One month into the Oracle v Google trial, Judge William Alsup has revealed that he has, and still does, write code. Will this affect the outcome?
So far all that Oracle has managed to prove is that Google copied nine lines of Java code, that are incorporated into Android operating system and eight test files that are not part of the production code. And yesterday, in a hearing about "infringer profits" Judge Alsup challenged Oracle's lawyer David Boies for trying to pin so much on the rangeCheck infringement.
U.S. District Judge William Alsup, Northern District of California (Image: Hillary Jones-Mixon/The Recorder)
Boies had been trying to claim that Google's use of rangeCheck was "no accident" and that they had used it in order to save time:
They wanted it faster, faster, faster. This copying allowed them to use fewer resources and accelerate that. Suppose they accelerated it two days. They're making $3 million a day now, activating 700k or 800k phones. [something about how Google estimates they make $8 to $10 per activation] If you just get one or two days' acceleration, that's $6 million or $7 million, and it's not something that's untethered from the value that's created.
Judge Alsup then reminded Boies that, in order to claim infringer damages, Oracle will have to prove a "causal nexus", i.e a connection, between the infringement and the body of profits being sought. To this Boies replied:
I still think it's possible to demonstrate a nexus by showing that speed was very important to Google in getting Android out, and by copying they accelerated that.
It was at this point that the Judge made the revelation that caused a flurry of excitement:
I have done, and still do, a significant amount of programming in other languages. I've written blocks of code like rangeCheck a hundred times before. I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast, it was an accident. There's no way you could say that was speeding them along to the marketplace. You're one of the best lawyers in America, how could you even make that kind of argument?
Boies obviously misunderstands and responds:
I want to come back to rangeCheck.
To which Judge Alsup deliver's a body blow which indicates he at least does understand how straightforward it would be to program rangeCheck from scratch:
Judge: rangeCheck! All it does is make sure the numbers you're inputting are within a range, and gives them some sort of exceptional treatment. That witness, when he said a high school student could do it--
And the lawyer reveals he doesn't:
I'm not an expert on Java -- this is my second case on Java, but I'm not an expert, and I probably couldn't program that in six months.
Perhaps the moral of this is that Oracle should have included a programmer as part of its legal team.
However more important is the fact that Judge Alsup. who has a mathematics degree, really does understands the technical issues at the heart of this case. He has written code and over the period of his involvement of this case has extended his knowledge of programming languages to include Java. While he instructed the jury to make their deliberations on the basis that the 37 APIs were copyrightable this is a decision he has yet to make and at the start of yesterday's proceedings her stated:
I have been working hard on the order dealing with copyrightability, and I don't think I'll have that in the next week for sure.
Another thing is for sure, he'll be taking an informed look at the question and won't be swayed by vacuous arguments.
Perhaps every judge should be a coding judge - it must make the law seem a lot simpler...