from the you-wouldn't-reimplement-an-api dept
And this morning, Alsup issued an order telling both sides to provide sworn statements about this. For Google, it's why it had not updated its discovery responses to include the plans for Android on Chromebooks, and for Oracle, whether it, too, had neglected to update its discovery responses (and specifically calls out a misrepresentation by Oracle):
By THURSDAY AUGUST 25, AT NOON, Christa Anderson, counsel for Google, shall submit a sworn statement explaining why the discovery responses referenced in Court yesterday were not updated, including the full extent to which counsel knew Google’s intention to launch a full version of Marshmallow, including the Google Play Store, for Chrome OS.This does not mean that there absolutely will be a third trial, but it's at least more of a possibility than most observers thought possible. I honestly don't see how Android on Chromebook really matters for the fair use analysis. Oracle argues that since most of the talk on the market impact was limited to phones and tablets, that may have impacted the jury, but that's kind of laughable. The reality is that Oracle just wants another crack at a decision it disagrees with.
By the same date and time, Annette Hurst, counsel for Oracle, shall submit a sworn statement setting forth, after full inquiry, the full extent to which Oracle neglected to update its discovery responses by reason, in whole or in part, of one or more rulings by the judge. The same statement shall explain why counsel repeatedly represented that the Jones v. Aero/chem decision required an “evidentiary hearing” when that decision, as it turns out, made no mention of an “evidentiary hearing” and instead remanded because no “hearing” or other consideration at all had been given to the issue of discovery conduct by the district judge.
Of course, all of this is really a stupid side show. The real underlying problem was the Federal Circuit's decision that APIs were covered by copyright, despite almost no one actually thinking that's true. The whole fair use trial was an awkward mess, mainly because all of the arguments weren't so much about "fair use" but about whether or not anyone actually considered APIs to be covered by copyright. Going through another such trial would just be a mess.
But the other area where a new case may come about is that Judge Alsup made clear that Oracle was also free to bring new cases on new uses of Android to see if they were also fair use, meaning that any time Google does anything new with Android, it may face a new fair use trial. They wouldn't need to do this if the CAFC had just recognized that APIs are not covered by copyright, but it didn't and here we are in a big heaping mess.
By the same date, counsel shall meet and confer and advise the Court whether the form of judgment should be amended to reflect that it is not a final judgment but a Rule 52(c) judgment on partial findings, given that Oracle is entitled to challenge further uses of Android herein.This case is never going to end.