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Judge Alsup knows how to play a bluff

214 points by grellas 14y ago

mahmud 14y 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 14y ago
It would be fantastic to see this judge presiding over a lot more patent issue cases.
option_greek 14y 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 14y ago
  Hold your surprise until your guesses are backed by evidence.
- egillie 14y 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 14y 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.
- ars 14y 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 14y ago
    Selection bias isn't really applicable when the problem is that software patents exist at all.
  - inopinatus 14y 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 14y ago
  His middle name is Haskell? Oh, that's surreal :-)
  - 14y ago
slavak 14y 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.
- ars 14y 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 14y ago
    Suggested reading -- Joanne Siegel et al v. Time Warner Inc http://law.justia.com/cases/federal/district-courts/california/cacdce/2:2004cv08776/166872/174 http://law.justia.com/cases/federal/district-courts/californ... Includes the history of Superman creation (with pictures) and some discussion of his superpowers.
  - bane 14y 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".
dscrd 14y ago
I was bit surprised that Oracle didn't call for mistrial because the Judge knew stuff.
- sjwright 14y ago
  Imagine if judge selection worked like jury selection. Yikes.
  - lonnyk 14y 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.
    - crikli 14y ago
      The jury selection process is called voire dire and IIRC each side can only eliminate, not choose, jurors.
    - Turing_Machine 14y ago
      They don't want people who know stuff on the jury. They want people they think they can manipulate.
      - uxp 14y ago
        Sadly, this is true. Here's Groklaw's report on the jury selection of this case[1]. Note how both sides manage to get rid of anyone that's got any experience with IP, Patents or Programming, including a woman who happens to work for Oracle and a Patent Attorney. They then get into more detailed questioning, including asking if anyone owns a cellphone with internet access. [1] http://www.groklaw.net/articlebasic.php?story=20120416085550303 http://www.groklaw.net/articlebasic.php?story=20120416085550...
        rayiner 14y ago
        It's completely sensical to eliminate a woman who works for Oracle from the jury in a case in which Oracle is a plaintiff. It also makes sense to eliminate the patent attorney. The judge in the case decides the law and explains it to the jury--we don't want a patent attorney incorporating his preconceptions of the law into his judgment. It also makes sense to eliminate people with Android phones (they might root for their side--you know how people get with their fanboyism).
angry-hacker 14y ago
I wonder what is the judge Aslup's knowledge or programming languages etc?
- jmgao 14y ago
  His middle name is Haskell. (Really!)
- greyfade 14y ago
  He apparently knows several languages (including Perl, I've heard), and he learned Java specifically to try this case.
sausagefeet 14y 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 14y 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.
  - greyfade 14y ago
    There's still the matter of whether it was Fair Use, which the Jury was hung on.
- pwg 14y 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 14y 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 http://news.ycombinator.com/item?id=4050490 (and the first comment by grellas is also highly recommended)
its_so_on 14y 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 14y 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 14y 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.
grellas 14y 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.
mathattack 14y ago
I must say that I am very impressed with this judge, even without knowing the details of each party's issues.
The8thDwarf 14y 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 14y 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 14y 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.

214 points by grellas 14y 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 14y ago

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

option_greek 14y 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 14y ago
Hold your surprise until your guesses are backed by evidence.
egillie 14y 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 14y 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.

ars 14y 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 14y ago
  Selection bias isn't really applicable when the problem is that software patents exist at all.
- inopinatus 14y 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 14y ago
His middle name is Haskell? Oh, that's surreal :-)
- 14y ago

slavak 14y 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.

ars 14y 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 14y ago
  Suggested reading -- Joanne Siegel et al v. Time Warner Inc http://law.justia.com/cases/federal/district-courts/california/cacdce/2:2004cv08776/166872/174 http://law.justia.com/cases/federal/district-courts/californ... Includes the history of Superman creation (with pictures) and some discussion of his superpowers.
- bane 14y 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".

dscrd 14y ago

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

sjwright 14y ago
Imagine if judge selection worked like jury selection. Yikes.
- lonnyk 14y 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.
  - crikli 14y ago
    The jury selection process is called voire dire and IIRC each side can only eliminate, not choose, jurors.
  - Turing_Machine 14y ago
    They don't want people who know stuff on the jury. They want people they think they can manipulate.
    - uxp 14y ago
      Sadly, this is true. Here's Groklaw's report on the jury selection of this case[1]. Note how both sides manage to get rid of anyone that's got any experience with IP, Patents or Programming, including a woman who happens to work for Oracle and a Patent Attorney. They then get into more detailed questioning, including asking if anyone owns a cellphone with internet access. [1] http://www.groklaw.net/articlebasic.php?story=20120416085550303 http://www.groklaw.net/articlebasic.php?story=20120416085550...
      - rayiner 14y ago
        It's completely sensical to eliminate a woman who works for Oracle from the jury in a case in which Oracle is a plaintiff. It also makes sense to eliminate the patent attorney. The judge in the case decides the law and explains it to the jury--we don't want a patent attorney incorporating his preconceptions of the law into his judgment. It also makes sense to eliminate people with Android phones (they might root for their side--you know how people get with their fanboyism).

angry-hacker 14y ago

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

jmgao 14y ago
His middle name is Haskell. (Really!)
greyfade 14y ago
He apparently knows several languages (including Perl, I've heard), and he learned Java specifically to try this case.

sausagefeet 14y 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 14y 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.
- greyfade 14y ago
  There's still the matter of whether it was Fair Use, which the Jury was hung on.
pwg 14y 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 14y 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 http://news.ycombinator.com/item?id=4050490 (and the first comment by grellas is also highly recommended)

its_so_on 14y 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 14y 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 14y 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.

grellas 14y 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.

mathattack 14y ago

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

The8thDwarf 14y 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 14y 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 14y 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.