Oracle's 'Gamechanger' Evidence Really Just Evidence Of Oracle Lawyers Failing To Read

It's the case that will never die. As you may recall, over the summer, Oracle asked Judge William Alsup for yet another trial over Google's copying of some Java APIs in Android, claiming that Google had failed to disclose that Android apps would work on Chromebooks. At a hearing last month it seemed very possible that Alsup would order another trial, but (thankfully!) he has now denied Oracle's request for the same exact reason he denied their first request for another trial at the beginning of the summer. He literally says:

Oracle's new Rule 50 motion is denied for the same reasons as its old one.

First, Alsup defends his earlier decision to limit the trial to Android's use in smartphones and tablets. It's a long explanation, but a sensible one. In short, because of the (ridiculous) Federal Circuit ruling rejecting Alsup's (much earlier) determination that APIs were not subject to copyright (which was the correct ruling, but was overturned because the Federal Circuit is clueless), the case was sent back to the lower court, years after the original verdict that said Google's use was infringing. This trial was over just the fair use question, but was built off of that earlier verdict. Google argued that adding in a bunch of new devices that used Android (as Oracle wanted) that didn't exist when the first trial happened wouldn't make sense, as they introduced new questions and issues that weren't raised in the first trial -- and Alsup agreed. Alsup also notes that Oracle is "free topursue its claims for infringement arising from Google's implementations of Android in devicesother than smartphones and tablets in a separate proceeding and trial." In other words, no matter the outcome of this case, Oracle may still file another lawsuit over Android in the future. So, in the end, Alsup notes that Oracle wanted to have the court accept the first jury verdict, but then expand it way beyond its scope:

In its new trial motion, Oracle now argues that it was error to limit the device uses inplay to smartphones and tablets. We should have had one mega-trial on all uses, it urges. This,however, ignores the fact that Oracle's earlier win on infringement in 2010 - the same win itwished to take as a given without relitigation - concerned only smartphones and tablets. And,it ignores the obvious - one use might be a fair use but another use might not, and the fourstatutory factors are to be applied on a use-by-use basis. Significantly, the language of Section107(4) of Title 17 of the United States Code directs us to consider "the effect of the use uponthe potential market for or value of the copyrighted work." Oracle cites no authoritywhatsoever for the proposition that all uses must stand or fall together under the fair use test ofSection 107.

Alsup also scolds Oracle, in noting that while it wanted to lump in all sorts of post-2010 actions by Google, it successfully blocked the introduction of post-2010 evidence that would have helped Google:

Oracle itself, it must be said, successfully excluded at least one post-2010 developmentthat would have helped Google. Specifically, a pretrial ruling obtained by Oracle excludedevidence tendered by Google with respect to Android Nougat. Significantly, this evidencewould have shown that (back in 2008) all of the accused APIs could simply have been takenfrom OpenJDK, Sun's own open-source version of Java, apparently in full compliance with theopen-source license. Put differently, Sun itself had given away Java (including all of the linesof code in suit) in 2008 via its open-source OpenJDK. In 2015, Google used OpenJDK toreimplement the Java APIs for the latest release of Android, which it called Nougat. Googlewished to use this evidence under the fourth fair use factor to show that its infringement did nomore market harm than Sun itself had already invited via its own OpenJDK release. Despite itsimportance, the Court excluded this development because it had not been presented by Googlein time for effective rebuttal by Oracle. This exclusion was a major win for Oracle in the weeksleading up to trial.

Then on to the main show: Oracle's claim that Google hid the plans to make Android apps work on Chrome OS. Google had revealed to Oracle its "App Runtime for Chrome" (ARC) setup, and it was discussed by Oracle's experts, but at Google I/O, Google revealed new plans for apps to run in Chrome OS that were not using ARC, but rather a brand new setup, which Google internally referred to as ARC++. Oracle argued that Google only revealed to them ARC, but not ARC++ and that was super relevant to the fair use argument, because it showed that Android was replacing more than just the mobile device market for Java. But, here's Oracle's big problem: Google had actually revealed to Oracle the plans for ARC++. It appears that Oracle's lawyers just missed that fact. Ouch.

Throughout the briefing and argument on this motion, Oracle left the distinctimpression - more accurately distinct misimpression - that Google had stonewalled and hadcompletely concealed the ARC++ project. This was an unfair argument.

In fact, Google timely produced at least nine documents discussing the goals andtechnical details of ARC++ and did so back in 2015, at least five months before trial. Counselfor Oracle now acknowledges their legal team never reviewed those documents until thesupplemental briefing on this motion. The Court is disappointed thatOracle fostered this impression that no discovery had been timely provided on the ARC++project eventually announced on May 19.

Rule 26(e) requires a party to supplement discovery responses in a timely manner only"if the additional or corrective information has not otherwise been made known to the otherparties during the discovery process or in writing" (or if otherwise ordered by the Court). Thiscreates a "'duty to supplement,' not a right." Luke v. Fam. Care and Urgent Med. Clinics, 323Fed. Appx. 496, 500 (9th Cir. 2009). Nevertheless, Google had no duty to supplementresponses with new information that had already been disclosed in the ARC++ documentsalready produced.

Oracle should have known that items produced in response to its own documentrequests potentially contained information that supplemented Google's earlier writtendiscovery responses. Oracle's failure to review the ARC++ documents is its own fault.

That's a pretty big error on the part of Oracle's lawyers. For all the bombast that they went after Google with in court last month, to then have to admit that they were the ones who had failed to actually read the material that Google supplied them is... really, really bad. If I'm Oracle, I'm really pissed off, because these lawyers from Orrick are not cheap and they just wasted a ton of Oracle money because of their own mistakes.

Judge Alsup also notes that none of this really matters anyway because (once again) this trial was limited to the situation back in 2010, when Android was just in use on phones and tablets, and the desktop/laptop issue was left out of the case (in part because of Oracle's own desire not to relitigate the first part of the trial).

Oracle's purported "game changer" would not have changed anything at all, becausethe scope of the "game" was smartphones and tablets, postponing new and later uses to a latercontest. ARC++ was not yet on trial. Thus, any failure to produce such evidence could nothave substantially interfered with Oracle's preparation for our trial. On the contrary, it clearlyand convincingly would have been inconsequential.

There are a few other attempts from Oracle that Alsup rejects as well -- including some stuff about one particular witness having a single line of an email redacted. There was also an attempt to present some evidence suggesting that Sun wasn't as happy about Google's actions as Google had implied during its testimony, but it involved (yet again) some bizarre behavior by Oracle's lawyers, withholding documents from Google until the very last minute. And, again, Judge Alsup notes that the documents don't really support Oracle's contention anyway. There were a few more arguments in there as well, which aren't as important, but you can read them all in the full ruling from Alsup if you are a glutton for such punishment.

Either way, it's almost certain that Oracle will appeal certain aspects of all of this, and in some sense, this is all just procedural posturing anyway. And, on top of that, Oracle may file a new case against Google for non-tablet/phone uses anyway. In short: this case is nowhere near over, but if you get anything out of these documents, it's that Oracle, the company, should be pretty upset at the lawyers it hired for making a big deal out of something that only served to show that they didn't do their job.

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