Oracle America, Inc. v. Google Inc.

Filing 912

RESPONSE (re #909 MOTION for Administrative Relief Regarding Statement to Jury ) filed byGoogle Inc.. (Van Nest, Robert) (Filed on 4/13/2012)

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1 2 3 4 5 6 7 8 9 10 11 12 KEKER & VAN NEST LLP ROBERT A. VAN NEST - # 84065 rvannest@kvn.com CHRISTA M. ANDERSON - # 184325 canderson@kvn.com DANIEL PURCELL - # 191424 dpurcell@kvn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188 KING & SPALDING LLP DONALD F. ZIMMER, JR. - #112279 fzimmer@kslaw.com CHERYL A. SABNIS - #224323 csabnis@kslaw.com 101 Second Street, Suite 2300 San Francisco, CA 94105 Tel: 415.318.1200 Fax: 415.318.1300 KING & SPALDING LLP SCOTT T. WEINGAERTNER (Pro Hac Vice) sweingaertner@kslaw.com ROBERT F. PERRY rperry@kslaw.com BRUCE W. BABER (Pro Hac Vice) 1185 Avenue of the Americas New York, NY 10036 Tel: 212.556.2100 Fax: 212.556.2222 GREENBERG TRAURIG, LLP IAN C. BALLON - #141819 ballon@gtlaw.com HEATHER MEEKER - #172148 meekerh@gtlaw.com 1900 University Avenue East Palo Alto, CA 94303 Tel: 650.328.8500 Fax: 650.328.8508 13 14 Attorneys for Defendant GOOGLE INC. 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 ORACLE AMERICA, INC., 19 Plaintiff, 20 v. 21 Case No. 3:10-cv-03651 WHA GOOGLE INC.’S OPPOSITION TO ORACLE AMERICA, INC.’S MOTION FOR ADMINISTRATIVE RELIEF REGARDING STATEMENT TO JURY GOOGLE INC., 22 Defendant. Dept.: Judge: Courtroom 8, 19th Floor Hon. William Alsup 23 24 25 26 27 28 GOOGLE’S OPPOSITION TO ORACLE’S ADMINISTRATIVE MOTION RE STATEMENT TO JURY Case No. 3:10-CV-03561 WHA 649088.01 1 The Court should reject Oracle’s “motion for administrative relief,” which is actually just 2 an improper motion for reconsideration of the Court’s order deeming admitted the fact that the 3 names of the Java API packages at issue in this case are not protected by copyright, as the Court 4 found last year in its summary-judgment ruling. Oracle contends that it would be misleading to 5 tell the jury that the names are not copyrightable without also telling them that, in some 6 circumstances, the structure, selection, and arrangement of those names might be copyrightable. 7 But this is exactly the argument that Oracle made last week, in its opposition to Google’s motion 8 to deem admitted the non-copyrightability of the names. Oracle Opp’n to Google Admin. Mot. 9 [Dkt. 882] at 3-4. There, Oracle argued that “to simply instruct the jury that ‘the names are not 10 protected by copyright’” would “risk[ ] being misinterpreted to apply to the selection and 11 arrangement of the names.” Id. Oracle’s present motion is devoted solely to rearguing this point. 12 That alone is reason enough to deny it. 13 Moreover, Oracle’s requested “clarification” is a general statement of copyright law that 14 can, and should, wait for jury instructions. Telling the jury at the outset that the structure, 15 selection, and arrangement of the API package names might be copyrightable is a vague 16 statement of the law whose relevance is contingent on facts the Court and the jury have not yet 17 heard. It would not be helpful. It is not a definitive finding, like the Court’s ruling that the names 18 themselves are not copyrightable. There are many statements related to the copyrightability of 19 the structure, selection, and arrangement of the APIs that might be true, depending on how the 20 record develops at trial: 21 • “A copyright, we have seen, bars use of the particular ‘expression’ of an idea in a copyrighted work but does not bar use of the ‘idea’ itself.” Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971). “[I]deas themselves are not protected by copyright and cannot therefore be infringed.” Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1507 (9th Cir. 1987). • Where an idea and the expression merge, and “are thus inseparable, copying the ‘expression’ will not be barred, since protecting the ‘expression’ in such circumstances would confer a monopoly of the ‘idea.’” Rosenthal Jewelry, 446 F.2d at 742. • Any elements of the APIs that are "functional requirements for compatibility" are not protected by copyright. Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1522 (9th Cir. 1992). 22 23 24 25 26 27 28 1 GOOGLE’S OPPOSITION TO ORACLE’S ADMINISTRATIVE MOTION RE STATEMENT TO JURY Case No. 3:10-CV-03561 WHA 649088.01 1 • "Under the scenes a faire doctrine, protection is denied to those elements of a program that have been dictated by external factors." Baystate Techs. v. Bentley Sys., 946 F. Supp. 1079, 1088 (D. Mass. 1996). • Even if the structure, selection, and arrangement of the APIs are copyrightable under all of the above legal principles, any use of that structure by Google could be a fair use and therefore not an infringement. 2 3 4 5 Simply flagging complex legal issues like these for the jury at the start of trial would raise myriad 6 questions and answer none of them. That is what careful and focused jury instructions are for— 7 and the sensible time to issue such instructions is at the close of evidence, when any instructions 8 can and should be tailored to reflect the evidence actually offered at trial, as well as the Court’s 9 conclusions of law on copyrightability. The Court invited the parties to move to deem undisputed 10 narrow, identifiable issues that had been conclusively resolved, like the copyrightability of names. 11 The Court did not invite the parties to suggest general statements of copyright law. 12 13 The Court should deny Oracle’s motion for reconsideration. Dated: April 13, 2012 KEKER & VAN NEST LLP 14 15 By: 16 /s/ Robert A. Van Nest ROBERT A. VAN NEST Attorneys for Defendant GOOGLE INC. 17 18 19 20 21 22 23 24 25 26 27 28 2 GOOGLE’S OPPOSITION TO ORACLE’S ADMINISTRATIVE MOTION RE STATEMENT TO JURY Case No. 3:10-CV-03561 WHA 649088.01

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