Late on Sunday, Judge Alsup filed the final jury instructions and special verdict form (all of this limited to the current trial phase, which is focused on copyright). He adopted various proposals from both parties, but neither party will be completely satisfied with it. Depending on which party wins the verdict, we'll almost certainly see an appeal unless there's a settlement. Google has already filed some objections and I will comment later when I see both parties' objections. In other Sunday news, the parties made various filings with respect to their motions for judgment as a matter of law. I will address those at a later stage as well, with one exception (copyrightability instruction) that I'll talk about further below.
The jury will primarily have to decide on infringement and, if any infringement is found in any given area, the fair use defense. It won't get to decide on copyrightability (the parties agreed a while ago that this is a legal, not factual, question), and it won't render a complete verdict on Google's equitable defenses, though the form contains a couple of questions that the judge wants the jury to answer with a view to his analysis of those equitable defenses.
Even though the jury doesn't decide on copyrightability, what the final jury instructions say in this regard is important for the following four reasons (in no particular order):
The stronger Oracle's claim of copyrightability appears, the weaker Google's story looks in the eyes of the jury. Originally, the judge said he was going to instruct the jury that the structure, sequence and organization of the APIs are protected by copyright, a plan that Google opposed because it didn't want the jury to think that it has already lost on a key disputed question. The judge's first draft, which the judge filed on Thursday, stated that the jury "must assume" the copyrightability of the structure, sequence and organization of the APIs for the purposes of its deliberations. The final version says the following:
"For purposes of your deliberations, I instruct that the copyrights in question do cover the structure, sequence and organization of the compilable code."
Google's first objection relates to this. Google says the jury should be told the opposite. Google can't claim prejudice because either the instruction is right or Google is right. If the instruction is right, Google isn't prejudiced (if anyone is prejudiced in that case, it's Oracle because the statement would be even clearer otherwise). If Google is right, it wins the case regardless of the jury verdict.
I believe the final instruction on copyrightability is considerably more favorable to Oracle than the "must assume" version, though there may very well be people who are more impressed by being told they "must assume" something.
The instructions provide at least a hint as to where the judge stands on the key issues.
I have already expressed my belief that the judge wouldn't even be holding this jury trial if Oracle didn't have a reasonably good chance of prevailing on copyrightability. I have read the decisions on which the parties base their arguments and those are clearly in Oracle's favor, especially the Ninth Circuit decision in Johnson Controls v. Phoenix Control Systems.
The scope of what is copyrightable for the purposes of this trial obviously influences the likelihood of Google being found to infringe. In this regard, Oracle won an important insertion:
"While individual names are not protectable on a standalone basis, names must necessarily be used as part of the structure, sequence, and organization and are to that extent protectable by copyright."
This is actually just consistent with what the judge wrote in an order denying a Google motion for summary judgment on Oracle's copyright claims last summer. That sentence is so very important because it's really the names (a massive number of them, in fact) that the jury can easily identify when looking for virtually identical or substantially similar elements. The structure, sequence and organization would also be identifiable, but that's a much more abstract concept if one has to assume at the same time that the names themselves are not protected.
The infringement questions (one of which relates to the compilable code while the other relates to the Java documentation) are binary (yes or no) questions on the verdict form, but with a view to the fair use issue, the extent of any infringement identified will play a major role. I believe Google will most likely lose out on the infringement side (this is so obvious it shouldn't even be put before the jury in the first place) but the fair use verdict is not realistically predictable, especially since I think the jury instructions are, at least, misleading in some ways that may (but need not) help Google. Anyway, one of the fair use factors is related to the scope and scale of infringement. Let me quote from the final jury instructions:
"The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The greater the quantity and quality of the work taken, the less that fair use applies[.]"
If the judge hadn't adopted Oracle's proposed insertion regarding the copyrightability of the names as part of the structure, sequence and organization, Google would have had a better chance (relatively speaking) of the jury considering the extent of the infringement to be limited. Now, the use of such a massive number of names that are protected as part of a larger structure will very likely lead the jury to consider the infringement to be quite substantial, which in turn weights against a finding of fair use.
In another slight departure from my plan to talk about the parties' objections to the final form later, I'd like to mention that Google is very unhappy that the judge didn't allow the open-ended definition of fair use that Google proposed. Google wanted the judge to tell the jury that it can consider any factor it wants in connection with fair use. Oracle objected, and even before Oracle made its related filing, I wrote that "I would be surprised if the court granted this request" -- and indeed, the court rejected it.
Today is an important day: the parties will make their copyright-related closing arguments. I will definitely write about this case again shortly. For now I wanted to highlight what I thought was the most important aspect of the final jury instructions.
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