The Federal Circuit's Judicial Hypocrisy In Overturning Jury Concerning Java API Fair Use Question
from the so-ridiculous dept
Yesterday we went through the details of the truly awful appeals court decision by the Court of Appeals for the Federal Circuit (CAFC) concerning whether or not Google copying a few pieces of the Java API for Android was fair use. As we mentioned, there were a whole bunch of oddities both in the procedural history of the case, but especially in the CAFC's decision here that has left a ton of legal experts scratching their heads. What becomes quite clear is that the CAFC panel decided long ago that Google infringed, and it's not going to let the law or even consistency get in its way. As you'll recall, the same three panel set of judges (Judges Kathleen O'Malley, Jay Plager, and Richard Taranto) made a terrible, nonsensical, technically ignorant ruling four years ago, saying that APIs are covered by copyright and then sent the case back to the lower court to hold a new trial on fair use.
As we noted in yesterday's post, what's really incredible is that part of the reasoning in the CAFC opinion from four years ago is "this is an issue that a jury should hear to determine if it's fair use." And the ruling yesterday said "no reasonable jury could possibly find fair use" (after the jury here did find fair use). Which raises the question of why the fuck did the CAFC send the case back in the first place? To waste everyone's time? To pad the wages of the very very expensive lawyers employed by Oracle and Google? To waste Judge Alsup's time?
Carolyn Homer, a lawyer who recently left a "biglaw" firm where she did copyright and free speech law for a public interest free speech law job, put together a fantastic chart comparing the 2014 CAFC ruling in this case and the 2018 ruling, highlighting where they appear to disagree with one another.
Let's play "Spot the Judicial Hypocrisy!"
I seriously think the CAFC panel is comprised of such IP maximalists they were convinced no jury would ever find fair use -- but since a tech-savvy ND Cal jury was smarter than that, now they're clawing back the law. pic.twitter.com/EJgqtYVUcO
— Carolyn (@CAIRolyn_) March 27, 2018
In case you can't see that, I'll recreate it for you in text, because it highlights just how far these three judges bent over backwards to get the result they wanted, even if it involved totally reversing themselves from four years ago.
CAFC in Oracle v. Google, 2014
Fair use is a mixed question of law and fact.
CAFC in Oracle v. Google, 2018
The Supreme Court has said that fair use is a mixed question of law and fact... [but] whether hte use at issue is ultimately a fair one is something we [r]eview de novo.... Despite this case law, all aspects of Google's fair use defense went ot the jury with neither party arguing it should not.
CAFC in Oracle v. Google, 2014
On balance, we find that due respect for the limit of our appellate function requires that we remand the fair use question for a new trial.
CAFC in Oracle v. Google, 2018
The jury returned a verdict in favor of Google on its fair use defense.... All jury findings relating to fair use ... must, under governing Supreme Court and Ninth Circuit case law, be viewed as advisory only.
So this is the key. Juries are supposed to resolve questions of fact. Judges are supposed to resolve questions of law. The line between the two can get blurry, but here CAFC is playing a tricky two step game. In 2014, it argued that because fair use has a component of "fact" in it, it's an issue for the jury to decide, and thus made it clear that a new trial was necessary on fair use because of "the limit of our appellate function" (to make determinations on matters of fact). But here, once the jury came back with a result that the same judges disliked, it miraculously started arguing that, well, really, we can review the jury's decision because we can and because juries are "advisory only." That alone is a fairly striking claim, given that the courts are supposed to be pretty careful about only overturning juries on matters of law, not facts.
This clearly is the same three judge panel completely moving the goalposts from their earlier decision in the same case because they don't like the outcome.
CAFC in Oracle v. Google, 2014
We cannot say that there are no material facts in dispute on the question of whether Google's use is "transformative," even under a correct reading of the law.
CAFC in Oracle v. Google, 2018
Google's use of the API packages is not transformative as a matter of law...
Got that? In 2014 the court is saying, this is a factual issue that a jury needs to decide. In 2018, after its upset with what the jury decided, suddenly it's a matter of law that CAFC can miraculously decide and overturn the jury.
CAFC in Oracle v. Google, 2014
[R]easonable jurors might find that [the functional aspects of an API] are relevant to Google's fair use defense under the second and third factors of the inquiry.
CAFC in Oracle v. Google, 2018
Although it is clear that the 37 API packages at issue involved some level of creativity--and no reasonable jury could disagree with that conclusion--reasonable jurors could have concluded that functional considerations were both substantial and important.... The Ninth Circuit has recognized, however, that this second factor "typically has not been terribly significant in the overall fair use balancing."
Another fun one. In 2014, the court pointed out that perhaps the 2nd factor (the nature of the work -- in this case, the fact that it's an API that is functional rather than expressive) could weigh heavily on the fair use analysis. In 2018 when the jury did exactly what the CAFC suggested it might, but which the CAFC obviously hoped it would not, it suddenly poo-poos the idea that the 2nd factor really matters at all.
CAFC in Oracle v. Google, 2014
[T]h[e]se core packages ... may be necessary for anyone to copy if they are to write programs in the Java language. And, it may be that others of the packages were similarly essential components of any Java language-based program. So far, that type of filtration analysis has not occurred.
CAFC in Oracle v. Google, 2018
Even assuming the jury accepted Google's argument that it copied only a small portion of Java, no reasonable jury could conclude that what was copied was qualitatively insignificant, particularly when the material copied was important to the creation of the Android platform.
Once again, four years ago, these same three judges, looking at the same issue said that the question of what was necessary or essential was one for the jury to decide. Four years later, when the jury decided exactly that question in a result CAFC doesn't like, suddenly it changes its tune to say that "no reasonable jury" could have ruled the way that CAFC itself said a reasonable jury could rule the last time it looked at this case.
CAFC in Oracle v. Google, 2014
Because there are material facts in dispute on this [market impact] factor as well, remand is necessary...
CAFC in Oracle v. Google, 2018
The district court concluded that he jury "could reasonably have found that use of the declaring lines of code (including their SSO) in Android caused no harm to the market for the copyrighted works, which were for desktop and laptop computers." ... [But we find] no reasonable jury could have concluded that there was no market harm to Oracle from Google's copying.
This one is even more blatant. Four years ago this very same panel, looking at this very same case, said a jury had to decide whether the market impact of the copying was fair use or not. Then, four years later, after the jury did just what CAFC said it must (but where it came out with a result that CAFC doesn't like) suddenly, CAFC insists that no reasonable jury could have possibly ruled this way.
CAFC in Oracle v. Google, 2014
On remand, the district court should revisit and revise its jury instructions on fair use consistent with this opinion so as to provide the jury with a clear and appropriate picture of the fair use defense.
CAFC in Oracle v. Google, 2018
[W]e conclude that Google's use of the 37 Java API packages was not fair use as a matter of law. We therefore reverse the district court's decisions denying Oracle's motions for JMOL and remand for a trial on damages.
Again, in 2014, the same three judge panel was insistent that the jury and only the jury could decide what counted as fair use. And now, suddenly, magically, after the jury just did that, CAFC has decided it's not an issue of fact after all, and CAFC can just snap its fingers so that it's a matter of law, and overrule the jury.
What... the... fuck? Appeals courts sometimes will make dumb rulings, but it's quite astounding at just how much these three judges have telegraphed their position here when you compare the 2014 ruling with the 2018 ruling-- they wouldn't touch the fair use analysis four years ago, insisting that a jury had to do it -- and then just stomped all over the jury claiming that no reasonable jury could rule the way they said a reasonable jury had to rule just four years ago.
The same three judges. The same case.
If various appeals fail and this case does go back for a jury trial on damages, and the jury comes back with a super low damages amount like $1, that four years from now we'll be discussing a CAFC ruling about how "no reasonable jury" could do such a thing?
Hopefully, either CAFC will agree to rehear this case en banc and the other CAFC judges will realize just how bad this ruling is, or perhaps the Supreme Court will actually be persuaded to listen this time. The rumor mill has said that the Supreme Court was interested last time around, but after the Solicitor General told them not to (which, we're told, was hotly disputed within the White House) it passed. But nearly all of the players are different this time around. Of course, Oracle and its CEO have a very close relationship with the current administration, so it's possible that could create pressure on the Solicitor General to support Oracle's position.
Either way, the comparison between these two rulings isn't just judicial hypocrisy, it's judicial corruption. That's not in the sense that anyone was paid off (and, seriously, stop suggesting that -- it's not what's happening). It's corruption in the form of a panel of judges clearly wanting a particular result, and willing to do things they're not supposed to do to get that result.
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Filed Under: apis, cafc, copyright, deference, fair use, federal circuit, juries
Companies: google, oracle
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the word "reasonable"
We have more than 2 centuries of evidence that reasonable is different for every fucking judge deciding cases.
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Re: the word "reasonable"
In this case, the appeals court has not done right by the judicial word "reasonable" in finding that the jury's findings were "unreasonable" when that is a VERY HIGH bar indeed, and they didn't do anything but just wave their hands and say "it is so". One must actually support an argument of unreasonableness, which I didn't see any of.
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Re: Re: the word "reasonable"
Reasonable means "any excuse I can dream up to abuse another human I do not like" when the law is applied. It needs to end and it needs to be detailed why it had to end.
There is always reasonable doubt, because evidence can be manufactured and witnesses can and do lie.
Just watch youtube, unbelievable shit happens multiple times a day! The world is not such a strange place after all and it does not take a lot of effort to trick people into what is reasonable or what is not reasonable and that is just tricking people into implicating themselves in a crime they did not commit during testing trials where they are told before hand we are going to trick you into implicating yourself in a crime and to try to avoid it!
"If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged."
~Cardinal Richelieu (contested attribution)
Reasonable, is NOT reasonable!
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Re: Re: Re: the word "reasonable"
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Re: Re: Re: Re: the word "reasonable"
"no reasonable jury could conclude that X" = "I disagree with X"
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Re: the word "reasonable"
should be out fucking outlawed..."
Sounds reasonable to me.
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It upends the entire judicial system. Jury nullification exists only because of the way the Jury system works: the Jury's finding of fact, guilty or not guilty, is considered largely inviolable. The state can not go back and declare guilt after a finding of innocence by a jury. If this decision is allowed to stand, we would in fact lose any value in Jury trials. This is literally why Jury trials exist - to prevent this kind of state action.
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Re:
The value American society places on jury trials is expressed in juror daily pay.
It isn't much.
Not much at all.
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when you say it like that, there IS no value.
the purpose of the Jury system is for the citizens to directly BLOCK tyranny. But no one treats it like that.
Jury Nullification is the VERY reason that we have juries composed by the citizens and in my opinion the ONLY reason to have a jury to begin with. Otherwise any judge can say someone technically broke any law.
So repeat after me, the Juries job is NOT just determining guilt or innocence. It is to also determine if the State has merit in bringing this cases against said person and if the law being used to prosecute is justified in its application!
People are stupid, they are ignorant, and just like fucking lightening... travel the path of least resistance. And the path of least resistance is to walk in, say "guilty" and get back to their fucking lives!
No matter what you do, your number one enemy is yourself. And for citizens... themselves! We are the nation but we act as though the country is owned by the fucking politicians and members of law enforcement!!!
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Re: Re: Re: Re:
That said "...if the state has merit in bringing this cases (sic) against said person and if the law being used to prosecute is justified in its application" is explictly the goal in determining Guilt or Innocence, they weigh the merits (evidence), and determine if the evidence proves that the elements of a specific crime have been fulfilled.
I believe there is a place for jury nullification, and my statements are inclusive of it.
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Re: Re: Re:
“Jurors, Defense Lawyers Receive Rate Increases; Funding Approved for 3 Courthouses”, March 28, 2018
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Re:
Even in a criminal case, an appeals court can (and courts do) overturn guilty verdicts. What they can't do is overturn a jury verdict of not-guilty. That's the context in which you generally talk about jury-nullification, because in that case--a not-guilty verdict in a criminal trial--the government is extremely limited in what it can do to overturn the jury, if it can do anything at all.
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Re: Re:
But they still try.
They seem to like the idea of double jeopardy if it does not affect them.
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The root cause of that is the use of intellectual property, as a descriptor, rather than patent, copyright, or trademark as a limited grant of privilege.
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(b) generally believing that intellectual property rights should be broad and expansive
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I once heard a 9th Circuit Justice state that he knows how he wants a case to come out, and his clerks are basically supposed to figure out the legal rationale to make it happen. That wasn't the first time I'd heard that from a judge, sometimes due to issues of legal philosophy, sometimes due to less high-brow considerations (like a case where the appeals court judge simply personally disliked the trial court judge).
I can't say that's what happened in this particular case, but the general mindset on the Federal Circuit tends to ebb and flow in certain directions, and I think the momentum of whatever the prevailing judicial philosophy is on the court can certainly impact rulings, leading to decisions that seem a bit of a stretch (as here, where even if one disagrees with the jury decision, I think it's a real stretch to conclude no reasonable jury could have come out as they did).
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Supreme Court?
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Re: Supreme Court?
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"It's for a jury to decide."/"It's NOT for a jury to decide."
Would '... Seriously, the hell just happened?' count as a valid 'why'?
CAFC sends the case back by arguing that it's murky enough that only a jury can decide on the issue.
The jury comes out with a verdict that differs from what the CAFC clearly wanted.
CAFC overrules the jury, telling them they got it wrong and in fact insulting every last one of them by claiming multiple times that no reasonable jury would have ruled as they did.
CAFC blatantly attempting to railroad one party into a guilty verdict by refusing anything else seems like a pretty good 'why' to me.
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Re: "It's for a jury to decide."/"It's NOT for a jury to decide."
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You've so worn out this topic that I didn't even HA, HA it.
This from The Register (emphasis added):
Key point from article:
"To sum up, then: Google knew it needed a licence, didn't get one, and tried to bluff it out."
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Re: You've so worn out this topic that I didn't even HA, HA it.
Exactly how was Google supposed to view this most unfortunate future ... Mitt Romney's time machine?
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From Register user "ForthIsNotDead":
"The impact is clear: If you want to make a compatible version of my operating system, and in so doing, take advantage of the money that I have spent in developing it in the first place, marketing it, and generally doing everything I can to make it successful (to the point that it becomes an attractive enough target for you) then get a fucking licence. It's as simple as that." ... "As far as hating Google is concerned, fucking right! They, and Facebook are literally the planets' masters at taking things that other people produce, monetising it, and paying nothing for it. Be that the information you produce as a living human going about your everyday life, or copying every fucking book on the planet, or the millions/billions of copyrighted videos and music on YouTube that they earn from, but the producers earn nothing from."
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Re: From Register user "ForthIsNotDead":
fwiw - Java is not an operating system, although theoretically it could, it is not generally used as such for good reasons.
I thought this story was about APIs.
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You and your precious Google FLATLY WRONG on law yet again!
So, HA, HA, Masnick!
Every area, you / pirates / Googles just refuse to pay creators.
You HATE copyright because your favored grifters get to keep a few less pennies out of the billions of dollars they get for doing almost nothing!
Sheesh. It's not just EVIL, but STUPID, sheerly BAD business.
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You're LYING that overturns jury. 1st trial: GUILTY.
Google clearly fails to meet "fair use" tests by using ELEVEN THOUSAND LINES OF CODE VERBATIM.
Alsup put BIG thumb on scales of justice here.
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Re: You're LYING that overturns jury. 1st trial: GUILTY.
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Re: Re: You're LYING that overturns jury. 1st trial: GUILTY.
Those lines of code are simply the declaration of the modules that Java provides, and every Java program includes a verbatim copy of some them by importing the module (declarations) by name. They are a small fraction the code that makes up a working Java implementation, and are essentially the specification of the interfaces to standard modules, which define the Java Language. There is very little flexibility in how they are written, and a language that does not provide them is not Java.
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Re: Re: Re: You're LYING that overturns jury. 1st trial: GUILTY.
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Re: You're LYING that overturns jury. 1st trial: GUILTY.
The first trial was judged in favor of Google, that means innocent.
On appeal, the CAFC said "no, retry with a jury and decide on the merits of fair use". Alsup had nothing to do with it, CAFC are the ones who said it should be tried narrowly on fair use.
The second trial ALSO was judged in favor of Google, again, that means innocent.
Oracle appealed again and the CAFC said "the judge and jury are all a bunch of idiots, even though we've never programmed and haven't really looked at the evidence ourselves, therefore Oracle wins. Why? Because.".
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APIs are thin
APIs are thin. They are close to being pure lists of facts, rather than creative expressions. They list the functions that exist in certain modules or classes or other collections of software, and numbers and strings used to communicate with those functions. In a sense they document the protocols used for plumbing data around in a program, like a communication standard. They're thin in the sense they are functionally required for talking to software, like a hyperlink or an address. But they are also thin in the sense that many other similar APIs probably exist in competing contemporaneous software products.
Java wasn't created in a vacuum, it was a collection of what its creators considered best practice at the time in the 1990s, and as such drew on practices seen in other similar languages and software. For example, the C and C++ programming languages had the practice of storing mathematical functions in a math module. The APIs for the math module are listed in the C math.h or C++ cmath header files. These contains lists of the functions involved, such as sin, cos, tan, log, etc as well as numerical constants like pi, e, and so on. The math module can be linked in by telling the compiler to do so, for example by adding the -lm flag when using the gcc compiler. Java has a similar arrangement of mathematical functions and constants, using similar names and grouping, but it was written down several years after C and C++ did so.
If there is any copyright in Java's math APIs, who would actually hold that copyright? Why would Oracle hold any copyright on lists of mathematical functions and constants when it's so similar to what other languages like C and C++ had done before? This is one reason APIs are thin: if they have any copyright at all, establishing what it is about them that is worthy of copyright requires analysis of contemporaneous and pre-existing software to see what is unique or different. If it's all so similar to what already existed, it follows that there can't be much that is worthy of a new copyright. Needless to say, requiring such legal analysis is rather useless to a software engineer who just wants to get on with the job.
If there is something new in the way Java listed its API functions, to a large extent that may have been dictated by the design of the language. Java requires things to be listed in classes, where other languages like C and Fortran would not. Java has function overloading and can thus list multiple versions of math functions, such as having a sin(double) function and a sin(float) function which both use the same name but differ on their arguments, whereas C requires a sin(double) function and a differently named sinf(float) function because C requires all functions to have unique names. In this case, it's not that Java has done something creative with its API naming, it's that Java had a technical improvement over C's limitation which allows Java to more closely follow existing mathematical conventions. This improvement (function overloading) is an idea that C++ used in the 1980s and which probably existed earlier. It can't be said to be an invention unique to Java.
I wouldn't say that Java plagiarised the design of APIs or features from other programming languages, because it was and is standard practice in the realm of software engineering to employ ideas that are good no matter where they come from, as long as they produce well engineered products. The idea of collecting similar functions into modules, such as the math module, is an idea that can't be said to be owned by any one language. The fact C was doing it before Java doesn't mean the creators of C own the idea. Ideas can't be owned. Collections of facts, such as listing the functions in the math module, shouldn't be able to be owned either, and especially since such knowledge is a functional requirement needed to allow programs to compile and link with the correct modules in order to operate.
Where there might be "creativity" in Java's APIs, I would argue it is arbitrary. The fact that a Java programmer named a math function divideAndRemainder(BigInteger) is partly dictated by the Java coding standard (which instisted on using mixedCaseNames), partly required because Java lacked the C++ feature of operator overloading which might have allowed mathematical operators to be used instead, partly due to existing terminology, and partly based on the programmer's whim. Is that the "creativity" Oracles is asserting in court requires copyright protection? Or is it the "selection and arrangement" of those mathematical functions, which is very similar to the selection and arrangement in pre-existing software such as C and C++ and also to existing terminology? All of these pre-existing sources should surely count against Oracle.
If, as the CAFC asserts, there is copyright in Java's APIs, this kind of similarity analysis of pre-existing software would be needed to evaluate exactly how thin are Oracle's copyrights. Otherwise, Google could be made to pay damages to Oracle for copyrights Oracle doesn't actually own.
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No hypocrisy
And Google is not such an innocent party. They could have easily paid a modest license fee or deceloped their own APIs. They walked away from negotiations because they thouht the license cost too high. Google was making an efficient infringement decision. If they really believed they could copy freely, they wouldn't have negotiated to begin with.
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It’s strange for there to be a circuit split within a single circuit. It’s even rarer for that split to be without two rulings by the exact same panel of judges.
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