WIRED:THE AMERICAN legal system is a curiously political place. Of course, that's true in the sense that judges are frequently partisan, elected through the democratic process, or nominated and confirmed by partisan presidents and senators.
It’s also the case that judges, from the lowliest to the Supreme Court, employ surprisingly subtle strategies to ensure thattheir thoughts survive challenges, even when those challenges are meant to be considered by their organisational “betters”.
Given the influence that American judicial decisions have on the rest of the world, that grants a lot of power to some apparently modest public servants.
Let me give you two examples, one of might appear initially somewhat tangential to the world of technology, and one which will have a profound effect on the next decade of software development.
This week, it was announced that the Californian Supreme Court had declined to reconsider the overturning of Proposition Nine. Translated from the state’s internal politics, that means that California’s senior judges had bounced a final declaration upon the constitutionality of same-marriage bans to the US Supreme Court.
In doing so, they’ll present the court – now heavily divided between conservative and liberal justices – with a judgment originally constructed by Judge Vaughn Walker, a district judge in the northern district of California.
Walker’s opinion was elegantly constructed to survive such an appeal process; it established the facts of the case, and then created a neatly-parcelled legal argument that barely even conceded that anyone had standing to challenge it.
That doesn’t surprise me, because I saw Walker make a similar initial judgment in a case I was involved in, when a whistleblower at ATT revealed that the US National Security Agency had been conducting mass surveillance on American internet users.
In the end, Walker abruptly decided to throw out the case, but before he did so, you could see him in court carefully pondering not only in whose favour to decide, but how to build up a case that would withstand a challenge.
Perhaps it is because American judges come from adversarial attorneys, but once you spot it, can see the same almost proprietorial concern with their decisions in every part of the American legal system.
And for Silicon Valley, that can be a great benefit. Last week, Judge William Alsup gave his judgment in an apparent battle of the titans – Oracle, the database manufacturer versus Google, the search engine.
Oracle was suing Google because it claimed that Google’s Android mobile phone operating system illegally used elements of Java, the programming language and environment Oracle inherited from its purchase of computer hardware maker, Sun Microsystems.
The judge decided for Google, but his report on the case had an eye for posterity. Carefully walking his jury through the legal details over what may have seemed to them an obscure intellectual property dispute, he left the final detailed decision to himself. In particular, he declared false Oracle’s claim that an application programming interface, or API, could be copyrightable.
Alsup had instructed the jury to act as though APIs were copyrightable, primarily to draw out the facts of the case for any higher court.
In theory, that gave any appeals court more flexibility – they could challenge Alsup’s decision on copyrightability, but fall back on the facts that the jury had mulled over if they disagreed with him on that legal opinion.
But it also served to make his entire judgment stronger. As it was, the jury’s decision reinforced Alsup’s. The jury found in almost every count that Google did not illicitly copy Java.
Those facts mean that Oracle is unlikely to successfully overturn the decision. That means that Alsup’s own legal judgment will also most likely stand.
Most technologists will be very happy to hear that. The idea that an API is copyrightable strikes most as incredible, given that the very point of an API is to provide a common language between disparate parts of computing system.
Copyrighting an API would be like being train manufacturers able to sue over the use of a standard width in train tracks.
That lofty principle is not an easy idea to deduce as a jury member when you are being shown slides full of computer code. It’s tricky enough to understand if you’re a judge with no legal definition of API to work from.
But fortunately, Judge Alsup is a Silicon Valley judge, not only accustomed to seeing such local cases, but a hobbyist programmer himself. To better understand the case, Alsup taught himself how to code in Java, and even worked to see if he could do Google’s work independently without effectively “copying” Oracle’s code.
It’s not impossible that a tech-savvy judge such as Alsup could exist in another location, but it’s a lot more likely for him to exist in Silicon Valley. Judges here make deeper, long-lasting tech law. Just ask Judge Walker, who years before gay marriage and NSA spying, gave a judgment on a case between Apple and Microsoft.
In that, Walker decided that Microsoft couldn’t be sued over the similarities between Windows and the Mac. Walker’s judgment revolved primarily on the simple fact that Apple signed a poor contract with Microsoft, but the legal principle that you can’t copyright “look and feel” still stands. Alsup’s equally pivotal decision should easily last as long.
