Oracle America, Inc. v. Google Inc.
Filing
994
PROPOSED CHARGE TO THE JURY AND SPECIAL VERDICT FORM. Signed by Judge Alsup on April 26, 2012. (Attachments: #1 Draft Special Verdict Form)(whalc1, COURT STAFF) (Filed on 4/26/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ORACLE AMERICA, INC.,
No. C 10-03561 WHA
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For the Northern District of California
United States District Court
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Plaintiff,
v.
GOOGLE INC.,
Defendant.
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COURT’S PROPOSED CHARGE TO THE JURY
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AND SPECIAL VERDICT FORM
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Appended hereto are copies of the draft charge to the jury and special verdict form given
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to both sides on April 26, 2012, for discussion with the Court at the charging conference on
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April 27, 2012, at 2:15 p.m. Although counsel have filed numerous waves of overlapping and
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even contradictory proposed instructions in the past, the proposed charge is based on the way
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the trial has actually developed, taking into account issues that have emerged and receded and
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concessions by counsel. Subject to the upcoming charging conference, the Court believes the
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proposed charge adequately and fairly covers all issues actually still in play. Therefore, in order
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to give the district judge a fair opportunity to correct any error as matters now stand, counsel
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must, at the charging conference, bring to the judge’s attention any addition, subtraction or
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modification or other objections or proposal for the jury instructions. Otherwise, all such points
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shall be deemed waived and it will not be sufficient merely to argue after the verdict that a
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proposed instruction filed earlier in the proceedings somehow was not adopted. Rather, any
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such proposal that counsel still cares about must be raised anew at the charging conference.
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The charging conference shall be conducted so as to give full and fair opportunity for counsel to
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raise any and all objections and proposals.
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For the Northern District of California
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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ORACLE AMERICA, INC.,
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No. C 10-03561 WHA
Plaintiff,
v.
GOOGLE INC.,
Defendant.
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[DRAFT]
FINAL CHARGE TO THE JURY (PHASE ONE)
AND SPECIAL VERDICT FORM
FOR CHARGING CONFERENCE ON
APRIL 27, 2012, AT 2:15 P.M.
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1.
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Members of the jury, it is now time for me to give you the final
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instructions, including instructions on the law that governs this case. A copy of
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these instructions will be available in the jury room for you to consult as
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necessary.
the side with the burden of proof has carried that burden, applying the elements of
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proof required by the law, elements I will provide you in a moment. In following
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my instructions, you must follow all of them and not single out some and ignore
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others. You must not read into these instructions or into anything the Court may
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For the Northern District of California
It is your duty to find the facts from all the evidence and to decide whether
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United States District Court
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have said or done as suggesting what verdict you should return — that is a matter
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entirely up to you.
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2.
The evidence from which you are to decide what the facts are consists of:
1.
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The sworn testimony of witnesses, whether presented in
person or by depositions;
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2.
The exhibits received into evidence; and
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3.
Any stipulated facts.
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3.
Certain things, however, are not evidence, and you may not consider them
in deciding what the facts are. I will list them for you:
1.
Arguments, statements and objections by lawyers are not
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evidence. The lawyers are not witnesses. What they have
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said in their opening statements, closing arguments and at
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other times is intended to help you interpret the evidence,
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but it is not evidence itself. If the facts as you remember
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them differ from the way the lawyers have stated them,
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your memory of them controls.
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2.
A suggestion in a question by counsel or the Court is not
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evidence unless it is adopted by the answer. A question by
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itself is not evidence. Consider it only to the extent it is
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adopted by the answer.
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3.
Testimony or exhibits that have been excluded or stricken,
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or that you have been instructed to disregard, are not
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evidence and must not be considered. In addition, some
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testimony and exhibits have been received only for a
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limited purpose; where I have given a limiting instruction,
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you must follow it.
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Anything you may have seen or heard when the Court was
not in session is not evidence.
4.
Evidence may be direct or circumstantial. Direct evidence is direct proof
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of a fact, such as testimony by a witness about what that witness personally saw
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or heard, or did. Circumstantial evidence is proof of one or more facts from
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which you could find another fact. By way of example, if you wake up in the
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morning and see that the sidewalk is wet, you may find from that fact that it
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rained during the night. However, other evidence, such as a turned-on garden
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hose, may explain the presence of water on the sidewalk. Therefore, before you
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decide that a fact has been proved by circumstantial evidence, you must consider
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all the evidence in the light of reason, experience and common sense. You should
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consider both kinds of evidence. The law makes no distinction between the
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weight to be given to either direct or circumstantial evidence. It is for you to
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decide how much weight to give to any evidence.
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5.
In deciding the facts in this case, you may have to decide which testimony
to believe and which testimony not to believe. You may believe everything a
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witness says, or part of it or none of it. In considering the testimony of any
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witness, you may take into account:
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1.
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The opportunity and ability of the witness to see or hear or
know the things testified to;
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2.
The witness’ memory;
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3.
The witness’ manner while testifying;
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4.
The witness’ interest in the outcome of the case and any
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bias or prejudice;
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testimony;
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Whether other evidence contradicted the witness’
The reasonableness of the witness’ testimony in light of all
the evidence; and
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Any other factors that bear on believability.
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You are not required to decide any issue according to the testimony of a
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number of witnesses, which does not convince you, as against the testimony of a
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smaller number or other evidence, which is more convincing to you. The
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testimony of one witness worthy of belief is sufficient to prove any fact. This
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does not mean that you are free to disregard the testimony of any witness merely
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from caprice or prejudice, or from a desire to favor either side. It does mean that
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you must not decide anything by simply counting the number of witnesses who
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have testified on the opposing sides. The test is not the number of witnesses but
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the convincing force of the evidence. You should base your decision on all of the
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evidence regardless of which party presented it.
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7.
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A witness may be discredited or impeached by contradictory evidence or
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by evidence that, at some other time, the witness has said or done something or
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has failed to say or do something that is inconsistent with the witness’ present
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testimony. If you believe any witness has been impeached and thus discredited,
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you may give the testimony of that witness such credibility, if any, you think it
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deserves.
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Discrepancies in a witness’ testimony or between a witness’ testimony and
that of other witnesses do not necessarily mean that such witness should be
discredited. Inability to recall and innocent misrecollection are common. Two
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persons witnessing an incident or a transaction sometimes will see or hear it
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differently. Whether a discrepancy pertains to an important matter or only to
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something trivial should be considered by you.
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However, a witness willfully false in one part of his or her testimony is to
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be distrusted in others. You may reject the entire testimony of a witness who
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willfully has testified falsely on a material point, unless, from all the evidence,
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you believe that the probability of truth favors his or her testimony in other
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particulars.
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In determining what inferences to draw from evidence you may consider,
among other things, a party’s failure to explain or deny such evidence.
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Certain charts and summaries have been received into evidence. Charts
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and summaries are only as good as the underlying supporting material. You
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should, therefore, give them only such weight as you think the underlying
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material deserves.
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Now I will address the burden of proof. In this case, the preponderance of
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the evidence standard applies on all sides, so whoever has the burden of proof on
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an issue must carry that issue by a preponderance of the evidence. When a party
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has the burden of proof on any claim by a preponderance of the evidence, it
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means you must be persuaded by the evidence that the claim is more probably
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true than not true. To put it differently, if you were to put the evidence favoring a
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plaintiff and the evidence favoring a defendant on opposite sides of a scale, the
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party with the burden of proof on the issue would have to make the scale tip
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somewhat toward its side. If the party fails to meet this burden, then the party
with the burden of proof loses on the issue. Preponderance of the evidence
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basically means “more likely than not.”
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12.
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On any claim, if you find that plaintiff carried its burden of proof as to
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each element of a particular claim, your verdict should be for plaintiff on that
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claim. If you find that plaintiff did not carry its burden of proof as to each
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element, you must find against plaintiff on that claim. This same principle also
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applies to defendants on claims for which it has the burden of proof.
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13.
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I will now turn to the law that applies to this case. Oracle seeks damages
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against Google for alleged copyright infringement. Google denies infringing any
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such copyright material and asserts that any use by it of copyrighted material was
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protected, among other things, by a defense called “fair use,” which will be
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explained below. To the extent that you find liability in this phase, we will
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consider the extent of damages in the third phase of the trial. Now, I will give
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you an overview of copyright law in general. Then I will give you a summary of
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the claims and defenses at issue in this case. After that I will give you a further
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statement of the copyright law to help you in resolving the claims and defenses.
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14.
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By federal statute, copyright is an exclusive right to copy a work, a right
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that lasts for 95 years from the date of publication. This right to copy includes the
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exclusive rights to:
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copyrighted work or to license others to do so;
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Recast, transform, adapt the work, that is, prepare
derivative works based upon the copyrighted work;
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Make additional copies or otherwise reproduce the
Distribute copies of the copyrighted work to the public by
sale; and
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Display publicly a copyrighted work.
It is the owner of a copyright who may exercise these exclusive rights to
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copy. Even though someone may acquire a copy of the copyrighted work, such as
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a book from a bookstore, for example, the copyright owner retains rights to
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control the making of copies of the work. The term “owner” includes the author
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of the work or someone who has purchased the copyright. An owner may sue for
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copyright infringement.
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Copyright automatically exists in a work the moment it is fixed in any
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tangible medium of expression, such as putting pen to paper. The owner of the
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copyright may then register the copyright by delivering to the Copyright Office of
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the Library of Congress a copy of the copyrighted work and applying via a
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registration form, after which the Copyright Office will either allow or disallow
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the application. By way of examples, copyrighted works can include
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Literary works like books, periodicals and, of particular
interest here, operating manuals;
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2.
Musical works;
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3.
Photographs and drawings;
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4.
Motion pictures;
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Computer programs, also of particular interest here.
Only that part of the works comprised of original works of authorship
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fixed in any tangible medium of expression from which it can be perceived,
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reproduced, or otherwise communicated, either directly or with the aid of a
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machine or device can be protected by copyright. To take examples, words can
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be fixed on paper, and a computer program can be fixed in the memory of a
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mobile phone.
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As stated, the owner of a copyright has the exclusive right to make copies
of all of part of the copyrighted work. If someone else does so without consent
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from the owner, then there is infringement (except in certain circumstances I will
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describe below).
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The copyright confers ownership over particular the expression of ideas in
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a work but it never confers ownership over ideas themselves. For example, if a
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book describes a strategy for playing a card game, the copyright prevents anyone
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(but the owner) from duplicating the book itself but everyone is still free to read
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the book and to use the strategy, for the idea set forth in the book, that is the
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strategy, is not protected by copyright. And, everyone is entitled to write their
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own book about the same game and the same strategy so long as they do not
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plagiarize the earlier book.
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Another statutory limitation on the scope of a copyright is that copyright
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never protects any procedure, process, system, method of operation, concept,
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principle, or discovery. Possibly such things can be claimed under the patent
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system or by trade secret laws but they may not be claimed by copyright. Again,
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the main point is that the copyright protects the particular expression composed
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by the author.
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I will now turn to the claims in this case. Oracle claims Google has
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infringed its copyrights in two registered works, namely, “Java Standard Edition,
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Version 1.4” (TX 464) and “Java 2 Standard Edition, Version 5.0” (TX 475), and
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the application leading to those registrations appear at TX 3529 and 3530.
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The registered copyrights generally cover the compilable code and documentation
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for the Java API packages. The main issues you must decide concern these two
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general types of work contained therein, namely “compilable code” and
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“documentation.” As used in these instructions and the Special Verdict Form, the
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term API “compilable code” refers to method and class names, declarations,
definitions, organization, parameters, and implementation (as well as the resulting
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object code) implementing the various API functions. In this connection, the
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source code that implements the function of the API is called the
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“implementation.” The “compilable code” does not include the English-language
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comments you have heard about. Even though such comments are embedded in
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the software program, these English-language comments do not get compiled and
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are not used by the computer to perform API functions. Instead, the English-
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language comments are part of what I will call the API “documentation,” a term
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that encompasses all of the English-language comments. The term “API
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documentation” includes all content — including English-language comments as
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well as method and class names, declarations, definitions, organization, and
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parameters — in the reference document for programmers. Again, please
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remember that although these English-language comments appear in the software
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program listing, they can be extracted for handy reference in the guides made
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available to programmers. So, I will be referring to the “API compilable code”
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and the “API documentation.”
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The copyrighted Java platform has more than 37 API packages and so
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does the accused Android platform. As for the 37 API packages that overlap,
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Google agrees that it uses the same names and declarations but contends that its
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line-by-line implementations are different (with the exception of the rangeCheck
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lines), a contention not disputed by Oracle. Instead, Oracle contends that Google
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copied the structure, sequence and organization of the compilable code for the 37
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API packages, individually as 37 separate packages and collectively as a single
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group. Google agrees that the structure, sequence and organization of the
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37 accused API packages on Android is substantially the same as the structure,
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sequence and organization of the corresponding 37 API packages in Java. Google
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states that the elements it has used are either not copyrightable in the first place or
its use was protected by a statutory rule permitting the public, including
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competitors, to make “fair use” of copyrighted works. It is my job to decide
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whether or not the copyrights on the computer programs do or do not extend to
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protect the structure, sequence and organization of the code of the programs. I
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will not be able to decide this question until after your verdict. For purposes of
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your deliberations, you must assume that the copyrights do cover the structure,
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sequence and organization of the code.
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I have, however, decided that the copyrights do not cover the names given
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to files or packages because under the law, names cannot be copyrighted. This
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includes the name “java” as well. Although “Java” has been registered as a
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trademark, the name java cannot be copyrighted, nor can any other name, whether
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one or two words or longer in length. Except for the names, you must take for
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granted that the structure, sequence, and organization of the programs is protected
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under copyright law.
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With respect to the API documentation, Oracle contends Google copied
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the English-language comments in the copyrighted Java work and moved them
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over to the documentation for the 37 API packages in Android. Google agrees
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that there are similarities in the language but, pointing to differences as well,
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denies that its documentation is a copy of the Java documentation. Google further
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asserts that the similarities are largely the result of the fact that each API carries
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out the same functions in both systems. Google again asserts the statutory
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defense of fair use. For the API documentation issue, you do not need to be
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concerned with structure, sequence, and organization, a concept that applies only
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to the compilable code part of the case.
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The issues just discussed center on the API packages. Apart from the API
issues, I will now describe a shorter list of specific items that Oracle contends
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were copied verbatim by Google. Specifically, Oracle contends that Google
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copied verbatim certain lines of compilable code, namely the rangeCheck method
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in two files, other source code as compiled into object code in seven “Impl.Java”
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files and one other file and, finally, certain English-language comments in two
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other files. Google responds that any verbatim copying by it was excusable under
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the law as “de minimis.” For purposes of this group of infringement contentions,
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the structure, sequence and organization is irrelevant and the comparison must be
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made to the work as a whole as defined in a moment.
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Now, I will turn to the more detailed law. In order to prove infringement,
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Oracle must prove by a preponderance of the evidence that Oracle’s work is
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original and that it is the owner of the part of the work allegedly copied.
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NOTE: COUNSEL SHALL PROVIDE AN AGREED-ON PARAGRAPH RE
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OWNERSHIP.
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To prove infringement, Oracle must also prove that Google copied all or a
protected part of a copyrighted work owned by it. There are two ways to prove
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copying. One is by proof of direct copying, as where the copyrighted work itself
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is used to duplicate or restate the same words and symbols on a fresh page.
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The second way is via circumstantial evidence by showing the accused
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had access to the copyrighted passages in question and that there are substantial
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similarities or, in certain instances, virtual identity between copyrighted work and
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the accused work. The virtual identity test is used when the subject under
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consideration is a narrow one and we would expect certain terms and phrases to
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be used. This is in contrast to a literary work in which there will be a broad range
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of creativity, in which case it is necessary only to prove substantial similarity. In
this trial, you should use the substantial similarity test for all such comparison
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except for those involving the API documentation, in which case you should use
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the virtual identity test. This is because the documentation for the API packages
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describe narrow technical functions and it is to be expected that the same words
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and phrases would be more likely used.
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NOTE: COUNSEL SHALL PROVIDE AN AGREED-ON PARAGRAPH RE THE
OBJECTIVE-SUBJECTIVE TEST.
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Copying that is considered “de minimis” is not actionable. A copying is
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“de minimis” only if it is so meager and fragmentary that compared to the work as
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a whole the average audience would not recognize the appropriation. You must
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consider the qualitative and quantitative significance of the copied portions in
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relation to the work as a whole. The burden is on Oracle to prove that the copied
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material was not de minimis.
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Now, I will explain the law governing Google’s defense based on the
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statutory right of the public to make “fair use” of copyrighted works. The public
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may use any copyrighted work in a reasonable way under the circumstances
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without the consent of the copyright owner if it would advance the public interest.
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Such use of a copyrighted work is called a “fair use.” The owner of a copyright
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cannot prevent others from making a fair use of the owner’s copyrighted work.
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Google has the burden of proving this defense by a preponderance of the
evidence.
In determining whether the use made of the work was fair, you should
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consider the following factors:
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such use is of a commercial nature or is for nonprofit
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educational purposes;
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The purpose and character of the use, including whether
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The nature of the copyrighted work;
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The amount and substantiality of the portion used in
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relation to the copyrighted work as a whole; and
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The effect of the use upon the potential market for or value
of the copyrighted work.
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If you find that Google proved by a preponderance of the evidence that
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Google made a fair use of Oracle’s work, your verdict should be for Google on
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that question in the Special Verdict Form.
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With respect to the infringement issues concerning the rangeCheck and
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other similar files, Google admits that the accused lines of code and comments
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came from the copyrighted material but contends that the amounts involved were
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so negligible as to be de minimis and thus should be excused.
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30.
In your deliberations, you will need to make certain comparisons to the
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“work as a whole.” It is my job to isolate and identify for you the “work as a
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whole.” You must take my identification as controlling if and when this comes
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up in your deliberations. This issue arises when (1) comparing Oracle’s work and
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Android’s work for similarity under both substantial similarity and virtual identity
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standards, (2) deciding whether Google copied only a de minimis amount of
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Oracle’s work, and (3) evaluating the third factor of fair use: the amount and
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substantiality of the portion used in relation to the copyrighted work as a whole.
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Although you have seen that the copyright registrations cover a large
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volume of work, the entire registered work is not the work as a whole for these
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purposes. This may seem odd to you, so let me give an example. An entire
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magazine issue may be copyrighted but a specific article advertisement or
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photograph may be the relevant work as a whole depending on what was
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allegedly copied.
For purposes of this case, I have determined that the “work as a whole”
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means the following: For purposes of Question No. 1 in the Special Verdict
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Form, the “work as a whole” constitutes all of the compilable code associated
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with all of the API packages (not just the 37) in the registered work. This
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excludes the virtual machine. For purposes of the first two subquestions of
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Question No. 2 in the Special Verdict Form, the “work as a whole” is, for each
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API package, the compilable code for that individual API package. For purposes
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of the last two subquestions of Question No. 2 in the Special Verdict Form, the
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“work as a whole” means the contents (including name, declaration and
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English-language comments) for that individual API package. For purposes of
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Question No. 3, the “work as a whole” is the compilable code for the individual
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file except for the last two files listed in Question No. 3, in which case the “work
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as a whole” is the compilable code and all the English-language comments in the
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same file.
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31.
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Google had no right to copy any elements of the Java platform protected
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by copyright unless it had a written license to do so from Sun or Oracle or had a
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written sub-license to do so from a third party who had a license from Sun or
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Oracle conferring the right to grant such sub-licenses. The burden is on Google
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to prove it had any such license or sublicense rights. Put differently, if Google
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claims a license from a third party, Google has the burden to prove that the third
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party itself had the proper right and authority from Sun or Oracle as to any of the
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copyrights owned by Sun or Oracle and used by Google, for Google could acquire
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from the third party no greater right than the third party had in the first place.
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Similarly, if Google contends that Oracle or Sun had dedicated elements protected
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by copyright to the public domain for free and open use, the burden is on Google
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to prove such a public dedication.
32.
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If you find Google liable on any copyright claim, then Oracle further
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contends that Google should be found liable for vicarious liability. If you find
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that any third-party mobile device manufacturers or end-users infringed Oracle’s
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copyright in the works at issue, you may consider the Oracle’s claim that Google
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vicariously infringed that copyright. Oracle has the burden of proving each of the
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following by a preponderance of the evidence:
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1.
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Google profited directly from the infringing activity of
third-party mobile device manufacturers or end-users;
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Google had the right and ability to supervise the infringing
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activity of third-party mobile device manufacturers or end-
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users
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If you find that Oracle proved each of these elements, your verdict should be for
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Oracle if you also find that third-party mobile device manufacturers or end-users
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infringed Oracle’s copyright. If, on the other hand, Oracle has failed to prove any
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of these elements, your verdict should be for Google.
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33.
If you find Google liable on any copyright claim, then Oracle also further
contends that Oracle should be found liable for contributing liability. A
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defendant may be liable for copyright infringement engaged in by another if it
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knew or had reason to know of the infringing activity and intentionally induces
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that infringing activity.
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If you find that third-party mobile device manufacturers or end-users
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infringed Oracle’s copyright in the works at issue, you may proceed to consider
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Oracle’s claim that Google contributorily infringed that copyright. To prove
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copyright infringement, Oracle must prove both of the following elements by a
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preponderance of the evidence:
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1.
Google knew or had reason to known of the infringing
activity of third-party mobile device manufacturers or end-
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For the Northern District of California
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users ; and
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2.
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Google intentionally induced third-party mobile device
manufacturers’ or end-users’ infringing activity.
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If you find that third-party mobile device manufacturers or end-users infringed
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Oracle’s copyright and you also find that Oracle has proved both of these
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elements, your verdict should be for Oracle. If, on the other hand, Oracle has
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failed to prove either or both of these elements, your verdict should be for
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Google.
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34.
When you begin your deliberations, you should elect one member of the
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jury as your foreperson. That person will preside over the deliberations and speak
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for you here in court. I recommend that you select a foreperson who will be good
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at leading a fair and balanced discussion of the evidence and the issues.
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You will then discuss the case with your fellow jurors to reach agreement
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if you can do so. Your verdict as to each claim and as to damages, if any, must be
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unanimous. Each of you must decide the case for yourself, but you should do so
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only after you have considered all of the evidence, discussed it fully with the
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other jurors, and listened to the views of your fellow jurors.
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1
Do not be afraid to change your opinion if the discussion persuades you
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that you should. Do not come to a decision simply because other jurors think it is
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right. It is important that you attempt to reach a unanimous verdict but, of course,
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only if each of you can do so after having made your own conscientious decision.
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Do not change an honest belief about the weight and effect of the evidence simply
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to reach a verdict.
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I will give you a special verdict form to guide your deliberations.
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35.
Some of you have taken notes during the trial. Whether or not you took
notes, you should rely on your own memory of what was said. Notes are only to
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assist your memory. You should not be overly influenced by the notes. When
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you go into the jury room, the Clerk will bring in to you the trial exhibits received
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into evidence to be available for your deliberations. The Clerk will also provide
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you with an index to them.
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36.
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As I noted before the trial began, when you retire to the jury room to
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deliberate, you will have with you the following things:
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1.
All of the exhibits received into evidence;
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2.
An index of the exhibits if the lawyers are able to stipulate
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as to its form;
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3.
A work copy of these jury instructions for each of you;
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4.
A work copy of the verdict form for each of you; and
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5.
An official verdict form.
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When you recess at the end of a day, please place your work materials in
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the brown envelope provided and cover up any easels with your work notes so
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that if my staff needs to go into the jury room, they will not even inadvertently see
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any of your work in progress.
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37.
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1
A United States Marshal will be outside the jury-room door during your
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deliberations. If it becomes necessary during your deliberations to communicate
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with me, you may send a note through the marshal, signed by your foreperson or
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by one or more members of the jury. No member of the jury should ever attempt
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to communicate with me except by a signed writing, and I will respond to the jury
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concerning the case only in writing or here in open court. If you send out a
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question, I will consult with the lawyers before answering it, which may take
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some time. You may continue your deliberations while waiting for the answer to
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any question. Remember that you are not to tell anyone — including me — how
the jury stands, numerically or otherwise, until after you have reached a
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unanimous verdict or have been discharged. Do not disclose any vote count in
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any note to the Court.
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38.
Now that you are going to begin your deliberations, however, you must
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stay until 4:00 P.M. You may, of course, take a reasonable lunch break. The
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Court recommends that you continue to start your deliberations by 8:00 A.M. If
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you do not reach a verdict by the end of today, then you will resume your
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deliberations tomorrow and thereafter.
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It is very important that you let the Clerk know in advance what hours you
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will be deliberating so that the lawyers may be present in the courthouse at any
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time the jury is deliberating.
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39.
You may only deliberate when all of you are together. This means, for
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instance, that in the mornings before everyone has arrived or when someone steps
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out of the jury room to go to the restroom, you may not discuss the case. As well,
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the admonition that you are not to speak to anyone outside the jury room about
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this case still applies during your deliberation.
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40.
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1
After you have reached a unanimous agreement on a verdict, your
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foreperson will fill in, date and sign the verdict form and advise the Court that
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you have reached a verdict. The foreperson should hold onto the filled-in verdict
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form and bring it into the courtroom when the jury returns the verdict. Thank you
5
for your careful attention. The case is now in your hands. You may now retire to
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the jury room and begin your deliberations.
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Dated: [ONLY SIGN AND DATE AFTER
INSTRUCTION READ TO THE JURY]
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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United States District Court
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