Oracle America, Inc. v. Google Inc.

Filing 1222

MOTION for Judgment as a Matter of Law on Portions of Count VIII of Oracle's Amended Complaint, or, in the Alternative, for a New Trial filed by Google Inc.. Motion Hearing set for 8/23/2012 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 7/31/2012. Replies due by 8/7/2012. (Van Nest, Robert) (Filed on 7/17/2012)

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KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[e-mail]
CHRISTA M. ANDERSON - # 184325
[e-mail]
DANIEL PURCELL - # 191424
[e-mail]
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
415 391 5400
Facsimile:
415 397 7188

KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[e-mail]
CHERYL A. SABNIS - #224323
[e-mail]
101 Second Street, Suite 2300
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]

KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
[e-mail]
ROBERT F. PERRY
[e-mail]
BRUCE W. BABER (Pro Hac Vice)
1185 Avenue of the Americas
New York, NY 10036
Tel: [phone]
Fax: [phone]

IAN C. BALLON - #141819
[e-mail]
HEATHER MEEKER - #172148
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant
GOOGLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ORACLE AMERICA, INC.,

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Plaintiff,

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v.

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GOOGLE INC.,

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Case No. 3:10-cv-03561 WHA
GOOGLE INC.’S NOTICE OF MOTION
AND MOTION FOR RULE 50(b)
JUDGMENT AS A MATTER OF LAW ON
PORTIONS OF COUNT VIII OF ORACLE’S
AMENDED COMPLAINT, OR, IN THE
ALTERNATIVE, FOR A NEW TRIAL

Defendant.
Date:
Time:
Dept.:
Judge:

August 23, 2012
8:00 a.m.
Courtroom 8, 19th Floor
Hon. William Alsup

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NOTICE OF MOTION AND MOTION
PLEASE TAKE NOTICE, that on August 23, 2012, at 8:00 a.m. or at such other time as

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the Court may direct, before the Honorable William Alsup, United States District Court, 450

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Golden Gate Avenue, San Francisco, California 94102, Defendant Google Inc. (“Google”) will,

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and hereby does, move the Court under Fed. R. Civ. P. 50(b) for judgment as a matter of law on

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portions of Count VIII of Oracle America Inc.’s (“Oracle”) Amended Complaint, or, in the

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alternative, for a new trial under Fed. R. Civ. P. 59.

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This motion is based on this Notice of Motion and Motion, the following Memorandum of
Points and Authorities, documents incorporated by reference, the entire record in this action, any

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matters of which the Court may take judicial notice, and any evidence or argument that may be

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submitted to the Court in connection with the hearing on this motion or in the reply.

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Dated: July 17, 2012

KEKER & VAN NEST LLP
By:

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/s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
Google files this renewed motion for judgment as a matter of law (“JMOL”), or, in the

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alternative, a new trial solely for the purpose of preserving its rights on appeal in light of the fact

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that Oracle has stated its intention to file an appeal in this matter.
Google is entitled to JMOL, or, alternatively, a new trial on the portion of Oracle’s

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copyright claim that relate to the rangeCheck function. As stated more fully in Google’s Rule

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50(a) JMOL motions (Dkt. 984, 1007, and 1043), which are incorporated herein by reference,

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Google’s use of the rangeCheck function is de minimis as a matter of law. The rangeCheck

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function is nine lines of code out of millions in the J2SE platform. The J2SE platform is the work

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Oracle registered with the Copyright Office and the copyright in the J2SE platform is the

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copyright that Oracle accused Google of infringing in this litigation. Thus, the J2SE platform is

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the “work as a whole” for purposes of the de minimis analysis as it relates to the rangeCheck

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function. Indeed, as explained in Google’s prior copyright briefing (e.g., Dkt. 955 and 993), the

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J2SE platform is the “work as a whole” for all purposes. Based upon the trial record, no

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reasonable jury could find that Google’s use of the rangeCheck function was anything other than

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de minimis when compared to the entire J2SE platform.
Even if the Arrays.java file in J2SE (the file in which the rangeCheck function is found,

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and the only file which calls the rangeCheck function) is the “work as a whole”—and it is not—

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Google’s use of the rangeCheck function still is de minimis as a matter of law. The nine lines of

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code that comprise the rangeCheck function are quantitatively insignificant when compared to the

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3,179 lines in Arrays.java, and Oracle failed to present evidence sufficient to support a finding

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that the rangeCheck function is qualitatively significant.
For these reasons, and all the reasons stated in Dkt. 955, 984, 993, 1007, and 1043, which

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are incorporated herein by reference, Google’s motion should be granted.

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II.

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JMOL LEGAL STANDARD
Judgment as a matter of law is warranted when “a party has been fully heard on an issue

during a jury trial and the court finds that a reasonable jury would not have a legally sufficient
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evidentiary basis to find for the party on that issue . . . .” Fed. R. Civ. P. 50(a)(1). Rule 50

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“allows the trial court to remove . . . issues from the jury’s consideration when the facts are

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sufficiently clear that the law requires a particular result.” Weisgram v. Marley Co., 528 U.S.

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440, 448 (2000) (internal quotations omitted). The standard for granting judgment as a matter of

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law, in practice, mirrors the standard for granting summary judgment, and “the inquiry under each

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is the same.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).

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III.

ARGUMENT

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A.

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In deciding whether alleged copying is de minimis, the significance of the material must

The J2SE platform is the “work as a whole.”

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be measured “in relation to the plaintiff’s work as a whole.” Newton v. Diamond, 388 F.3d 1189,

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1195 (9th Cir. 2004). Over Google’s objection, the Court instructed the jury that “[f]or purposes

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of Question No. 3, the ‘work as a whole’ is the compilable code for the individual file . . . .” Dkt.

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1018 at 14-18; RT 2415:18-20, 2418:14-17 (charging conference). That instruction was error.

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As explained in Google’s prior copyright briefing on this issue (Dkt. 955 at 5:2-12:2, Dkt. 984 at

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5:1-10, Dkt. 993 at 3:9-6:5, and Dkt. 1043 at n. 9), the Court should have instructed the jury to

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compare the rangeCheck code to the entire J2SE platform to determine whether it was de

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minimis.

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Oracle based its infringement claim in this case on two registered “works”: versions 1.4

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and 5.0 of the J2SE “platform.” Dkt. 36, Ex. H; see also TX 464 and 475. The registrations for

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those works do not suggest that the “work” being registered was anything other than the complete

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J2SE platform. See TX 464 and 475. Indeed, Oracle pleaded as much in its Amended Complaint,

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alleging that “Google’s Android infringes Oracle America’s copyrights in the Java platform.”

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Dkt. 36 at ¶ 39 (emphasis added).

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“[I]t is the registration that sets the scope for the copyright protection.” Express, LLC v.

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Fetish Group, Inc., 424 F. Supp. 2d 1211, 1218 (C.D. Cal. 2006). There is no proper legal or

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evidentiary basis on which either of Oracle’s two copyright registrations in two different versions

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of the J2SE platform as whole can be subdivided, file-by-file, into separate copyright-protected

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“works.” Thus, the J2SE platform versions 1.4 and 5.0—not an individual file within those
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platform versions (i.e., Arrays.java)—are the “works as a whole” for purposes of the infringement

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analysis. See id.; NXIVM Corp. v. The Ross Institute, 364 F.3d 471, 475 (2d Cir. 2004) (rejecting

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plaintiff’s attempt to subdivide a single registered copyright into multiple works); see also 17

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USC § 411.

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Additionally, as explained in Google’s prior briefing (e.g., Dkt. 955 and 993), the J2SE

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platform in its entirety must be the “work as a whole” for all purposes. Google’s argument

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herein therefore applies to all aspects of Oracle’s copyright claim, not merely to the portion of

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Oracle’s claim directed at the rangeCheck function. To the extent necessary to preserve the

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work-as-a-whole issue for appeal (and Google understands it is not necessary on this issue but

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does so in an abundance of caution), Google hereby renews its motion for judgment as a matter of

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law, or in the alternative, moves for a new trial on the portions of Oracle’s copyright claim

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directed at the allegedly “decompiled files.” See Dkt. 1211 at 2:12-16. For all the reasons stated

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in Dkt. 984, 1007, and 1043, which are incorporated herein by reference, the “decompiled files”

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are de minimis as a matter of law when compared to the J2SE platform as a whole.

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B.

The rangeCheck function is de minimis as a matter of law when compared to
the J2SE platform as a whole.

“For an unauthorized use of a copyrighted work to be actionable, the use must be
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significant enough to constitute infringement. This means that even where the fact of copying is
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conceded, no legal consequences will follow from that fact unless the copying is substantial.”
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Newton, 388 F.3d at 1192-93 (internal citations omitted). “Substantiality is measured by
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considering the qualitative and quantitative significance of the copied portion in relation to the
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plaintiff’s work as a whole.” Id. at 1195. The undisputed evidence at trial showed that, as a
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matter of law, the rangeCheck function is quantitatively and qualitatively insignificant when
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compared to either version 1.4 or version 5.0 of the J2SE platform.
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The rangeCheck function is quantitatively insignificant. It is nine lines of code. TX 623
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at 25. The J2SE platform includes millions of lines of code. RT 2245:6-8 (Reinhold); RT
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2185:10-14 (Astrachan). No reasonable jury could find that such a small amount of allegedly
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copied code is quantitatively significant. See Newton, 388 F.3d at 1196-97 (holding that no
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reasonable jury could find that a six-second snippet of a four-and-half-minute song was

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quantitatively significant).

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The rangeCheck function is also qualitatively insignificant. According to Josh Bloch,

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who wrote the code, the rangeCheck function is “[v]ery, very simple”; “[a]ny competent high

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school programmer could write it.” RT 815:13-16 (Bloch). Even Oracle’s expert Dr. Mitchell

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conceded that “a good high school programmer” could write the rangeCheck code. RT 1316:24-

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25 (Mitchell). In fact, the rangeCheck code was so insignificant that it is not even a part of the

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most recent and current versions of Android. See RT 825:8-19 (Bloch).

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When asked whether the rangeCheck function has any economic significance outside the

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library of which it is a part, Dr. Mitchell stated that he was “not sure” it had any such

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significance. RT 1316:12-18. Dr. Mitchell also testified that the rangeCheck function is

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purportedly called over 2,600 times when an Android emulator is started up. See RT 1329:15-21.

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But he offered no testimony that would allow a reasonable jury to conclude that a function called

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that many times is qualitatively significant. Mere frequency of use of a trivial element cannot

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support a finding of qualitative significance. A typical novel might include the word “the”

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thousands of times, but that does not render the word “the” qualitatively significant to Moby

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Dick. Dr. Mitchell’s testimony about how many times the rangeCheck function is purportedly

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called during the startup of an Android emulator (and not an actual Android device), standing

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alone and without any frame of reference, cannot support a finding of qualitative significance.

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Thus, on the complete trial record, no reasonable jury could find that the rangeCheck function

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was anything other than qualitatively insignificant. See Newton, 388 F.3d at 1196-1197 (holding

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that no reasonable jury could find that a six-second snippet of a song was qualitatively significant

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where that section was “no more significant than any other section.”).

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Therefore, for these reasons and all the reasons stated in Dkt. 955, 984, 993, 1007, and
1043, Google’s JMOL motion should be granted.
C.

The rangeCheck function is de minimis as a matter of law when compared to
the Arrays.java file in the J2SE platform.

Even if the Court properly instructed the jury that the “work as a whole” for purposes of
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the de minimis test was the compilable code for the individual file, Google’s use of the

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rangeCheck function still is quantitatively and qualitatively de minimis as a matter of law.

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The rangeCheck function is found in the Arrays.java file in J2SE. That file is 3,179 lines

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long. TX 623 at 61. Thus, the rangeCheck function is less than three-tenths of one percent of the

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Arrays.java file. And the rangeCheck code is also qualitatively insignificant when compared to

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the Arrays.java file, just as it is when compared to the entire J2SE platform. No reasonable jury

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could find that the rangeCheck function is anything other than quantitatively and qualitatively de

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minimis in the context of the Arrays.java file as a whole. See Newton, 388 F.3d at 1196-97. For

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these reasons, and all the reasons stated in Dkt. 984, 1007, and 1043, Google’s JMOL motion as

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to the portion of Oracle’s copyright claim related to the rangeCheck function should be granted.

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D.

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A new trial may be warranted where “the verdict is against the weight of the evidence.”

In the alternative, Google is entitled to a new trial.

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Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Montgomery Ward & Co.

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v. Duncan, 311 U.S. 243, 251 (1940)). For all the reasons Google is entitled to JMOL on the

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portion of Oracle’s copyright claim related to the rangeCheck function (supra Part III.A-C, Dkt.

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984, 1007, and 1043), Google is also entitled to a new trial on that claim. Google makes this

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alternative request for a new trial solely for the purpose of preserving that issue on appeal.

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IV.

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CONCLUSION
For all of the foregoing reasons, Google’s motion for judgment as a matter of law, or, in

the alternative, a new trial should be granted.

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Dated: July 17, 2012

KEKER & VAN NEST LLP
By:

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/s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.

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