Judge Alsup knows how to play a bluff

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.

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.

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!

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.

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.

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

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.

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

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.

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."

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

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

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.

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!

(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.

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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.