Oracle America, Inc. v. Google Inc.

Filing 1255

Transcript of Proceedings held on 8-23-12, before Judge William Alsup. Court Reporter/Transcriber Katherine Wyatt, Telephone number 925-212-5224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/17/2013. (kpw, COURT STAFF) (Filed on 10/19/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BEFORE THE HONORABLE WILLIAM ALSUP, JUDGE,

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ORACLE AMERICA, INC.,

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PLAINTIFF,
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VS.
) NO. C 10-3561 WHA
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GOGGLE INC.,
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DEFENDANT.
) THURSDAY
) AUGUST 23, 2012
___________________________________) 8:20 O'CLOCK A.M.

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TRANSCRIPT OF PROCEEDINGS

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APPEARANCES:

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FOR PLAINTIFF:

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MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1018
BY: MICHAEL A. JACOBS, ESQUIRE
KENNETH A. KUWAYTI, ESQUIRE
ROMAN A. SWOOPES, ESQUIRE
DANIEL MUINO, ESQUIRE

AND
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ANDREW C. TEMKIN, CORPORATE COUNSEL
ORACLE
500 ORACLE PARKWAY M/S 50P7
REDWOOD SHORES, CALIFORNIA 94065

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FURTHER APPEARANCES ON NEXT PAGE

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REPORTED BY:

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KATHERINE WYATT, CSR 9866, RMR, RPR
OFFICIAL REPORTER - US DISTRICT COURT
COMPUTERIZED TRANSCRIPTION BY ECLIPSE

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KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR

925-212-5224

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FURTHER APPEARANCES:

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FOR THE DEFENDANT:

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KECKER & VAN NEST LLP

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633 BATTERY STREET

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SAN FRANCISCO, CALIFORNIA 94111-1809

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BY:

ROBERT A. VAN NEST, ESQUIRE

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MICHAEL S. KWUN, ESQUIRE

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REID P. MULLEN, ESQUIRE

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CHRISTA MARTINE ANDERSON, ATTORNEY AT LAW

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RENNY HWANG, ESQUIRE

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GOOGLE INC.

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1600 AMPHITHEATRE PARKWAY

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MOUNTAINVIEW PARKWAY, CALIFORNIA 94043

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KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR

925-212-5224

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AUGUST 23, 2012

8:20 O'CLOCK

A.M.

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P R O C E E D I N G S

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THE COURT:

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MR. JACOBS:

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LET'S GO TO ORACLE V. GOGGLE.
GOOD MORNING, YOUR HONOR.

MICHAEL

JACOBS FROM MORRISON & FOERSTER FOR ORACLE.
WITH ME IS KEN KUWAYTI, DAN MUINO, ROMAN A. SWOOPES, AND
ANDREW TEMKIN FROM ORACLE.
THE COURT:

WELCOME.

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MR. VAN NEST:

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NEST, KEKER & VAN NEST FOR GOGGLE.

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MR. KWUN, MR. MULLEN AND WITH RENNY HWANG FROM GOGGLE?

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THE COURT:

GOOD MORNING, YOUR HONOR.

BOB VAN

I'M HERE WITH MS. ANDERSON,

WELCOME BACK. THIS IS A MOTION FOR

JUDGMENT AS A MATTER OF LAW BROUGHT BY GOGGLE.
WHO IS GOING TO ARGUE THIS?
MR. VAN NEST:

GOOD MORNING, YOUR HONOR.

VERY

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BRIEFLY, THIS MOTION CONCERNS THE NINE LINES OF CODE THAT WAS

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DISCUSSED EXTENSIVELY DURING THE TRIAL. IT ADDRESSES QUESTION

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3A ON THE VERDICT FORM.

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YOUR HONOR INSTRUCTED THE JURY THAT THEY COULD CONSIDER

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THE WORK AS A WHOLE TO BE THE TIMSORT FILE IN WHICH THE

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RANGECHECK METHOD WAS FOUND.

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WITH OUR EARLIER MOTION AND WITH JURY INSTRUCTIONS AND WITH THE

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VERDICT FORM THAT THAT WAS NOT CORRECT.

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WAS THE ENTIRE J2SE PLATFORM, BE IT 1.4 OR 5.O.

AND WE ARGUED BOTH IN CONNECTION

THAT WORK AS A WHOLE

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR

925-212-5224

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WE ARGUED SECONDLY THAT THE RANGECHECK METHOD WAS DE

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MINIMUS AS A MATTER OF LAW IN THAT IT WAS ONLY NINE LINES OF

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CODE. WHETHER YOU VIEW THAT AS NINE OUT OF 3,000, WHICH WAS THE

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TIMSORT FILE, OR YOU VIEW IT AS NINE OUT OF SEVERAL MILLION,

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WHICH WAS THE J2SE PLATFORM, IT'S DE MINIMIS AS A MATTER OF

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LAW.

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AND I THINK YOUR HONOR NOTED IN DISCUSSING THE DAMAGES

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FEATURES OF THIS THAT THIS WAS CODE THAT ANYONE COULD WRITE, A

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HIGH SCHOOL PROGRAMMER COULD WRITE.

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IT COULD BE WRITTEN IN A

SHORT PERIOD OF TIME.
WE HAVE ARGUED THIS TWICE. YOUR HONOR HAS RULED FOR ORACLE

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BOTH TIMES. I HONESTLY DON'T THINK THERE'S ANYTHING NEW IN THE

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BRIEFS THAT WE DIDN'T PRESENT BEFORE, SO I WOULD SUBMIT IT ON

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THE PAPERS, AND OUR PRIOR ARGUMENTS AND DISCUSSION WITH YOUR

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HONOR.

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THE COURT:

THANK YOU FOR YOUR BREVITY.

ORACLE.

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MR. JACOBS:

MR. KUWAYTI WILL ARGUE THIS YOUR HONOR.

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THE COURT:

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MR. KUWAYTI:

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THE COURT:

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MR. KUWAYTI:

MR. KUWAYTI.
GOOD MORNING, YOUR HONOR.

GOOD MORNING.
I THINK I HAVE NO CHOICE BUT TO BE AS

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BRIEF AS GOOGLE'S COUNSEL GIVEN YOUR COMMENTS. I THINK THIS IS

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AN ARGUMENT THAT YOUR HONOR HAS CONSIDERED BEFORE. THE PRIMARY

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ARGUMENT GOOGLE MAKES IS THAT BECAUSE THE WORK WAS REGISTERED,
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR

925-212-5224

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THE PLATFORM J2SE 5.0 AND THE PRIOR VERSION WAS REGISTERED WITH

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THE COPYRIGHT OFFICE, THAT THAT HAS TO BE THE WORK FOR THE

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PURPOSES OF DETERMINING THE WORK AS A WHOLE. THE COPYRIGHT

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REGULATIONS DON'T SAY THAT.

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TO THE CONTRARY, THEY SAY THAT YOU CAN REGISTER. YOU HAVE

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COPYRIGHTABLE ELEMENTS THAT THEMSELVES CONSTITUTE

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SELF-CONTAINED WORKS.

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WHEN THEY ARE COMBINED IN ONE UNIT OF PUBLICATION.

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HAPPENED HERE.

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THEY CAN BE REGISTERED AS A SINGLE WORK
THAT'S WHAT

I THINK ANYTHING TO THE CONTRARY WOULD BE AN

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ADMINISTRATIVE NIGHTMARE.

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REGISTER EVERY SINGLE FILE OF COMPUTER CODE THAT THEY ARE

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SUBMITTING WITH THEIR PROGRAM.

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IT WOULD REQUIRE CLAIMANTS TO

THE COPYRIGHT OFFICE DOESN'T WANT THAT, DOESN'T REQUIRE

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THAT. AND I THINK THE CASE LAW THAT WE'VE CITED, PARTICULARLY

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THE HUSTLER CASE, BEARS THAT OUT.

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I THINK THE OTHER ISSUE HERE IS THAT IF THERE WERE A RULE

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TO THE CONTRARY THAT WOULD MEAN THAT A PLAGIARIST COULD SIMPLY

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COPY FILES AT WILL OUT OF A COMPUTER PROGRAM THAT'S VERY LONG,

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AND THEN MAKE THE ARGUMENT THAT:

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"THERE'S 15 MILLION LINES OF CODE, OR 2 MILLION LINES
OF CODE, AND WE ONLY COPIED NINE FILES," AS IS THE CASE
HERE.
THE NEWTON VERSUS DIAMOND CASE WHICH BOTH PARTIES HAVE
CITED TALKS ABOUT THE POLICY BEHIND THE DE MINIMIS RULE BEING
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR

925-212-5224

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THAT COPYRIGHT INFRINGEMENT SHOULD ONLY BE INFRINGEMENT IF

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THERE'S COPYING TO AN UNFAIR EXTENT.

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THIS MOTION WAS ADDRESSED NOT JUST TO RANGECHECK, BUT TO
THE EIGHT DECOMPILED FILES.
I SUBMIT TO YOUR HONOR THAT A RULE THAT SAYS INTENTIONALLY

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DECOMPILING FILES AND COPYING THEM IS NOT COPYRIGHT

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INFRINGEMENT IN THE FIRST INSTANCE IS THE WRONG RULE. IT MAY BE

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THAT THERE ARE VERY LITTLE DAMAGES ASSOCIATED WITH THAT

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INFRINGEMENT.

IT MAY BE THAT IT'S USED IN A CONTEXT THAT

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JUSTIFIES A FINDING OF FAIR USE.

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HERE.

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IT'S NOT EVEN COPYRIGHT INFRINGEMENT AT ALL I THINK IS THE

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WRONG ARGUMENT.

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AND THERE'S NO SUCH CLAIM

BUT TO HOLD THAT SOMEBODY CAN SIMPLY DO THAT, AND THAT

AND THE LAST THING THAT I'D SAY IS THAT WHETHER THE COURT

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APPLIES WHAT WE THINK IS THE PROPER LENS, WHAT YOUR HONOR HAS

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HELD IS THE PROPER LENS OF COMPARING IT TO THE INDIVIDUAL FILE,

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OR THAT YOU COMPARE IT TO THE LINES OF CODE AS A WHOLE, THE

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STANDARD IS IT IS ONLY DE MINIMIS IF IT'S -- IF THE USE IS SO

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MEAGER, THE COPYING SO IS MEAGER AND FRAGMENTARY THAT AN

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AUDIENCE WOULDN'T RECOGNIZE THE COPYING.

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IN THIS CASE IN EITHER INSTANCE THE AUDIENCE, WHICH THE

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PARTIES AGREE IS PROGRAMMERS, PEOPLE WHO CAN READ THE CODE,

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WOULD RECOGNIZE THAT COPYING TOOK PLACE.

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AND THERE IS AMPLE EVIDENCE IN THE RECORD WITH RESPECT TO
RANGECHECK AND WITH RESPECT TO THE EIGHT DECOMPILED FILES TO
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR

925-212-5224

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SUPPORT THE JURY'S FINDING ON RANGECHECK AND TO SUPPORT THE

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JUDGE'S -- YOUR RULING ON JMOL.

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THE COURT:

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MR. KUWAYTI:

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THE COURT:

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MR. VAN NEST:

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THE COURT:

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MR. VAN NEST:

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THE COURT:

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ALL RIGHT. THANK YOU.
THANK YOU.

SUBMITTED?
YES, YOUR HONOR.

OKAY.

IS THAT ALL THAT WE HAVE TODAY?

I BELIEVE SO.

ALL RIGHT. THANK YOU VERY MUCH. IT'S

UNDER SUBMISSION.
MR. JACOBS:

THANK YOU, YOUR HONOR.

(THEREUPON, THIS HEARING WAS CONCLUDED.)

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STENOGRAPHY CERTIFICATION

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"I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT
FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER."

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10-19-12
KATHERINE WYATT

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KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR

925-212-5224

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KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR

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