Products For Microsoft And One Is A Big Surprise - Authored by: PolR on Wednesday, September 14 2011 @ 04:54 PM EDT
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Authored by: stegu on Wednesday, September 14 2011 @ 11:25 AM EDT |
Comes volunteer work goes here. Please post your HTML formatted transcripts as
plain text, making it easy to cut and paste it into the archives.[ Reply to This | # ]
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Authored by: celtic_hackr on Wednesday, September 14 2011 @ 01:05 PM EDT |
Isn't that a bit unfair to Google? Will they have time to prepare to counter
that? I realize all sorts of unfair things happened in the several SCO Saga
Court Affairs, so I'm not, and won't, be surprised by this. I realize that since
there has been a deposition and Google is likely in possession of a copy of
said deposition, they can prepare for it. Someone at Google's law firm will be
taking work home tonight I guess (well if we can believe those TV attorneys'
lives have ANY basis in reality). ;')
Oracle is being represented by the same group that represented SCO, right? So we
can expect more of this kind of last minute, super-dooper, emergency requests
and sooper-hush-hush, secret, redacted, under seal filings?
Some law school could probably build an entire course outline on studying just
the tactics (or is the legal term shenanigans?) of this one law firm. I wonder
if I could test out on that and get some college credit here? All these years on
Groklaw must be worth some kind of college credit. I've learned soooo much!
Things like make sure I hire a litigator and not just any Joe lawyer, if I get
sued.
[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Wednesday, September 14 2011 @ 01:13 PM EDT |
There are some odd things about copyright law.
As far as I know typefaces cannot be copyrighted, although there is undeniable
creativity there.
Recipes also cannot be copyrighted, although commentary on them can be. Clearly
inventing a new dish requires creativity.
Oracle seems to be equating the design and creation of a new language with the
specification for it, the API. I'm sure there is a logical fallacy at work
somewhere in there.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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- Creativity - Authored by: PJ on Wednesday, September 14 2011 @ 01:14 PM EDT
- Creativity - Authored by: Anonymous on Wednesday, September 14 2011 @ 01:35 PM EDT
- Creativity - Authored by: darrellb on Wednesday, September 14 2011 @ 01:43 PM EDT
- Copyright a recipe? - Authored by: Anonymous on Wednesday, September 14 2011 @ 01:48 PM EDT
- Creativity - typefaces and fonts - Authored by: Wol on Wednesday, September 14 2011 @ 01:30 PM EDT
- Typefaces - Authored by: complex_number on Wednesday, September 14 2011 @ 01:30 PM EDT
- Please, no - Authored by: Anonymous on Wednesday, September 14 2011 @ 05:55 PM EDT
- Creativity - Authored by: tknarr on Wednesday, September 14 2011 @ 01:39 PM EDT
- The Answer's in Doc 420 - Authored by: Anonymous on Wednesday, September 14 2011 @ 06:13 PM EDT
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Authored by: SilverWave on Wednesday, September 14 2011 @ 05:57 PM EDT |
Google snatches up 1,023 IBM patents to shore
up Android defenses --- RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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Authored by: SilverWave on Wednesday, September 14 2011 @ 06:13 PM EDT |
Threat of settlements may have spurred
Google, Moto deal --- RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 15 2011 @ 01:44 AM EDT |
From the article
Dr. Astrachan further acknowledged the skill
writing good APIs requires:
[REDACTED]
I'm more than a
little puzzled as to why the requirements for writing goos API's is redacted.
Surely there can't be any commercial or trace secrets in that list? Likewise, I
can't see people's names being in that list.
Can anyone shed any light on why
this would be redacted?
[ Reply to This | # ]
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- Trade Secret? n/t - Authored by: Anonymous on Thursday, September 15 2011 @ 03:52 AM EDT
- Trade Secret? - Authored by: Anonymous on Thursday, September 15 2011 @ 03:47 PM EDT
- Possibly earlier? - Authored by: Anonymous on Thursday, September 15 2011 @ 04:27 PM EDT
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