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| Oracle v. Google - Day 3 Filings ~mw |
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Thursday, April 19 2012 @ 09:10 AM EDT
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Since the trial is now underway the filings in the case are far more sparse, but that doesn't mean they are unimportant. Yesterday, Judge Alsup ruled on Oracle's motion to deem certain issues as undisputed. (938 [PDF; Text]) While Judge Alsup denied two of the requests, he is allowing several important ones.
For example:
- that "[t]he Java APIs as a whole meet the low threshold for originality required by the Constitution.”
- that “Sun released the specifications for Sun’s Java platform, including Sun’s Java
virtual machine, under a free-of-charge license that allowed developers to create
“clean room” implementations of Sun’s Java specifications. If those
implementations demonstrate compatibility with the Java specification, then Sun
would provide a license for any of its intellectual property needed to practice the
specification, including patent rights and copyrights. The only way to
demonstrate compatibility with the Java specification is by meeting all of the
requirements of Sun’s Technology Compatibility Kit (“TCK”) for a particular
edition of Sun’s Java. Importantly, however, TCKs were only available from
Sun, initially were not available as open source, were provided solely at Sun’s discretion, and included several restrictions, such as additional licensing terms
and fees. In essence, although developers were free to develop a competing Java
virtual machine, they could not openly obtain an important component needed to
freely benefit from Sun’s purported open-sourcing of Java.”
- that “[a]lthough Sun eventually offered to open source the TCK for Java SE, Sun
included field of use restrictions that limited the circumstances under which
Apache Harmony users could use the software that the Apache Software
Foundation created, such as preventing the TCK from being executed on mobile
devices.”
Note, however, while these admissions will be read by the Court to the jury once, and only once, the jury will also be instructed that the admissions are not conclusive. In any case, these instructions make Google's task just a little tougher, although not impossible.
In a separate notice filing Judge Alsup reminds the parties of their obligation to put exhibits into evidence before introducing deposition testimony that refers to those exhibits. (940 [PDF; Text]) At least once or twice on Wednesday Oracle's counsel utilized video of depositions in which the deponent was referring to a document but the document had not be introduced into evidence at trial. This led to some confusion as to what document the deponent was referring.
Finally, the Oracle witness list is again updated. (941 [PDF]) New witnesses on the list are:
John Bornstein
Rafael Carmargo
John Mitchell
Andy Rubin
So among the next ten witnesses on the list are both Tim Lindholm and Andy Rubin. That doesn't mean that they will be among the next ten called to the witness box, but they are likely to be called within the next few days.
Note: Because of an urgent matter that our in-courtroom reporter had to attend to following yesterday's session we will be a little late posting our report on yesterday's courtroom activity.
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Docket
04/18/2012 - 938 - ORDER GRANTING IN PART ORACLE'S MOTION TO DEEM ISSUES UNDISPUTED AND DENYING RELIEF REGARDING STATEMENT TO JURY by Hon. William Alsup granting in part and denying in part 908 Motion.(whalc1, COURT STAFF) (Filed on 4/18/2012) (Entered: 04/18/2012)
04/18/2012 - 939 - Minute Entry: Jury Trial held on 4/18/2012 before William Alsup (Date Filed: 4/18/2012). Witnesses called. Further Jury Trial 4/19/2012 7:30 AM. (Court Reporter Kathy Sullivan; Debra Pas.) (dt, COURT STAFF) (Date Filed: 4/18/2012) (Entered: 04/18/2012)
04/18/2012 - 940 - NOTICE RE DEPOSITION DESIGNATIONS. Signed by Judge William Alsup on 4/18/2012. (whasec, COURT STAFF) (Filed on 4/18/2012) (Entered: 04/18/2012)
04/18/2012 - 941 - Witness List by Oracle America, Inc. Rolling List of Next Ten Witnesses. (Muino, Daniel) (Filed on 4/18/2012) (Entered: 04/18/2012)
04/18/2012 – 942 - Transcript of Proceedings held on 4/16/12, before Judge William H. Alsup. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415-794-6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 5/9/2012. Redacted Transcript Deadline set for 5/21/2012. Release of Transcript Restriction set for 7/17/2012. (Sullivan, Katherine) (Filed on 4/18/2012) (Entered: 04/18/2012)
04/18/2012 – 943 - Transcript of Proceedings held on 4/17/12, before Judge William H. Alsup. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415-794-6659Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 5/9/2012. Redacted Transcript Deadline set for 5/21/2012. Release of Transcript Restriction set for 7/17/2012. (Sullivan, Katherine) (Filed on 4/18/2012) (Entered: 04/18/2012)
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Documents
938
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 GRANTING IN PART
ORACLE’S MOTION TO DEEM
ISSUES UNDISPUTED AND
DENYING RELIEF REGARDING
STATEMENT TO JURY
Oracle moves to deem issues undisputed (Dkt. No. 908) and for relief regarding
statement to jury (Dkt. No. 909). Google opposes. After reviewing the parties’ briefs, the
following will be told to the jury:
1) “The Java APIs as a whole meet the low threshold for originality required by the
Constitution.” This instruction reflects Google’s admission in its March 23 brief
(Dkt. No. 823 at 9) and April 13 brief (Dkt. No. 914).
2) “Sun released the specifications for Sun’s Java platform, including Sun’s Java
virtual machine, under a free-of-charge license that allowed developers to create
“clean room” implementations of Sun’s Java specifications. If those
implementations demonstrate compatibility with the Java specification, then Sun
would provide a license for any of its intellectual property needed to practice the
specification, including patent rights and copyrights. The only way to
demonstrate compatibility with the Java specification is by meeting all of the
requirements of Sun’s Technology Compatibility Kit (“TCK”) for a particular
edition of Sun’s Java. Importantly, however, TCKs were only available from
Sun, initially were not available as open source, were provided solely at Sun’s
discretion, and included several restrictions, such as additional licensing terms
and fees. In essence, although developers were free to develop a competing Java
virtual machine, they could not openly obtain an important component needed to
freely benefit from Sun’s purported open-sourcing of Java.” This instruction
reflects Google’s admission in its Answer to Oracle’s Amended Complaint (Dkt.
No. 51) and its April 13 brief. The Court will read this statement in its entirety.
Oracle’s requested excerpts standing alone and out of context would be
confusing.
3) “Although Sun eventually offered to open source the TCK for Java SE, Sun
included field of use restrictions that limited the circumstances under which
Apache Harmony users could use the software that the Apache Software
Foundation created, such as preventing the TCK from being executed on mobile
devices.” This instruction reflects Google’s admission in its Answer and its April
13 brief.
Oracle’s second request to deem undisputed, that “Google has admitted that the Java
programming language is distinct from the Java APIs and class libraries,” is DENIED. Google
did not make such an unequivocal admission in its pleadings.
With respect to Dkt. No. 896, Oracle’s motion for modification is DENIED. The point
about the structure, sequence, and organization will be appropriately addressed in other
instructions.
The Court will read each statement to the jury at the time Oracle wishes but only once.
The Court will advice the jury that the admission has been made, and that they may consider the
admission as evidence along with all other evidence at trial. The jury will be told that the
admissions are not conclusive. These same will apply to the prior order on Google’s request to
deem undisputed (Dkt. No. 896).
IT IS SO ORDERED.
Dated: April 18, 2012.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
2
940
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
NOTICE RE DEPOSITION
DESIGNATIONS
In connection with deposition designations, be mindful that no deposition testimony
should be offered on an exhibit unless the exhibit is already in evidence. On the designations of
Mr. Rizvi, for example, it is impossible for the judge to know what email is being discussed and
whether it will already be in evidence by the time the deposition is read or played to the jury.
The marginal notes indicating the rulings attempt to say this. In the future, please let the judge
know whether the exhibit will come into evidence. Nothing further need be done on the
designations of Messrs. Gupta and Rizvi. The rulings will be available on Thursday at 7:30 a.m.
Dated: April 18, 2012.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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| Authored by: feldegast on Thursday, April 19 2012 @ 09:15 AM EDT |
So they can be fixed
---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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| Authored by: feldegast on Thursday, April 19 2012 @ 09:16 AM EDT |
Please make links clickable
---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 19 2012 @ 09:17 AM EDT |
What is meant by that? Method signatures plus all comments in the
specification/javadoc as published? Or also including the implementation source
code?
What is then the unprotected part of the Java API not as a whole?
[ Reply to This | # ]
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| Authored by: feldegast on Thursday, April 19 2012 @ 09:17 AM EDT |
Please make links clickable
---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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| Authored by: feldegast on Thursday, April 19 2012 @ 09:18 AM EDT |
Thank you for your support
---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 19 2012 @ 09:29 AM EDT |
Sun’s Technology Compatibility Kit (“TCK”) - is the hook
Oracle could use to kill GPL version.
As, then they make changes to the "tree trunk" code, re-issue
the TCK to match those changes, (and at the same time, make
changes to the license).
Of course, keeping the other TCK and GPL stuff alive (dual
license is born). Then, let the GPL branch, die.
[ Reply to This | # ]
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| Authored by: ChrisP on Thursday, April 19 2012 @ 09:47 AM EDT |
Admission 3 ends "such as preventing the TCK from being executed on mobile
devices."
This looks wrong to me. Surely it is an implementation of JavaSE that is
licensed with and has passed the TCK test that is prevented from running on a
mobile device, not the TCK itself. Who got this wrong, Judge, Google or Oracle?
---
Gravity sucks, supernovae blow![ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 19 2012 @ 09:52 AM EDT |
that "[t]he Java APIs as a whole meet the low threshold for
originality required by the Constitution.”
That is a very ambiguous ruling. It suggests the API's are
copyrightable as a blanket statement, however there is no way
this can be so. That ruling certainly needs some
clarification.
Can Google file dissent on those rulings?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 19 2012 @ 10:08 AM EDT |
How does the TCK admission hurt Google?
AFAIK they don't want, and have never requested the TCK, and
their implementation is neither compatible with Java nor
called Java.
The TCK would resoundingly fail on Android for countless
reasons, so it would make no sense to apply for it.
Is there a suggestion that cleanroom implementations
*require* to apply for the TCK, as that doesn't seem to be
implied by the statement [and seems like it would require
some new kind of IP law to enforce, as it's not a copyright
(no real code was copied), patent (they aren't claiming
patents on the APIs as a whole), or trade secret issue (it's
published.)))]
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 19 2012 @ 12:24 PM EDT |
IANAL and am having trouble with the concept of the Good Judge ruling that
certain statements are to be read to the jury as "undisputed facts",
over the objection of one of the parties to the trial.
In particular, Google specifically objected to Oracle's paste-up of various
statements concerning the TCK, yet the paste-up is to be read to the jury as an
"undisputed fact".
How does that square with the right of each side to present their own case as
they see fit?[ Reply to This | # ]
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| Authored by: jvillain on Thursday, April 19 2012 @ 12:41 PM EDT |
| This is interesting A couple of tweets from Dan Levin. Not often you get to
see what is on the Jury's mind during a trial. Damn good question from the
jury.
Judge Alsup has fascinating practice- allows jurors to submit
written questions during trial, lawyers can tailor ? to witnesses to
answer
One juror question: seems sun aware that
Apache had fragmented java. What communications did Sun have to revoke
license?
Link
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 19 2012 @ 02:55 PM EDT |
No, of course I don't want them to win. But . . .
Lots of talk that if the Supreme Court invalidates Obamacare, something better,
like simply extending Medicare to everyone, would be the result. In short, it
would open the way to a better solution.
Would an Oracle victory do the same thing? Maybe it would finally get us off
Java to an alternative, which, if it doesn't exist now, soon would.
So, time to open a discussion of how to get rid of Java? Would an Oracle victory
speed things up?
[ Reply to This | # ]
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| Authored by: sproggit on Thursday, April 19 2012 @ 04:50 PM EDT |
There are a couple of points that interest me with respect to the charge against
the 9 lines of code that Oracle have accused Google of literally copying into
Android from JAVA.
I'd be interested in the prevailing views:-
1. Whilst I can see that the law would hold Google responsible for code released
under the corporate name, and whilst I can see that Google has a responsibility
to ensure that all their developers abide by the rules and don't other people's
source code, there remains the chance that it's going to happen.
Google have conceded this point. However, if they have taken reasonable steps to
remove the code from Android (and I believe it's purged from the latest version)
and if they have undertaken to discipline the errant programmer, how does the
law view Google's culpability? If Google could show that they took reasonable
precautions to prevent such an act, then acted promptly to correct once
notified, can Oracle press this point? I might be willing to concede that Google
the corporation is guilty of not having a clearer set of company policies, but
is that a crime?
If Google's response to Oracle had been, "OK, we take your point. We have
removed the offending code. We will publicly apologise for this error and we
agree it was wrong. We have disciplined the programmer concerned." then
what else could they reasonably be expected to do?
2. Although I haven't seen or heard terms discussed, I cannot believe that Sun
do not have a "NDA clause" [non-disclosure-agreement], or gagging
clause, in their contracts of employment, such that even after terminating
employment with Sun, a former employee is legally prohibited from sharing any
intellectual property or other insights with a future employer.
Apart from the obvious answer of "because they have billions of dollars to
grab for", why are Oracle taking issue with Google and not with their
former employee? On that basis I am particularly interested to see if Oracle can
show Google management had knowledge of the 9 lines of code. I think BSF/Oracle
are just conflating a couple of points, like the Lindholm email and the code, to
try and suggest that this means that there is widespread disregard for IP at
Google. Is anyone reading this any differently?
3. When it comes to the jury instructions, how should the judge direct them? How
much lattitude does the Court have in terms of requiring that the jury find
evidence of willful infringement as opposed to inadvertent or isolated copying
that took place with no knowledge of management?
[ I have raised this example numerous times here on Groklaw, but a few years ago
there was a scare for users of the Konqueror web browser, when it became
apparent that it did not properly check to ensure that SSL certificates were
properly signed. Funny old thing, Microsoft's Internet Explorer had the exact
same problem at the exact same time. No-one was ever able to prove that
Microsoft had lifted the SSL code direct from Konqueror, but it was quite the
coincidence. There was never an opportunity to examine the IE source code for
signs of infringement, but it's easy to see how much harder this is to prove
when the suspect company only provides closed source software... [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 19 2012 @ 05:34 PM EDT |
“Although Sun eventually offered to open source the TCK for Java SE,
Sun included field of use restrictions that limited the circumstances under
which Apache Harmony users could use the software that the Apache Software
Foundation created, such as preventing the TCK from being executed on mobile
devices.” This instruction reflects Google’s admission in its Answer and its
April 13 brief.
That is so misleading. One would have to use
the TCK in order for its field of use restrictions to apply. Surely Google must
object to this! [ Reply to This | # ]
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| Authored by: jbb on Thursday, April 19 2012 @ 05:37 PM EDT |
| From what I can gather Google has been holding their own while Oracle has been
up to bat. As in SCO v. Novell the jury is presented with two mutually
exclusive stories. I would say it is at least a tie right now. One problem
Oracle faces is the facts and testimony which show Sun was happy with Android.
I think it will be difficult for Oracle to prevail if they can't impeach that
testimony.
AFAIK, Google has not yet had a chance to present their side. After
their opening statement they've only been able to cross examine Oracle's
witnesses. It would be great news for Google if they were tied at this stage,
but, who knows, maybe Oracle is saving their best for last.
I have no
doubt that Google will tell a very compelling story when they get up to bat.
The big question will be how much traction Oracle gets in their cross
examinations. If they have a series of Perry Mason moments they might be able
to trip up a few witnesses but I don't think they will be able to derail
Google's story that APIs are not copyrightable and even if they were, Sun/Oracle
gave them permission to use the APIs years ago via the statements of their CEO.
That two prong attack is going to be hard for Oracle to deflect.
Oracle's story requires that the jury believe Google was stupid and
careless; colossally stupid and careless. Google's story only requires that
the jury believe Oracle got greedy after buying Sun and after seeing the Android
phone take off. From a purely monetary perspective, it could make sense for
Oracle to launch this suit because the potential payoff (if all goes well) could
be enormous.
It's clear that Oracle now very much regrets Sun's policy
(and their public statements of that policy) regarding the use of the Java APIs
by others but that doesn't mean they are allowed to go back in time and change
history. If companies were allowed to change what they said in order to match
their current desires then we would no longer be able to do business with one
another.
Those who know the Tao do not speak.
Those who
speak do not know.
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Our job is to remind us that there are more contexts than the one that we’re in
— the one that we think is reality.
-- Alan Kay [ Reply to This | # ]
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