The only thing more insane would be having one or a few persons with clear history of positions on an issue decide these kinds of questions. That is what you end up with if you use "experts" -- people with some sort of vested interest in a position that really can't possibly be impartial.
They give the jury very detailed guidance, in layman's terms, for each question. The jury is not being asked to use any technical expertise--they're being asked to judge the credibility of the experts who have presented each side's evidence.
It's like asking a dozen parakeets which of the two nuclear physicist in the room is right about string theory. I fail to see how their opinion can be relevant.
Programming isn't nuclear physics and juries aren't parakeets. And you're not asking juries broad questions like "who is right about string theory?" you're asking them very pointed questions like "did X present sufficient evidence to show that Y is true?" Even in a technical trial, you're not asking the jury technical questions like whether some code implements quick-sort or bubble sort. The law by and large doesn't deal in those sorts of questions and as a result those questions don't get posed to the jury.
"B. Has Google proven that its use of Oracle’s Java documentation constituted “fair use”?"
The judge will explain in detail what "fair use" means according to the law. The factors of fair use are something like this:
1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work.
An average person can evaluate whether Google's use of Oracle's documentation was commercial or educational. They can be made to understand the difference between documentation and actual code that makes a product work. They can be made to understand the difference between a few lines of code and a program containing millions of lines. They can hear evidence from experts about the potential impact of the use and decide who they find more credible.
It's not like on TV where there is a "guilty/non-guilty" verdict. The juries are asked very specific things that are expected to be within the range of comprehension of an ordinary person.
In this specific case, it's hard to imagine an average layperson being able to grasp such concepts after a reasonable amount of instruction by experts and the judge.
Let's use the Java interface construct as an example. It's expressed as code, but is it really just code? Isn't it really a spec other classes must implement in order to become valid Java code, expressed in code for the benefit of the compiler?
I consider my own unit tests as part of the documentation of the systems I deliver. There is little question as to whether the doctests are documentation, but testing them makes them execute. What are they then?
What if my code, during startup, reads UML files and compiles them to behavior that becomes part of the system during execution?
And my analogy works both ways - the opinion of a dozen theoretical physicists on birdseeds is equally relevant.
> In this specific case, it's hard to imagine an average layperson being able to grasp such concepts after a reasonable amount of instruction by experts and the judge.
Let's use the Java interface construct as an example. It's expressed as code, but is it really just code? Isn't it really a spec other classes must implement in order to become valid Java code, expressed in code for the benefit of the compiler?
1) The jury doesn't decide whether Java interfaces are protectable code versus unprotectable specifications. That's a legal determination for a judge. The judge deals in these sorts of general or philosophical principles. The jury deals in specific facts.
2) Technical distinctions aren't necessarily legally operative distinctions. The law tends to be based on things that are within typical peoples' experience.
3) You have days of peoples' undivided attention to explain things to a jury.
So in this example, the judge would be the one to decide whether Java interfaces, in principle, were protectable or not. The jury would decide things like the fact of whether Google copied Oracle's interfaces. Someone at Google might testify that they never saw Oracle's interfaces, and came up with them independently. The jury will decide whether they believe his story. They'll be shown code. They don't have to understand how it works to know whether the same variable names, etc, are being used.
My brother was actually on the Microsoft-Novell trial jury. Sounded both interesting and terrible. He really resented that the whole thing just ended up being a waste of time for him.
I believe one of the major social functions of the legal system is to disseminate the law.
Random people don't read 100s of blogs a day. Random people don't track 100s of RSS feeds. Random people watch major historical events. I personally think it's good to subject randoms to social activities analogous to "code review."
It's not a matter of "one" versus "many". The problem is ALWAYS: Code for 0, 1, or ∞. What we're witnessing here is an Optimistic Aristocratic Approach, which chooses "many". In our society, "many" is too primitive and vague of a concept. I imagine this is why less complex cultures correlate with linguistic markings which top off at "many," or that it's simply highly probable.
In any event, Optimistic Aristocratic Approach (which assumes the lowest-common denominator in its decision procedure over its sample, not the "ignorant" or "non-technical"), to me, entails that the legal system is attempting to familiarize randoms with these problems, not only to set a precedent in the law, but to set a social template as to how these issues should be treated systematically in court rooms. It also gives us a gauge of how effective we are at communicating these problems to "laypeople." Of course, no society would want randoms if it could not assume randoms were competent; but no society would want randoms if it could not assume randoms were indeed random. "Randomness" is a feature of our legal system insofar as it is a fact of nature (mutation): we cannot respond to randomness blindly. Choosing our best, ignores randomness because it assumes we are knowers. Choosing one, like a previous poster has noted, involves a predictable historical trend in law. Choosing our WORST is insane. Choosing RANDOM is pragmatic, even if stupid. (I don't care to see this legal system or government last, but I believe all I've said can be taken without anarchistic sensibilities.)
We should all bear in mind, perhaps, that this legal system is largely going to analogize these issues to industrial-products and scenarios. I believe the thrust of "no, no! not the randoms!" is contained in the Internet Declaration of Independence. Do you remember?:
_Governments of the Industrial World, you weary giants of flesh and steel_, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. [my emphasis]
I believe the point is not: "Don't trust commoners!" That's insipid and moronic. I believe that the general spirit is: "Don't trust commoners from the Industrial World to contribute meaningfully to our new set of values, whatever they may be!"
Not meaning to offend anyone but; to me a jury system is the most backward way of justice. Simply grab a random group of people of the street to essentially make life impacting decisions based on the theatrical performance of a lawyer.
It's like saying; Hey guys, we're short on brain surgeons, we're going to introduce brain surgeon duty. Everyone can cut meat, right?
That is because the jury system has been emasculated.
The Constitution in large part tries to lay out a minimum effective government, with as many checks and balances as possible to prevent that government tyrannizing the people.
Trial by jury was yet another check. If Congress and the President pass an unfair law, the courts are obliged to enforce it. But nobody can question a jury to know why they came to the decision that they did, and so juries are free to declare someone innocent if the law is bad. This is called jury nullification and is an honored part of the jury system. Surviving documents make it clear that this was the reason that the jury system wound up in the Constitution.
But the check has not worked as designed. In the 1800s employers sought, and got, anti-union laws. Juries refused to enforce them. The companies were clever, they sought and got laws requiring judges to misinform juries about their rights. You are only to decide on fact, you are not to decide on the law, etc. When they tried cases using unpopular laws and juries had received these instructions, the juries convicted people.
Those jury instructions have been modified over time, but still exist in some form. So much so that if someone states the honest truth it sounds radical. And that honest truth is that the jury system is supposed to a protection from bad government, and not a fairer way of determining the facts.
Have you ever been on a jury? I kinda thought that way too, then I served as a juror for a serious criminal case. I was very impressed with the result of the selection process (nice mix of race/gender/class that pretty accurately represents the city) and the seriousness with which nearly all the jurors took their task. People really wanted to get it right.
Just one data point, but I believe there are studies to back this up -- people have far more confidence in the jury system if they have been on a jury.
Maybe criminal cases are different. I was a juror recently for a civil case, and while I agree the jurors took their task seriously, most of them lacked the analytic intelligence required to rationally weigh the evidence. It came down to whose lawyers told the more emotionally compelling story.
The whole experience left me with much less faith in the jury system.
"We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don't know anything and can't read." -Mark Twain, 1880
Jurors work on some issues - whether A killed B - but applying a non-technical jury to something as far from common daily experience of most people is, to say the least, dangerous.
I know several expert witnesses who agree. They say the jury never understands their testimony, and they just side with whoever is more charismatic. Several experts have told me this in various forms.
I can't speak for everyone, but for me, flip the names on the case and I'll take the same side on the issues as I do now. What Oracle's argument has pivoted into is catastrophic if they win with it. It makes our patent mess look pedestrian. It's so catastrophic that I don't think there's any chance of it actually staying in their favor, even if it takes direct legislative action, but ye gods will it cause an epic, industry-stalling mess in the meantime.
Agreed. But the experts that have told me this have been both "plaintiff's experts" and "defense experts" (this is in pharmaceutical product liability) and they maintain this opinion about their juries irrespective of winning or losing.
The problem isn't with the jury system, it's with the fact that juries aren't allowed more freedom to function as they should. The purpose of a jury is to act as a buffer between government and defendants. Before the government, or a plaintiff using government's power, can impose on a defendant imprisonment or a fine, a jury of his peers must agree to it. If a law or its application is unjust, a jury should prevent it's application. See the Fully Informed Jury Association: http://fija.org/
The jury is given a lot more guidance and instruction than what you see on those forms. The judge spoon feeds them the law and the experts spoon feed them the technical information. And of course the judge retains substantial discretion to set aside the conclusions of the jury. The stuff about "theatrical performance" is more TV than reality. It's very important as a lawyer to be able to explain complicated concepts to the jury in a way they understand, but that's clarity not theatrics.
The jury is mostly there to weigh the credibility of the witnesses and experts. E.g. do we believe this Google witness when he says he didn't know about X? We do this for a very sensible reason, which is that it makes the legal system credible. It's very easy to lose faith in the judicial system because you don't trust judges, etc. It's easier to put your faith in a jury of your peers. And at the end of the day, as a dispute resolution mechanism that's what the judicial system depends on: faith that it will render fair judgments.
According to Groklaw the jury has not indicated an issue with question 4, but rather with one of the 3 first
Their (groklaw) quote is:
"Judge Alsup tells them they don't have to reach agreement on question 4. That's just advice for him, because he has to decide that in the end. No, they tell him they are at an impasse on one of the first three questions on the form."
Yes - for those not following the trial, the judge has told the jury that SSO are copyrightable, and if the jury finds against Google, then the judge will decide whether or not SSO actually is copyrightable. So he may render their decision moot.
Basically he's giving the jury a chance to render a narrower verdict rather than answer the broader SSO question outright.
How so? Any jury, technical or not, should find 1A for Oracle.
"Has Oracle proven that Google has infringed the overall structure, sequence and organization of copyrighted works?"
As far as I can tell nobody disputes that Google lifted the Java API's structure, sequence, and organization from Sun, and the judge told them to consider SSO copyrightable. Most programmers think it's ok to rip off an API because otherwise the world will burn, or something, but 1A is asking what Google did not whether it was illegal.
My bet is the jury is held up on the fair use, either for implementation (1B) or documentation (2B). These are vague questions that can easily go either way. My bet is that they find 1B for Google (implementing the API is ok) but find 2B for Oracle (reprinting the API SSO is not ok). You have to implement the API to make it compatible, but you don't have to republish the API.
I don't think either side disputes that Google implemented a portion of the Java API, which they copied from Apache Harmony. But they certainly seem to disagree on what qualifies as a meaningful definition of SSO, with Oracle arguing that both the entirety of Java and individual packages qualify as SSO.
It's not the jury's job to decide whether that qualifies as SSO, that's the judge's job. It's the jury's job to decide what people actually did, whether they did what they say they did, etc.
One of the jury's jobs is to decide whether Google infringed upon Oracle's protected property. It would seem like they'd require a clear definition of SSO to be able to do that.
I don't think the world would burn if APIs were copyrighted.
There are 'fair use' provisions and most companies would grant carte blanche to people to provide new implementations. I am actually struggling to think of an example other than Java.
So it would change nothing. In which case, why have them copyrightable at all? If companies aren't going to take advantage of it anyhow, it seems additionally pointless.
Fundamentally, the main reason to copyright something is to restrict others' use of it. Letting companies restrict their APIs' use would be unfortunate, so if it there is really no effect either way they should not be copyrightable.
SCO/Calderra would have loved to be able to claim ownership of libc for all *nix OSes. That's the kind of thing this case could be moving towards. Im sure somebody would love their tithes for SQL, too.
Why do you assume the Jury has no technical knowledge? Lawyers often seek engineers and technical minded people in voir dire for technical cases. Not subject matter experts, but a programmer or mechanical engineer has a high chance of being sought after by both sides.
you obviously didn't follow along during jury selection. Anyone with any software/engineering background was excused from the jury. The current jury has no technical knowledge whatsoever.
The judge specifically asked if anyone had software design experience; the two people who raised their hands were excused.
He later asked, "there are geeky types of people and people who are not into technology. If you are on a geeky end, could you raise your hand?" Noone raised their hand.
I understand there could be a bias, but on the other hand these people are making interpretations of the law that could have very large consequences for a long time. Self described non-geeks are going to have very little knowledge and potentially little care of those consequences
The judge should have filtered for bias in other ways
apparently it is not question #4, which leads to a few possibilities:
1. Unanimous on question 1, and therefore question 4 as well.
2. question 1 is the one they are still debating, and therefore haven't even considered #4.
Regardless, I don't think you can say whether this is good or bad for Google/Oracle either way. Yes, if they were stuck on #4, it would be bad for Oracle, but I can see them already deciding Yes to #1 and No to #4, and can't decide on #2 or #3.
@ShardPhoenix It IS completely insane to have a jury, a group of people specifically chosen because of their below-average intelligence and lack of technical knowledge, decide any kind of technical questions, especially this. Sad place we inhabit in this universe indeed ...
