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.

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.

Filed Under: apis, cafc, copyright, deference, fair use, federal circuit, juries
Companies: google, oracle

Led Zeppelin Wins Copyright Case Over Stairway To Heaven

from the copyright-law-is-random dept

Back in April, we talked about the fact that the lawsuit against Led Zeppelin's Robert Plant and Jimmy Page for copyright infringement over "Stairway to Heaven" was moving forward to a jury trail, and how ridiculous it was. As we noted, the song was written in 1970, and it's a bit crazy to argue after all these decades that there's infringement. But, more importantly, the similarities between Stairway and the Spirit song "Taurus" were just a few common notes that were predated by many artists, including Bach's Bouree in E Minor. Still, as we'd seen with the Blurred Lines case, when copyright cases go to juries over song similarities, they often turn out wacky. The intricacies of copyright law are tossed out the window and often "hey, these sound similar" seems to win out.

So it's fairly surprising, honestly, that the jury unanimously sided with Led Zeppelin in this case, saying that while the copyright on Taurus was valid and they believed that Plant and Page had likely heard the song (the two bands toured together, even though Jimmy Page testified that he didn't believe he'd ever heard "Taurus"), there was not substantial similarity between the two songs.

Again, this is pretty surprising, because if you take an unsophisticated audience and just play the clips of the two tracks next to each other, it's not hard to hear them and say "sure, those are kinda similar." About the best explanation I've seen for why the jury decided this way in this case, was that the jury just liked Page and Plant more than the plaintiff -- Michael Skidmore -- who was the "trustee" of the estate of Randy Wolfe, the deceased musician who wrote Taurus. But, when copyright decisions are being made based on who's more likable, that doesn't sound like a particularly functional copyright system.

Filed Under: copyright, jimmy page, juries, led zeppelin, randy wolfe, robert plant, stairway to heaven, taurus

Surprise: MPAA Told It Can't Use Terms 'Piracy,' 'Theft' Or 'Stealing' During Hotfile Trial

from the a-bit-of-good-news dept

I knew that Hotfile had been pushing for this, but I'm somewhat happily surprised to see Judge Kathleen Williams of the US district court in Southern Florida grant Hotfile's motion to bar the MPAA from using "pejorative terms" in its copyright infringement case against the company. Among the words that the movie studios cannot use in describing Hotfile's activity: "piracy," "theft" and "stealing." We've been pointing out for many years how the industry has been using these kinds of misleading terms to influence pretty much everyone to their side, even though the terms are not even remotely accurate. Hotfile had reasonably argued that such terms could negatively influence the jury:

In the present case, there is no evidence that the Defendants (or Hotfile’s founders) are ‘pirates’ or ‘thieves,’ nor is there evidence that they were ‘stealing’ or engaged in ‘piracy’ or ‘theft.’ Even if the Defendants had been found to have directly infringed on the Plaintiffs’ copyrights, such derogatory terms would add nothing to the Plaintiffs’ case, but would serve to improperly inflame the jury.

The MPAA tried to argue that these were commonly used, but apparently the judge realized that using these misleading words really would be unfair. Hopefully other courts follow suit.

Filed Under: copyright, infringement, juries, pejorative, piracy, stealing, theft
Companies: hotfile, mpaa

Samsung/Apple Jury Foreman's Explanation For Verdict Shows He Doesn't Understand Prior Art

from the uh-oh dept

We had already noted what appeared to be serious problems with the way the jury decided the verdict in the Apple/Samsung case -- including ignoring prior art, awarding damages on patents not infringed, and an admission of choosing punitive damages, despite instructions that clearly bar such an action. And it seems to only be getting worse. Groklaw points out that Velvin Hogan, the controversial jury foreman, went onto Bloomberg TV to defend himself, but only served to make things worse, by more or less admitting to not understanding how prior art works.

As was discussed in the previous post, the jury initially got hung up on the question of prior art on the first patent (7,469,381 -- better known as the "bounceback patent" -- covering how when you scroll and hit the edge of a "page" the screen "bounces back.") However, in this interview, Hogan explains the "aha!" moment he had that led him to suggest to the jury that the prior art doesn't apply:

The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there.

You can see him say this in the video below, around the 3 minute mark: Basically, he's admitting that he doesn't understand how prior art works. The fact that the software wouldn't run on the same processor is meaningless. In fact, as Groklaw notes, the jury instructions (which Hogan again insists the jury read) note that to find prior art, you just have to show that the invention has already been done or even explained somewhere else. That's got nothing to do with whether or not it can run on the same processor.

Once again, we learn why it's silly to have juries determining patent cases.

Filed Under: juries, patents, prior art, velvin hogan
Companies: apple, samsung

Tweeting Juror Leads To Retrial For Guy Convicted Of Murder

from the but-why? dept

We've discussed in the past how tweeting jurors represent a new sort of challenge for courts, who haven't quite figured out what to make of the practice. However, the Arkansas Supreme Court recently overturned a murder conviction and ordered a new trial, because one of the jurors was tweeting occasionally during the case. As in the past, I tend to think this is a pretty big overreaction. From the tweets quoted, it does not appear he actually discussed any specifics of the case at hand, but rather some rather general thoughts:

Mr Franco tweeted: "Choices to be made. Hearts to be broken... We each define the great line."

Other tweets sent included: "The coffee here sucks" and "Court. Day 5. here we go again".

I fail to see how those should lead to the end result being suspect in any way. It doesn't appear he discussed the case at all, but merely shared some of his general thoughts. It appears the court would prefer that he pretend he not even have those thoughts at all. How does that possibly make sense? Denying someone from mentioning what they're thinking doesn't stop them from thinking what they're thinking.

Filed Under: alabama, juries, murder, twitter

California Wants To Put Jurors In Jail For Tweeting About Trial

from the overkill dept

We've seen a few stories over the years about jurors tweeting or otherwise discussing trials via social media. Obviously, the courts don't like that, as they usually have bans on discussing cases publicly while they're ongoing. However, in a culture of sharing all sorts of things going on in one's life, it's difficult for some people to shut off. And, to be clear, I'm not entirely sure why it's so bad to talk about a case, in general. I can understand specific instances, based on what you're talking about, but an overall ban just seems unreasonable and unworkable. However, as the courts and governments deal with this issue, we're going to see more overreactions like the following.

California has now passed a law that will allow it to put people in jail for tweeting about a case as a juror. As that link explains, courts already have broad powers to penalize jurors who disobey court rules, including "improper" conduct or "interfering" with a trial. Thus, as Eric Johnson notes:

The current law seems to cover everything of substance. The only thing the new provision does that I can see is make it a jailable offense to use the internet in such a way that is neither improper nor interfering. I guess I don’t understand why we would want to jail jurors under such circumstances.

It seems like a typical grandstanding situation, where a politician feels the need to "do something" about an issue that's been reported on in the press, without realizing nothing needs to be done.

Filed Under: california, juries, twitter

Does An Impartial Jury Mean An Ignorant Jury? Can Barry Bonds Get An 'Impartial' Jury?

from the knowledge-is-good dept

One of the most controversial subjects that we've discussed on this site is the question of whether or not juries should be barred from doing additional research on the cases they're reviewing. This is one issue that really gets people upset with me, including many who normally agree with me. I'll admit that I'm not completely convinced that letting juries do their own research is sensible, and understand the basic issues with rules of evidence, but there's a nagging voice in the back of my head that keeps asking what exactly is wrong with a more informed jury? Apparently, I'm not alone in questioning this. Christopher D. Dize points us to an article he's written (which mentions our previous article on limits on Barry Bonds' jury), which explores the question of whether or not these kinds of bans on research really make sense.

He points out the reality of the situation. As Bonds' lawyers fight to keep certain evidence out of the case, the details of that evidence is widely available to anyone on the internet, and many potential jurors might see it. One way to deal with it might be to ban all such jurors, but in high profile cases, this becomes more and more difficult. From there, Dize points out that this view of a jury that can't do any research isn't quite as historical as some believe:

High-profile cases such as USA v. Bonds highlight the impact that Internet and social media are having on the ability to get an impartial jury and a fair trial. However, as Caren Myers Morrison has pointed out in her article, "Jury 2.0," forthcoming in the Hastings Law Review, the idea of "impartiality" does not necessarily require an ignorant or passive jury.

Professor Morrison, who teaches law at Georgia State University, points out that in the Nineteenth Century, the meaning of an impartial jury was more open to debate. To say a juror was "impartial" simply meant that he or she had no manifest conflicts of interest, i.e. the juror was not family, friend, or enemy of the parties. And it was not uncommon for jurors to have personal knowledge of the events and people involved.

As this country moved into the Twentieth Century, the idea that jurors should be ignorant of the facts and parties became solidified. As a result, today's jurors are dismissed with regularity for simply having familiarity or acquaintance with a defendant.

With Bonds' widespread popularity, the publicity of his case, and the swift ease of online research, all this begs the question: Can Bonds get an "impartial" jury, especially in San Francisco where Bonds played for 14 years, breaking numerous records and garnering worldwide fame? Or does the jury system need to bend back in time to give the home run hitter his day in court?

Again, I recognize the potential downsides here. People can be misled. They can find information that isn't accurate, and there may be no one to tell the other side of the story. That's a serious issue. But does keeping a jury ignorant outside of two specific sources really present the best solution? Is there some third (or fourth) alternative, that gives the jury more leeway in seeking out information in a more supervised manner that allows the attorneys for either side to also present their arguments over the evidence, rather than just letting them present the evidence? Perhaps it comes down to: what do we want the jury system to do? Do we want it to help adjudicate the truth of the situation, or simply weigh two competing arguments? Something tells me that having them responsible for seeking out the truth could be more effective.

Filed Under: barry bonds, impartial, juries

The First Rule Of Being A Juror For Barry Bonds' Perjury Case Is You Don't Talk About Being A Juror For Barry Bonds' Perjury Case

from the jurors-club dept

Jeff sends over the news that Barry Bonds' lawyer is asking the court to tell jurors involved in Bonds' perjury case, that they should not use communications technology to mention the case to anyone, and that the following instructions should be read to the jury before the case begins and at the end of each day:

"you must not communicate with anyone about the case by any other means, direct or indirect, such as: a writing, the telephone, e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, any internet search engine or any other form of electronic communication for any purpose whatsoever."

This is not quite as bad as the headline at the linked article suggests, where they claim that Bonds' lawyers want jurors to stay off the internet. It appears they're free to use the internet, so long as they don't mention the case. Of course, you're already limited in what you can talk about concerning any case you're on, so it's not clear that this request is really all that extreme. However, it is interesting to see how lawyers are becoming increasingly more specific about how they want jurors to be instructed when it comes to using communications technologies during the course of a case.

Filed Under: barry bonds, juries

Can A Judge Force A Juror To Reveal Facebook Account Info?

from the we-may-soon-find-out dept

And here we go with yet another case about courts struggling with the idea that jurors use social networking tools. In the latest in a long line of such cases, a juror in a case about a gang beating, named Arturo Ramirez, has been ordered to turn over information from his Facebook account, after another juror claimed that Ramirez had broken the rules by mentioning the case on Facebook. Apparently Ramirez's big violation was to wonder if the case could "get any more BORING" on his Facebook account. Rather than just respond to that issue, the defense attorneys in the case sent a subpoena to Facebook asking for Ramirez' full account info. Facebook noted that giving out such info would clearly violate both the Stored Communications Act and the Electronic Communications Privacy Act. The judge, in attempting to get around those laws, has ordered Ramirez to sign a consent form allowing Facebook to hand over the info... or face contempt of court charges.

While I agree that it wasn't the smartest move by Ramirez to mention the case on Facebook, the reaction seems to go way beyond reasonable. In particular, having the judge basically force Ramirez to give up the rights granted by the SCA and ECPA seems to go way over the line. Ramirez is planing to appeal the order, as it clearly seems to go against the basic structure of those two laws to then force someone to give up those protections or risk a contempt of court claim. And, honestly, given that Facebook communications tend to be the sort of thing you say to your friends, when you step back and think about it, imagine if Ramirez had simply made the same point to a friend one day during the case. Would the court really go to such extreme lengths in such a scenario?

Filed Under: ecpa, juries, privacy, social networks, stored communications act
Companies: facebook

Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues

from the apparently-we-don't-want-fully-informed-juries dept

Radley Balko points us to the news that a judge in Florida has banned the distribution of certain flyers at or around the courthouse. Apparently, there's a group called the Fully Informed Jury Association (FIJA) -- which seems like a pretty good idea. Why wouldn't we want fully informed juries? The group has been handing out pamphlets to jurors which basically say that the jurors should vote with their conscience and not feel pressured into voting against what they believe. Seems like pretty standard stuff.

However, it looks like Chief Judge Belvin Perry doesn't like fully informed juries. He signed an order barring the group from handing out their pamphlets... raising all sorts of free speech and prior restraint questions. In order to try to get around the prior restraint question, Judge Perry stated that this "restriction upon expressive conduct" was "necessary to serve the state's compelling interest in protecting the integrity of the jury system." The judge clearly knows he's treading in free speech/prior restraint waters in specifically noting that it's a restriction of expression and calling out the "compelling interest" line. Of course, you can't just say there's a compelling interest. There actually has to be one, and I'm struggling to see how better informing a juror of their rights as a juror could possibly be about manipulating a jury or would harm the integrity of the jury system. Wouldn't you think a juror who better understand what being a juror means increases the integrity of the system?

It's almost as if the judge is admitting that they want uninformed jurors who don't know their own rights.

It sounds like the group is fighting back, so hopefully the ban will soon be reversed and the judge will be given a refresher course in the First Amendment and free speech.

Filed Under: courts, first amendment, free speech, juries, prior restraint
Companies: fully informed jury association