Judge Alsup knows how to play a bluff

http://www.economist.com/blogs/babbage/2012/06/oracle-v-google

by grellas • 14 years ago

214 58 14 years ago

mahmud• 14 years ago

Oracle lost face on this one. They now look like reactionaries who tried to sue progress and lost. This paragraph stands out "Is Oracle moving away from competitive product marketing to a more defensive Intellectual Property litigation strategy?"

Welcome to Deadendville, Oracle: population you & other patent trolls!

jakejake• 14 years ago

It would be fantastic to see this judge presiding over a lot more patent issue cases.

option_greek• 14 years ago

I think Oracle got into this fight partly due to Ellison's friendship with SJ. It's surprising how many lawsuits can come out of one man's hatred for Android.

jopt• 14 years ago

Hold your surprise until your guesses are backed by evidence.

egillie• 14 years ago

I've heard people I hold in high regard mention this too. Of course, it's hard to prove, but so is anything of this nature.

sudhirj• 14 years ago

Judge William Haskell Alsup, I salute you. I'm outside the US and have been steadily losing faith in it's legal system because of the rampant patent trolling and idiotic laws, but it is very refreshing to see someone take the time and effort to finely hone a decision like this. Very nicely done.

ars2• 14 years ago

BTW, I hope you are aware of the massive selection bias you have going on. You are only reading about the decisions you disagree with because the forums you choose to read are those you agree with. (And because the decisions no one agrees with will be featured on the news.)

If you read all - or at least a random sampling, of decisions you will reach a different conclusion.

wtallis• 14 years ago

Selection bias isn't really applicable when the problem is that software patents exist at all.

inopinatus• 14 years ago

Whilst I concur that all of us exhibit both selection and confirmation biases, it's unfair to the parent poster to assert that his/her dissatisfaction is primarily due to these factors.

For example, I too am an outside observer who quite deliberately reads both the left-wing and the right-wing media. My perspective chimes with the parent, viz. that the US constitutional model of law, starting with the novelty of "a list of things you're allowed to do" (vs most nations' "blank slate + a list of things you must do or must not do"), and combined with a tripartite governance model that separates the executive from the legislature (thus allowing both to duck accountabilities) has been an interesting experiment but ultimately produced such a colossal proliferation of impenetrable ancillary legislation, powers, regulations and case law - far beyond the ability of any citizen to grasp - that it can only, at this point, be deemed a failure and not to be repeated, or at any rate not on this scale.

And so I breathe a huge sigh of relief that the legal jurisdiction under which I operate is one that can be approached and engaged with individually, even absent a small personal army of motion-waving attorneys; one in which the selection of judge is not, as it has been here, such a part of the lottery of outcome.

ScottBurson• 14 years ago

His middle name is Haskell? Oh, that's surreal :-)

warmwaffles• 14 years ago

thought I was the only one who noticed that.

lemme just cite wikipedia: http://en.wikipedia.org/wiki/William_Haskell_Alsup

slavak• 14 years ago

As someone who has had some contact - both second- and first-hand - with the court system (albeit not the American one), this is extremely heartening.

Most people can't imagine how ass-backwards some judges' decisions can be. It's refreshing to see one that not only makes sense, but is also thoroughly researched and backed up by a good knowledge of the facts and intricacies of the subject at hand.

Unfortunately, it's likely this is due to the high profile of the case and the deep pockets of the litigants. Don't expect the judge in your case to be nearly as invested and well-versed.

ars2• 14 years ago

I like to read judges decisions occasionally and I've always been impressed - I haven't always agreed, but they are always well written and well reasoned.

Maybe it's a bit of selection bias in my choice of decisions to read (typically the cases that are on the news), but I suspect most judges are extremely smart and very good at what they do.

If you (plural you) don't read them, you should - they are not written for lawyers (aside from a tiny bit of jargon that is easy to lookup - usually Latin words). Typically before deciding any law the Judge will include an introduction with an explanation of how the law is structured, and it's clear that that's not written for lawyers (who would be expected to know this already), but for the general public.

dchest• 14 years ago

Suggested reading -- Joanne Siegel et al v. Time Warner Inc

http://law.justia.com/cases/federal/district-courts/californ...

Includes the history of Superman creation (with pictures) and some discussion of his superpowers.

bane• 14 years ago

I've found that the higher up the food chain, the better the reading -- SCOTUS decisions are often a joy to read.

That being said, I've read some truly dismal thinking in some judgments. I recall one where the judge essentially said "this doesn't violate any laws or the constitution, but I don't like it, that's why I ruled against it".

Natsu7• 14 years ago

> Unfortunately, it's likely this is due to the high profile of the case and the deep pockets of the litigants.

The litigants don't get to choose which judge hears their case. There are rules to exclude judges who have a stake in the matter (recusal), but they don't just get to pick who they want to hear the case.

yardie• 14 years ago

He was referring to the level of the court system. The higher up you go the better the judges get. The quality of municipal court judges is vastly different to Federal Circuit court. The 9th is just 1-2 stops below the US Supreme court.

Also, they don't get to chose the judge but with enough money you do get to chose the district. Flying lawyers out to court costs money (they do bill you for the flight and flight time) and has been used in the past by some plaintiffs to extract a settlement.

dscrd• 14 years ago

I was bit surprised that Oracle didn't call for mistrial because the Judge knew stuff.

sjwright• 14 years ago

Imagine if judge selection worked like jury selection. Yikes.

lonnyk• 14 years ago

Correct me if I'm wrong, but doesn't a jury have to be agreed upon by both prosecution and defense? I assume that at least one side would be fighting for people who knew something.

angry-hacker• 14 years ago

I wonder what is the judge Aslup's knowledge or programming languages etc?

jmgao• 14 years ago

His middle name is Haskell. (Really!)

greyfade2• 14 years ago

He apparently knows several languages (including Perl, I've heard), and he learned Java specifically to try this case.

sausagefeet• 14 years ago

Could someone re-explain this to me? I just don't get it. I don't know anything about law. Especially:

> Were his ultimate ruling that the general "structure, sequence and organisation" is not protectable to be reversed on appeal, the higher court might simply reinstate his jury's verdict. This gives the appeals court more alternatives as it need not worry about an expensive retrial.

andrewcooke• 14 years ago

the jury decided on some details assuming the law supports oracle. the judge decided the law did not support oracle. but if the judge's decision is reversed then the jury decision can be used without needing to go through the process of a whole new jury trial.

greyfade2• 14 years ago

There's still the matter of whether it was Fair Use, which the Jury was hung on.

pwg• 14 years ago

Had he told the jury "API's are not copyrightable", and the jury found Google guilty, and then he ruled later "API's are really not copyrightable" then he would have set aside the jury verdict of guilty.

Then, had his ruling of "API's are not copyrightable" been reversed, the jury guilty verdict would have been reinstated.

Going this route, the jury's decision is independent of the finding of "can API's be protected by copyright" because the jury found no guilt while assuming that API's could be protected. So even if the judge's decision of "no copyright on API's" is reversed, the jury's verdict of not-guilty remains, because it was made by assuming "API's can be protected by copyright".

bmuon• 14 years ago

The previous article on the subject explains what "structure, sequence and organisation" means for copyright, patents and APIs: http://news.ycombinator.com/item?id=4050490 (and the first comment by grellas is also highly recommended)

its_so_on• 14 years ago

(potentially more interesting edit below, set off with ----)

1. general explanation

Guys, the key to understanding this article (in which the point was not mentioned very explicitly) is that in at least the American court system, jurors find facts, and the judge finds law. These two things are distinct. ("what happened"; "what is the legal implication.") Technically, Jurors don't need to know any law at all. Practically though, they need to know enough to decide how finely to slice the fact.

in other words, on some abstract level the jury doesn't even have to know what the law says; they only have to decide what happened. Practically though, for example in first, second, etc, degree murders, it's not enough information for the judge to hear "Yes, he killed the guy." The judge really needs to know the facts more precisely, i.e. compared with some definitions/demarcations the judge provides. (And which the jury frequently asks for clarifications on, so that they can report on their findings of what happened in terms of those definitions.)

This is also why sentencing is always done by the judge, not the jury: only the judge knows the law, the jury can only find facts.

it's also why "jury nulification" is kind of a hack of the system. If the jury doesn't like a marijuana ban, they can "nullify" by finding that despite the video tape of the guy smoking a joint, which is now in front of them, they find that the guy did not smoke pot. This supposedly circumvents a judge's ability to apply the law for it, since the jury says they find it didn't happen (wasn't proven.)

This is likewise kind of a "hack" in that the judge, knowing that the law is his to interpret, just told the jury the implication up-front, similarly as if they had heard that sentence after their verdict. But then he did not pass that sentence (actually make that interpretation of law).

This would be like telling the jury that if a bystander knowingly let you die (you're watching the case from the heavens - the bystander is on trial), that's manslaughter by negligence. The jury finds that the bystander was, in fact, guilty of negligent manslaughter for the reason of failing to rescue when he could and was in no danger.

Then the judge finds (which was his plan all along) that in the US there is 0 duty to rescue in this situation and the bystander is completely innocent of any negligence for not rescuing you, which he had no duty to do.

This way, according to the article, if another court disagrees with this interpretation of law, they already have the jury's findings and can just overturn the judge's interpretation.

----------------------------------

EDIT.

2. an interesting theory of the past few weeks' news.

I just thought of an interesting additional theory. The article says that both the Prosecution and Defense were OK with this approach. (Presumably, the prosecution, because that's what they were suing for in the first place, and the defense, because it thought the law was on its side and could appeal on those grounds if the judge actually sentenced per his request for the jury to assume). Now you remember how the jury was hung on whether it was 'fair use'? Given that neither defense nor prosecution tried to argue with the law, perhaps one or more members of the jury simply saw that this was a case of using copyright like a patent is normally to be used for - even though the judge told them to assume that it was copyright infringement if it happened in this case - and thought that it was therefore unfair and inappropriate. Even the defense didn't argue the point that it was not actually copyright infringement (we just found out why) so maybe one or more members of the jury said to themselves: Well, we are told to assume that this - mimicking work-alike functionality - is copyright infringement. But unless there's a patent, we just don't think it is! So, it HAS to be fair use.

If there were even a couple of jurors who were perplexed why the defense wasn't arguing that the work-alike functionality constituted copyright infringement, they might have been the ones who helped hang on whether this is fair use. The jury was perplexed, because they were given a definition of the law that is wrong!

It does show the danger of a judge taking this approach. (e.g. in my example in point 1, if a single juror knows that there's no duty to rescue in general, then maybe the jury will get hung on whether the 'negligent manslaughter' was in fact 'in self defense.' This is an ABSURD thing to actually get hung up on - but they are doing so (maybe, according to this theory of mine) because of the wrong reading of the law that they were given.)

So, with this interpretation, the past few weeks of this case are: "Jury finds bystander guilty of homocide for not helping! Jury still hung on whether homicide was in self-defense. (later..i.e. today.) Judge reveals that he told the jury to assume, in making their finding, that failing to rescue when this would pose no risk to the rescuer constituted negligent homocide, and that both the defense (sure of the actual law or grounds for appeal if this is the actual finding of law by the judge in the end) and prosecution went along with this.

If this theory is correct, it gives a VERY different reading to the way the jury acted and found. In fact, it paints them as downright reasonable, within the constraints of their (manipulative, hypothetical) instructions.

sakopov• 14 years ago

This is like asking a chef if your propusion engine is built correctly. An absolutely terrible state of the court system. Instead of glorifying this judge, i want to know how the judicial system is ready to tackle other cases from the same realm because any technical person would have thrown this case out in seconds.

adamtj• 14 years ago

Your "technical person" is incompetent in the same way in which you are accusing the courts: He or she knows nothing about the law. No legal person would throw out a case as you suggest.

This is what courts do. They hear cases. They don't make rash assumptions and jump to conclusions. If you were falsely accused of a crime and "everybody knew" you did it, you would want the same from the courts.

What the courts do not do is to gain expertise in every field in which they may have to rule. It may take a lifetime of practice to gain the expertise to be able to make the arguments to defend a position, but understanding those arguments is comparatively easy. The risk is that the court may only have half the story. It may not have the experience to see that a valid argument is trumped by some other concern, and rule incorrectly. This is the advantage of the adversarial system that we have. If one side makes a weak argument, the other can counter it. The legal experts of the court need only decide if those arguments are valid in the context of current law, and the jury decides if the assumptions are true.

grellas2• 14 years ago

I had clerked for a federal judge who applied "old school" philosophy to the handling of civil disputes - that is, let the parties have maximum scope within the rules of civil procedure by which to fashion and try their cases, with the judge doing minimal supervision as needed just to keep them in bounds. This minimalist approach led inevitably to very lax supervision of the case but this was not regarded as something bad but rather as the method of case handling for which the U.S. court system had been designed. The broad idea was that, under the U.S. constitutional system, every party presumptively had the right to bring every conceivable claim affecting his interests before a jury of his peers for final determination. Of course, this philosophy fit within the nature of the jury system itself, by which parties could only elect a jury trial in cases "triable by jury" as prescribed by the U.S. Constitution and the implementing rules of civil procedure. If claims were triable by jury, and if a party elected to have them tried by a jury, this right had to be preserved at all costs and it was regarded as inappropriate for a judge to be too aggressive in attempting to screen and bounce claims at any part of the pretrial stage or to use too much authority at the trial itself to limit the scope of assertable claims. Judges from this school of thought typically had been trial lawyers themselves, often having honed their skills in a context (e.g., personal injury) where legal technicalities mattered less than the big issue of how a jury might find the facts at a trial.

The minimalist philosophy had worked well in a day when claims were few and limited in a typical civil case. In the modern commercial era, though, and especially in the federal courts, this approach of letting the parties run wild leads to many problems of case management and opens up the door to abuse for aggressive litigants who throw power and money around freely as a means of enlarging the settlement value of their cases. Thus, the judge for whom I had clerked (who, by the way, was a superb and much respected judge in his own right, having been many years ago the Chief Judge of the Northern District of California, the same district in which Judge Alsup sits), would have some 400 active civil cases on average at any given time while those who applied active case management were typically down in the low 200's. Parties would have huge delays in having a trial date assigned to their cases because so many others were in line before them. And trials themselves could run for weeks and months just because no check was placed on the lawyers throwing out everything they could to see what might stick in front of a jury.

Judge Alsup, in contrast, applied very strong case management skills to this case: (1) he forced Oracle to pick its strongest patent claims and to forego the rest (in theory, he had no power to do this but he effectively managed it by telling Oracle that, if it did not trim its claims, he just might exercise his powers to stay the entire litigation until the whole lot of them got full patent reexaminations before the USPTO); (2) he gave the parties very strict time limits within which to put on their evidence; (3) he set out strict rules for discovery and then enforced them; (4) he was ultra-aggressive in knocking out wild expert claims by which Oracle had sought to inflate its alleged damages into the billions and put Oracle's expert through multiple cycles that amounted to telling him, "OK, now come back with something credible before I will let it into evidence in my court;" and (5) he brilliantly handled the tricky copyright issue relating to APIs and "structure, sequence, and organization," which, being a very knotty legal issue in light of Ninth Circuit precedents, he allowed to go before the jury on the assumption that it could find infringement on the issue even as he reserved the ultimate authority to decide the issue regardless of what the jury concluded (the article here calls this a "feint" but, in reality, it is just smart case management in giving the court of appeals the full range of options on what to do with the case if it ultimately reversed his ruling).

The case management aspects are the "under the hood" part of the case. Very few observers besides the insiders focus on it. It was, however, vital to the ultimate outcome. Just imagine if Oracle would have gone to trial with dozens of claims and if they all got tossed to the jury for ultimate determination, including the ultimate decision on whether APIs were copyrightable. That methodology - which could respectably have been applied to this case by a federal judge - would have given Oracle an open ticket to abuse and game the system and would significantly have enlarged its prospects for success in sticking a gun into the side of Google. The biggest downside, though, for the rest of us would have been in the resulting uncertainty on how such claims would be resolved in the future. Imagine how the developer community would fare in a lottery system where every API-related claim imaginable were tossed to a jury with prospects for a crap-shoot outcome. If that is a horrific thought, then you have one more thing for which to thank Judge Alsup. Smart case management, a smart judge, and a superb outcome. Be thankful this landed the way it did. It could easily have been very different.

Androsynth2• 14 years ago

It sounds like Judge Alsup handled the case well, but is 'very strong case management' scalable to the the a large number of judges across the entire country?

If our system was designed for minimalist handling of civil disputes, can it adequately handle the complexities of modern copyright law given the resources (human and otherwise) it has available?

Natsu7• 14 years ago

Active case management like this ultimately reduces the court's workload. Letting the lawyers run free permits them to bury the courts in paperwork.

Natsu7• 14 years ago

I had the impression that, with recent budget cuts and the like, such active case management was becoming a matter of necessity, lest the courts be completely overwhelmed. In your view, is that correct?

That is, of course, not to take anything away from Judge Alsup, who did a commendable job with this case. I've never seen a judge take so many expert witnesses to task like that, especially the on in Oracle's motion for JMOL.

grellas2• 14 years ago

In the federal courts, I think it is more a matter of philosophy than of economic necessity. Unlike state courts, federal courts use the single-judge calendar system, meaning that any given case is assigned to one judge for all purposes from beginning to end. This means that a judge who is proactive in managing cases will reap direct rewards in keeping his docket under control. In addition, federal judges sit for life and cannot be removed except for grounds justifying impeachment. They thus has enormous power and some run their courts almost like little fiefdoms (or at least it seems that way!). When they want to twist arms, the parties have little choice but to comply, even as they might buck and kick in the process. In any case, when high-powered lawyers and their litigant clients come into federal court and try to muscle the court and the other parties, the judge has a basic choice: do I let this go on unchecked or do I set a tone by which I control things. Eventually, the judges realized that they had to be aggressive in setting the right tone and this in time became the norm with many of them. It definitely ties in with the idea of not letting the courts be completely overwhelmed but it is not budget-driven as such but rather is motivated by necessities of reining in cases (and lawyers and parties) that would otherwise run wild to the detriment of the judge and his docket. Today, federal judges will vary on how much they use such power to curtail abuse and to promote aggressive management but the trend is very much, as you say, toward proactive management.

anamax3• 14 years ago

> I had the impression that, with recent budget cuts and the like

What budget cuts? I'm not seeing any in http://www.gpo.gov/fdsys/pkg/BUDGET-2011-APP/pdf/BUDGET-2011... - do you have a source that shows cuts?

mathattack• 14 years ago

I must say that I am very impressed with this judge, even without knowing the details of each party's issues.

The8thDwarf• 14 years ago

Alsup has just showed us how to liberate any digital file we want. Here's an API: if the input to f is <some binary string which is a .mov file of Disney's "Snow white and the seven dwarfs"> then return the date and time. Otherwise, the return value is undefined. Free Willy!

DigitalSea• 14 years ago

Judge Alsup is probably only a handful of judges in the world who have the knowledge to preside over cases like these. It's sad to think the nunmber of cases like this that have resulted in the wrong outcome all because the judge and or jury didn't fully understand the case enough to make a logical decision.

The ending line in the article made my day: "As a programmer, Judge Alsup clearly knows how important it is to avoid bugs."

ekm2• 14 years ago

I will probably get down voted for small mindedness,but i cant help noticing that in addition to having "Haskell" as a middle name,he has a B.S in Mathematics.

Judge Alsup knows how to play a bluff

Related Stories