Can Oracle, Google or "Fair Use" Ever Get a Fair Trial?
Yesterday a judge gave a jury their deliberation instructions on what is promised to be one of the most important copyright decisions of the decade. There’s just one problem, the jury probably did not understand a thing he said.
In case you haven’t heard, Oracle the makers of Java Script (the underlying software used in millions of websites) is suing Google for copyright infringement because Google used portions of Java API in their Android operating system. Google’s defense is “fair use,” in other words, “Yeah, we used it– so what, it’s free.”
I won’t attempt to argue the merits of the case here because something far broader strikes me as problematic. What is at issue in this decision is the standard of “fair use” which goes to the heart of many, many, copyright disputes. That standard is now about to be decided not by legal scholars, artists or tech experts, but by a California Jury. Here’s an example of what 7 average citizens heard from the Judge:
“Among other things, the registered copyrights generally include the compilable code and documentation for the Java API packages. The main issues you must decide concern these two general types of material contained therein, namely “compilable code” and “documentation.”
Myself, I have a 12 year background in intellectual property and copyright disputes and an IQ approaching 150, yet the instructions given by Judge William Alsup (reprinted below) telling the Jury the issues at hand had me bleary-eyed.
So, if I can’t get them, how in the world are a handful of people, not busy enough to get out of jury duty ever supposed to?
Beyond the cynical aspects of this question let’s consider the actual trial procedure that creates this problem– voir dire: when lawyers interview prospective jurors (who would never lie to get on a big case) in order to determine if they’re qualified to judge the issues, or, more to the point, be objective.
Can you imagine an attorney in voir dire asking a prospective juror if he understands what “API documentation” is? If the prospective jurors says ”yes” then Oracle will want him but Google will object, claiming the juror is biased and would not consider the evidence in favor of their own personal experience.
If the same juror was to answer ”no” then Google will certainly want them because for Google to make its case they have to make copyright seem arcane and copyright owners overreaching. Conversely, Oracle will advocate because the juror will be able to compartmentalize the often counter-intuitive shards that enshrine intellectual property law.
With lawyers this good on both sides you can expect extended preemptory challenges and all kinds of fancy legal maneuvers, but the real question is: did either side get their dream jury and can this case, and indeed “fair use” ever get a fair trial?
And unfortunately, regardless of what side of the copyright or copy-wrong argument you reside, this will be a tortured day for ”fair use” and the world of intellectual property.
Read the words of Judge Alsup and you tell me, is “fair use” getting a fair trial?
You can read the entire Jury instructions here. Below is an abstract.
Judge William Alsup: I will now turn to the claims in this case. Oracle claims Google has infringed its copyrights in two registered works, namely, “Java 2 StandardEdition, Version 1.4” (TX 464) and “Java 2 Standard Edition, Version 5.0” (TX475), and the applications leading to those registrations appear at TX 3529 and3530. Among other things, the registered copyrights generally include the compilable code and documentation for the Java API packages. The main issues you must decide concern these two general types of material contained therein, namely “compilable code” and “documentation.” As used in these instructions and the Special Verdict Form, the term API “compilable code” refers to method names and class names, declarations, definitions, parameters, organization, and implementation (whether in the form of source code or object code) implementing the various API functions. The “compilable code” does not include the English-language comments you have heard about. Even though such comments are embedded in the software program, these English-language comments do not get compiled and are not used by the computer to perform API functions. Instead, the English-language comments are part of what I will call the API “documentation,” sometimes referred to as the “specification,” a term that encompasses all of the English-language comments. The term “API documentation” includes all content— including English-language comments as well as method names and class names, declarations, definitions, parameters, and organization — in the reference document for programmers. Again, please remember that although these English-language comments appear in the software program listing, they can be extracted for handy reference in the guides made available to programmers. So, I will be referring to the “API compilable code” and to the “API documentation.
Rock on Willy and good luck to the Jurors.