
Judge Alsup knows how to play a bluff - grellas
http://www.economist.com/blogs/babbage/2012/06/oracle-v-google
======
grellas
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.

~~~
Natsu
I had the impression that, with recent budget cuts and the like, such active
case management was becoming a matter of necessity, lest the courts be
completely overwhelmed. In your view, is that correct?

That is, of course, not to take anything away from Judge Alsup, who did a
commendable job with this case. I've never seen a judge take so many expert
witnesses to task like that, especially the on in Oracle's motion for JMOL.

~~~
grellas
In the federal courts, I think it is more a matter of philosophy than of
economic necessity. Unlike state courts, federal courts use the single-judge
calendar system, meaning that any given case is assigned to one judge for all
purposes from beginning to end. This means that a judge who is proactive in
managing cases will reap direct rewards in keeping his docket under control.
In addition, federal judges sit for life and cannot be removed except for
grounds justifying impeachment. They thus has _enormous_ power and some run
their courts almost like little fiefdoms (or at least it seems that way!).
When they want to twist arms, the parties have little choice but to comply,
even as they might buck and kick in the process. In any case, when high-
powered lawyers and their litigant clients come into federal court and try to
muscle the court and the other parties, the judge has a basic choice: do I let
this go on unchecked or do I set a tone by which I control things. Eventually,
the judges realized that they had to be aggressive in setting the right tone
and this in time became the norm with many of them. It definitely ties in with
the idea of not letting the courts be completely overwhelmed but it is not
budget-driven as such but rather is motivated by necessities of reining in
cases (and lawyers and parties) that would otherwise run wild to the detriment
of the judge and his docket. Today, federal judges will vary on how much they
use such power to curtail abuse and to promote aggressive management but the
trend is very much, as you say, toward proactive management.

~~~
Natsu
Fascinating, thank you.

------
slavak
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
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
Suggested reading -- Joanne Siegel et al v. Time Warner Inc

[http://law.justia.com/cases/federal/district-
courts/californ...](http://law.justia.com/cases/federal/district-
courts/california/cacdce/2:2004cv08776/166872/174)

Includes the history of Superman creation (with pictures) and some discussion
of his superpowers.

------
mahmud
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!

------
sudhirj
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
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.

~~~
inopinatus
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.

------
option_greek
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
Hold your surprise until your guesses are backed by evidence.

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

~~~
sjwright
Imagine if judge selection worked like jury selection. Yikes.

~~~
lonnyk
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.

~~~
Turing_Machine
They don't want people who know stuff on the jury. They want people they think
they can manipulate.

~~~
uxp
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=20120416085550...](http://www.groklaw.net/articlebasic.php?story=20120416085550303)

~~~
rayiner
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).

~~~
rprasad
That is not the grounds on which the patent attorney was excused -- there is
no justification for excusing someone whose personal experience bears upon the
subjects brought up at trial. (In other words, you cannot excuse such a juror
"for cause" as you could the Oracle employee.) The key worry is that the
patent attorney may bring up his knowledge in deliberations with other jurors.

As for the Android users...Android users are not as enamored with Google as
iPhone users are with Apple, so that consideration would be laughed out of
court.

~~~
rayiner
> That is not the grounds on which the patent attorney was excused > The key
> worry is that the patent attorney may bring up his knowledge in
> deliberations with other jurors.

That's exactly why the patent attorney was excused. A juror is not supposed to
bring his view of the law into deliberations. The jury is supposed to get its
view of the law from the judge.

> As for the Android users...Android users are not as enamored with Google as
> iPhone users are with Apple, so that consideration would be laughed out of
> court.

Who knows what the relative brand-loyalty of Android versus Apple users is.
The point is that it is entirely legitimate to remove a juror that might have
reason to root for one side over the other.

~~~
rprasad
That's not how jury selection actually works in this country. Personal
experience in a relevant field is generally not a justification for removing a
juror _for cause._ A product preference is not a justification for removing a
juror for cause.

You can of course use one of your peremptory challenges (i.e, no justification
required) on such jurors, but you only get a handful of those (1-6, depending
on the jurisdiction).

------
sausagefeet
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
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
There's still the matter of whether it was Fair Use, which the Jury was hung
on.

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

------
ekm2
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.

------
DigitalSea
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."

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

~~~
jmgao
His middle name is Haskell. (Really!)

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

------
sakopov
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
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.

------
The8thDwarf
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!

------
its_so_on
( _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.

