However, he is also proposing to instruct the jury that the structure, sequence and organization of the asserted Java APIs are copyrightable, which between you, me and those angels dancing on the head of a pin over there is the same as saying the APIs are copyrighted.

The good judge is going to wait for the jury to come home with a verdict on whether Google infringed the Java APIs – and the overwhelming evidence presented at trial suggests it did – before he says whether or not they are copyrightable and springs that tiger out of its cage.

He’s taking this route in an attempt to level the proverbial playing field for all concerned, according to what FOSS Patents says about Oracle and Google’s “midnight filings” Wednesday.

FOSS says Judge Alsup told Google: “I’ve already said that I’m going to instruct the jury, subject to a motion under Rule 50 [motion for judgment as a matter of law, i.e., a decision by the judge himself] later at the end of the case. I’m going to instruct the jury that the copyrights extend to the Structure, Sequence, and Organization.

“Now, I’m reserving on that ultimately. I see both arguments on that point, but we ought to get the verdict on that. If you were to win on fair use, for example, then the judge doesn’t have to decide those hard questions.”

Google doesn’t want the judge to be quite so explicit. It would prefer the jury be told to assume copyrightability and we’ll sort the wash out later.

FOSS quotes Google telling the judge that telling “the jury that a fundamental premise of Google’s defense case is wrong (rather than simply undecided)” would “leave the jury wondering what Google and its witnesses have been talking about for the past two weeks” and “prejudice the jury against Google on the issues the jury will actually decide.”

The other alternative, however, could prejudice Oracle’s position.

FOSS says “if the judge [ultimately] rules against copyrightability, the whole API copyright issue works out in Google’s favor, but if he rules in favor of copyrightability, he would, in retrospect, simply have told the jury the truth – even if prematurely, or one might say presciently.”

“In the scenario of Oracle being right on copyrightability, there would, however, be very significant prejudice for Oracle if the jury decided on infringement, fair use and Google’s equitable defenses based on considerably uncertainty over whether the material at issue is even protected at all. If that prejudice was outcome-determinative, Oracle would never know how the judge would have decided on copyrightability – because in that case, he’ll say that the finder of fact determined there was no infringement, rendering moot any questions of copyrightability. The only way Oracle could get a decision on copyrightability in that scenario would be a judicial decision overruling the jury, or a new jury trial with a different outcome.”

See www.fosspatents.com/2012/04/judge-plans-to-inform-jury-that.html.

Everyone agrees it has Amazon, particularly, and VMware, to a certain extent, in mind. However, what’ll probably end up happening is that Red Hat, which has a prominent part in the open source OpenStack project that Rackspace started, becomes the “Linux of the cloud” because it’s got all the pieces, or thinks it does, but that’s another story.

Anyway, Rackspace is inching out with a production-ready OpenStack cloud based on Essex, the fifth and best-yet release of the open source cloud platform put in train by Rackspace and NASA in the summer of 2010.

Rackspace CEO Louis Napier told a New York Times blog that he expects to have all his customers, by then perhaps 200,000 businesses, on some or all of an OpenStack system by summer.

The fight is supposed to come down to a dual between the proprietary Amazon APIs, now lauded as the de facto standard of public clouds, and the still immature but open source CloudStack APIs.

Rackspace says come May 1, in roughly two weeks time, it will begin providing customers with default access to widgetry that it’s now got in “limited availability.”

That includes:

* Cloud Servers, the Essex-based EC2-like compute piece of OpenStack, a k a Nova, accessible through the new programmable OpenStack API for switching between OpenStack clouds or a new intuitive control panel.

* A built-from-the-ground-up graphical Control Panel that allows server tagging to discriminate between production and development servers so they can be controlled in concert and has multi-region capabilities.

Rackspace says “limited availability” means customers can sign up now, the widgetry is reportedly production workload-ready, there are unspecified SLAs, 24×7 support and regular billing. It seems it could take Rackspace a couple, few months to ensure a smooth ramp-up but the move is supposed to be imperceptible.

Rackspace, which has already got the S3-like Cloud Files storage, a k a Swift, will move all of its public, private and hybrid cloud to this widgetry.

It’s also got stuff in “early access” defined as “production workload-ready but with limited support available, no service commitments and no billing.

They include:

* OpenStack Cloud Databases (Project Red Dwarf) with API access to a massively scalable, highly available MySQL database with redundant SAN storage for high performance and automated management. Figure on Microsoft SQL Server and other databases too but maybe not from Rackspace. Amazon, of course, has the MySQL-derived Relational Data Service (RDS).

* Single-view Cloud Monitoring of the infrastructure and applications based on Rackspace’s acquisition of Cloudkick.

Lastly it’s got early versions of products in “preview” looking for testers namely:

* OpenStack Cloud Block Storage, like Amazon’s Elastic Block Storage (EBS), but offering either solid state or lower-cost disk storage.

* Cloud Networks, software-defined virtual networks for managing logically abstracted network services programmatically. IDC says Rackspace’s Cloud Networks is “going to eliminate some of the hesitation businesses have around cloud adoption.” Thank you Cisco et al.

Rudimentary pricing will remain the same starting at $0.015 cents an hour for a Linux virtual server with 10GB of disk space and 256MB of RAM and $0.08 an hour for Windows.

Rackspace still has to say what the database, storage and networking will ultimately run.

HP, a chief OpenStack acolyte, won’t have a beta take on the Essex platform memorialized in its HP Cloud Services until May 10 with no estimates, as of last week, on when it could have a production public cloud.

There will be OpenStack fragmentation, observers prophecy. HP won’t return all the distinguishing tweaks it makes to the community.

Rackspace says on its web site that it’s got more than 170,000 businesses and 60% of the Fortune 100 as customers.

See www.rackspace.com/nextgen.

Essex has been in development for roughly the last six months. It’s supposed to be stablest, most enterprise release so far after 200-odd developers from 55 different companies reportedly worked to give it 150 new features.

It includes the first full release of the automation dashboard code-named Horizon for self-service provisioning and monitoring by plugged-in third-party products and the first full release of the identity component code-named Keystone providing a unified authentication system that works across the stack. Keystone can use passwords, token-based authentication or an AWS-style login variant.

Integration between the various parts of OpenStack is supposed to be improved and configurations easier to manage.

The Rackspace-contributed Swift Object Storage side of OpenStack has been updated for better compliance and data security so, for instance, objects can now expire according to an organization’s document-retention policies.

The NASA-contributed Nova compute component can do live migrations with multi-host networks, support HPC and includes additional block storage options including support for Nexenta, SolidFire and NetApp storage.

The image protection and usability of the so-called Glance Image Service has been improved.

With Essex OpenStack no longer supports Microsoft’s Hyper-V Server and hypervisor.

Implementation is expected to vary with testing.

Gartner analyst Lydia Leong gave Rackspace kudos for hyping OpenStack and said in a blog posting, “I think that [Citrix’] CloudStack is gaining better ‘real-world’ adoption than OpenStack, because it’s actually usable in its current form without special effort (ie, compared to other commercial software).

The last OpenStack release was Diablo last September; the next will be Folsom this September. It should focus on networking improvements.

Altogether there have been more than 100,000 downloads from OpenStack.org, according to the press release.

It’s Cisco biggest acquisition since it bought Tandberg, the video conferencing outfit, back in 2009 for $3.4 billion, and it’s meant to compensate for lagging growth it’s seeing in its core networks business.

According to a canned statement ascribed to Cisco CEO John Chambers “Our strategy has always been driven by customer need and on capturing market transitions. Our acquisition of NDS fits squarely into this strategy enabling content and service providers to deliver new video solutions that leverage the cloud and drive new monetization opportunities and service differentiation.”

NDS sells customizable, upgradable content streaming and protection software to service providers and media companies so they can deliver and monetize video entertainment. Subscribers can view, search and navigate digital content anytime, anywhere and on any device or devices. Devices, that’s important.

NDS has pushed into India and China, which suits Cisco to a “T.” Cisco is tight with US cable companies.

The acquisition is supposed to complement Cisco’s like-minded Videoscape streaming platform and broaden its opportunities in the SP market.

Cisco will pay $4 billion for the company, which was taken private in 2008 by News Corp and Permira, a London-based private equity group. It’ll spend another billion assuming its debt and paying retention-based incentives. The deal is expected to close during the second half and be accretive on a non-GAAP basis in its first full year.

Guess this means Cisco won’t be selling its Atlantic-Scientific set-top box business as speculated. NDS is supposed to smarten that operation up and tickle its low margins

The NDS widgetry works with set-top boxes, DVRs, PCs and mobile devices.

Over 90 of the world’s pay-TV platforms rely on its stuff including British Sky Broadcasting, Canal Plus and DirecTV. Its middleware is on 214 million devices, its DRM in 125 million pay-TV households and its DVR technology on 47 million devices. Evidently NDS contracts generally run for a nice stable five years. Cisco told All Things Digital it’s on a run rate to do $1 billion this year, but growth is under 10% a year. It’s reportedly got very steep margins.

The operation with its 5,000 employees will become part of Cisco’s Service Provider Video Technology Group (SPVTG) under general manager Jesper Andersen and NDS executive chairman Abe Peled will be chief strategist of Cisco’s Video & Collaboration Group. SPVTG is part of that group. Peled will report to Marthin De Beer, head of the Video and Collaboration Group.

Evidently Cisco will be using a slice of the $40 billion or so it’s got stashed overseas and can’t bring home without a tax penalty to buy the company.

His order Monday reads, “Motorola shall be expected to obtain full and immediate compliance by Google with Apple’s liability discovery demands.” The discovery is supposed to help Apple calculate damages.

As you might expect, MMI resisted Apple’s laundry list of demands, arguing that Google isn’t party to the lawsuit and can’t be compelled to turn over documents. It will probably put up further resistance but FOSS Patents figures it’s possible Apple might find a smoking gun even if the broad discovery it’s been granted is curtailed.

Posner, an IP expert, is presiding over a patent infringement suit Apple filed against MMI in 2010. MMI countersued. Posner has scheduled separate trials before different juries starting June 11 starting with whether MMI violates six Apple patents.

If memory serves, AMD hasn’t bought much of anything since it impoverished itself buying Canadian graphics chipmaker ATI Technologies for $5.4 billion back in 2006. It’s certainly the first major acquisition since AMD CEO Rory Read joined the company last summer.

The acquisition is supposed to be a strategic investment in the type of dense, low-power, high-bandwidth platform attractive to the cloud set and spook agencies these days. And that’s an itch ARM also means to scratch.

The sweet irony of the situation is that the only gear SeaMicro is currently selling is based exclusively on Intel parts, to wit the low-power Atom chip, and just recently a low-power Sandy Bridge Xeon processor, which lets it run heavyweight widgetry like Hadoop, real-time analytics, Java apps, PHP, Memcached and NoSQL in addition to webby stuff.

However, the industry’s newest couple says it’ll have an AMD Opteron-based model of SeaMicro’s widgetry out in the second half.

They didn’t identify the chip they mean to use, but it could be the upcoming one-socket processor code-named Delhi with four to eight cores that was the only future chip that fits the SeaMicro timeframe to be clearly targeted at microserver use on a recent roadmap Read gave Wall Street.

It would then appear that Intel, which calculates that microservers will represent 10% of the overall server market by 2016, has lost its sole microserver champion in the move.

CEO Andrew Feldman says that SeaMicro, which will be run as a free-standing unit, will continue to support its Intel line for the life of the chips it’s using, which he said was another two years. Intel in turn said two years is a long time and that another Intel flag carrier was bound to turn up.

Be that as it may Feldman said the conversation with Intel was “hard” without giving up any of the doubtlessly juicy details.

Among other things Intel hasn’t been able to break ARM’s vise-like grip on the lucrative low-power mobile market and by the end of the year the ARM contingent should have samples of four-core 64-bit silicon that’ll give it a leg up in the server and desktop market. Intel, meanwhile, will have a next-generation Atom.

AMD has also appeared to be leaning toward adopting the AMD chip, which SeaMicro rival Calxeda has developed into a quad-core 32-bit Server-on-a-Chip (SoC) that HP means to sell in its own so-called Redstone microservers for which it has set elaborate plans in train.

John Fruehe, director of product marketing for server products at AMD, acknowledged that AMD might eventually graft an x86 chip and an AMD chip together onto the same SeaMicro SoC. It also has its ATI-derived GPUs to play with, he said. There could also be plain vanilla ARM boxes.

See, SeaMicro’s so-called supercompute fabric, which connects thousands of processor cores, memory, storage and input/output traffic, supports multiple processor instruction sets.

AMD said the acquisition will accelerate its disruptive server strategy so it can stake out a “data center leadership position.”

One of the move’s disruptive features is the fact that for the first time AMD will be competing with its own customers while at the same time hoping to turn them into SeaMicro OEMs pushing the widgetry into the cloud data centers that IDC projects will be the fastest-growing segment of the server market through 2015.

Supposedly HP was supportive when notified of the acquisition. Guess we’ll see.

Feldman, who will become general manager of a new AMD Data Center Server Solutions business reporting to Lisa Su, AMD’s new general manager of global business units, said SeaMicro and AMD spent hundreds of hours in engineering discussions across many weeks and when AMD decided to pull the pin its footwork getting the deal together was “dazzling.” There were reportedly other unidentified contenders for the start-up not all of them chipmakers.

Feldman feels SeaMicro and AMD share the same lust “to change the whole server market.”

Otherwise SeaMicro, which got to this point on $60 million in venture capital, gets access to new markets, resources, technology and scale out of the deal.

AMD said the acquisition doesn’t change its 2012 financial guidance and it expects the transaction to be accretive to earnings sometime after 2012. The deal should close in the next few weeks.