On Thursday afternoon, Judge William Alsup filed his "proposed charge to the jury": draft jury instructions and a draft special verdict form for the current, copyright-focused, trial phase. This (Friday) afternoon, he will discuss these documents with the parties' lawyers, who already identified their priority issues in filings made at around midnight local time.
Since it's possible that this material still undergoes significant change (even though the judge "believes [it] adequately and fairly covers all issues actually still in play"), it's too early to discuss it in detail. I'll just focus on the items the parties addressed before and after the judge presented his proposal.
Jury "must assume" copyrightability of APIs
This is what Judge Alsup now intends to tell the jury about copyrightability:
"It is my job to decide whether or not the copyrights on the computer programs do or do not extend to protect the structure, sequence and organization of the code of the programs. I will not be able to decide this question until after your verdict. For purposes of your deliberations, you must assume that the copyrights do cover the structure, sequence and organization of the code."
He was previously inclined to simply say that the structure, sequence and organization of the API packages is copyrightable. Google objected strongly because this would lead the jury to think that Google lost on a key point.
This means Google avoided a representation of the legal situation that it didn't like. At the same time, "must assume" is probably the most that the judge could do short of saying that copyrightability is a given.
Oracle's midnight filing doesn't address this matter at all. Nor did Oracle reply in any separate pleading to Google's argument about the assumption of copyrightability. I don't know if Oracle will still raise this issue, such as at the hearing this afternoon, but at least for now it appears that Oracle can live with "must assume".
Definition of "work as a whole" currently favors Oracle
Google wants the definitio nof "work as a whole" to be as broad as possible. It made a filing dedicated to this issue even before the proposed jury instructions were presented, and two of the three priority items of its critique of the judge's proposal relate to this matter. Google complains that "[a]cross the three questions that involve the “work as a whole” concept, the Court asks the jury to apply four different works as a whole". It wants the entire J2SE platform to be the work as a whole "for all purposes" (substantial similarity, fair use, and de minimis). While Google's interest in this is understandable (the broader the work as a whole is defined, the easier it is to argue that Android's APIs are different or that Google's use of such material was allowed), at least one of its arguments doesn't make sense: "Oracle claims that it does not allow subsetting of the API libraries" -- that's simply a rule to ensure full compatibility and doesn't mean that subsets can't be relevant in an infringement context.
As far as the copyrighted original material is concerned, Oracle insists that "[t]he structure, sequence, and organization ('SSO') of the API packages exists within the API documentation as well and Google should be liable for copying it", arguing that "[r]egardless of whether the SSO is expressed in the compilable code or the API documentation, it is protectable expression in both cases".
Furthermore, Oracle reminds the judge of his holding, at the time he threw out Google's motion for summary judgment against Oracle's copyright claims, that there's a "possibility that the selection or arrangement of those names [which are uncopyrightable on their own] is subject to copyright protection". That doesn't mean Oracle could sue anyone for using a simple word like "print", but without Oracle's requested clarification, the concept of structure, sequence and organization would be too abstract -- and it's a fact that elements that are non-copyrightable on their own can form part of a larger copyrightable work (in a way, every copyrightable work consists of non-copyrightable elements).
Fair use: both parties request clarifications based on past decisions supporting some of their positions
Either party requested additional instructions with respect to Google's fair use defense. While Oracle wants those instructions "supplemented", Google objects rather strongly to the current proposal.
Google wants an open-ended definition of fair use, asking the court to insert this sentence: "You may consider whatever additional factors you believe are appropriate, on the facts of this case, to assist in your determination of whether Google's use is a fair use." While the case law on fair use is reasonably inclusive, it's not open-ended. I would be surprised if the court granted this request.
Another Google proposal is much more reasonable: "All of the fair use factors must be weighed together. No single factor compels a conclusion of fair use or no fair use." This particular wording may not be adopted, but something along those lines might be.
Google wants the assessment of "the purpose and character of the use" to include "whether such work is transformative (meaning that it adds something new, with a further purpose or different character, altering the original with new expression, meaning, or message)". A criterion like "adds something new" is a very low hurdle.
Regarding the assessment of the nature of the copyrighted work, Google wants to place some emphasis on "whether the work is fictional or mostly functional or factual". Obviously computer programs are more functional or factual than a novel or a song -- nevertheless they are copyrightable.
Oracle proposes the inclusion of part of the preamble from Section 107, the fair use section of U.S. copyright law:
"[F]air use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
I think this is useful context for the question of what kinds of use are fair use, even though some of this typically isn't relevant to computer programs.
Oracle also proposes a reference to one Ninth Circuit (the circuit the Northern District of California belongs to) decision for each of the four fair use factors:
"Commercial use weighs against a finding of fair use."
"If the original copyrighted work is creative in nature, this cuts against a finding of fair use."
"The greater the quantity and quality of the work taken, the less that fair use applies. Copying may not be excused merely because it is insubstantial with respect to the infringing work."
"When the defendant's use of the copyrighted work competes with the copyrighted work, then it is less likely a fair use"
Three of these four cases involve high-profile parties. Items 1 and 3 are based on a case in which Elvis Presley Enterprises was the plaintiff, and item 2 is a case in which Napster was the defendant.
Those requests for clarification may be easier to sell to the court than fundamental changes such as with respect to what the "work as a whole" should be.
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