Digital Judicial Opinions

Microsoft v. Uniloc

A video embedded in court opinion

Microsoft v. Uniloc (video embedded in court opinion) from Richard Sherwin on Vimeo.

In the spring of 2009, a jury rendered a verdict for $388 million against Microsoft for infringing a patent owned by Uniloc Inc., USA. The disputed patent involved a software registration system. The jury concluded that Microsoft’s hashing algorithm, known as MD-5, was “a summation algorithm” just like Uniloc’s.

On appeal, federal district court Judge William Smith granted Microsoft’s motion for a judgment as a matter of law. He ruled that a reasonable jury simply could not have reached the conclusion that the MD-5 was a summation algorithm or its equivalent based on the evidence presented at trial.

During the trial, the parties introduced dozens of visual displays as exhibits and demonstrative aids. One of those exhibits was a computer animation of how the MD-5 worked. Judge Smith decided that using that animation, which was produced by one of Microsoft’s experts, would be the best way to explain the pivotal issue in the case. So he “married” the expert’s animation together with the audio of the expert’s testimony at trial, and embedded the resulting visual in his judicial opinion.

Judge Smith thought the expert’s video was undisputed and ultimately dispositive (in Microsoft’s favor) of the key issue in the case. So the jurors must not have understood the video when they saw it in court. This raises a larger question, namely: when is it right to disregard a jury’s fact finding in response to a video?

In the Microsoft decision, like the US Supreme Court’s recent decision in Scott v. Harris, the courts ruled that no reasonable juror could reach a conclusion that differed from the court’s own after viewing the video in question. Okay, so what makes a different view so unreasonable? Is it a failure to recognize an objective (scientific or mathematical) truth? This seems to be what Judge Smith concluded in the Microsoft case. Or is it that the court’s experiential knowledge – its “common sense” about what’s true or not, based on factors like cultural and economic background, education, and ideology – gets mistaken for “universal” knowledge? Some have argued that this is what happened in the Scott case.

So the larger question that these cases raise is this: With what kind of visual truth are we dealing when a particular legal video is at issue? Does the video invite a single right answer, like adding up numbers? Or is it more subjective, like interpreting a story? To put the matter in cognitive psychologist Jerome Bruner’s terms, what sort of mind should we be using? Is it the “paradigmatic” mind, which deals with logical, mathematical, and scientific truth? Or is it the “narrative” mind, which deals with interpreting narrative truth?

Different minds, different ways of thinking about and reaching the truth. When it comes to everyday knowledge and experience we are entitled to rely on our common sense. But when it comes to technical knowledge we need experts to help us understand. So in this respect, maybe Judge Smith was right to overrule the jury’s common sense understanding of how Microsoft’s registration algorithm actually worked. But maybe the Supreme Court was wrong to pre-empt a prospective jury’s common sense judgment about the dangers of driving fast on a country road, which was what had to decided in the Scott case based on a police car chase video.

Scott v. Harris

Here is an excerpt from the car chase video recorded by cameras mounted on state patrol cars:

Here is an excerpt from the car chase video recorded by cameras mounted on state patrol cars: from Richard Sherwin on Vimeo.

The Supreme Court said “seeing is believing.” So they downloaded the police video to validate the Court’s majority opinion on what it showed. The majority said this was an extremely dangerous chase. But might reasonable minds differ on just how dangerous this chase really was? Did it call for lethal force by the police to protect the public? Justice Stevens thought not. Many others concur. Why not let a jury decide?

At oral argument Justice Scalia said the Scott video was the scariest chase scene he’d seen since The French Connection:

Was Scalia simply joking? Was he trying to get viewers to associate to The French Connection when they thought about the Scott video? Maybe the scariness of the French Connection chase scene might rub off on the Scott chase – reinforcing the Court’s view. Judicial reasoning by way of feature film analogizing? Could make teaching law more interesting. But what role does factual truth play in all this?

For another example of visual evidence in a patent dispute case, go to: