In my previous post, I discussed the state of the discussion between Judge Alsup, Oracle and Google regarding copyright damages as of yesterday afternoon. Today the parties agreed on a stipulation, which they discussed with Judge Alsup in court, who has already signed it (see below):12-05-16 Order Granting Oracle-Google Stipulation on Copyright Damages
The short version is that there won't be a complicated analysis of the amount of infringer's profits Google has to disgorge for its use of the nine-line rangeCheck function and eight decompiled files unless Google is also found liable for its identified infringement of the structure, sequence and organization (SSO) of the 37 asserted Java APIs. If there is an API SSO liability finding, the related issues will be put before a future jury.
There's a good chance for the current jury that it doesn't have to work on any Oracle v. Google damages. The copyright part has been postponed, and for patent damages there are different ways to eliminate the need for a related jury verdict. While I do believe that a finding of infringement of some patent claims is likely (though juries are never too predictable), the relevant amounts for patent damages are no longer worlds apart. Google's position marks the low end, and it appears that Dr. Kearl (the court-appointed damages expert) calculated amounts somewhere in the middle between Google's and Oracle's (revised) damages claims. Even if all of the asserted patent claims were deemed infringed, and even if this infringement was deemed willful (there's strong evidence that it was, and the jury will render a verdict on this in the ongoing phase, Phase Two), which would triple the amounts, we're talking about numbers that are close enough to each other that there's a chance the parties can agree -- or, perhaps more likely, they may not be able to agree, but they may find this issue sufficiently non-critical to waive the jury, thereby allowing Judge Alsup to adjudicate this part all by himself.
While today's stipulation and order constitutes a compromise, it is extremely close to what Oracle wanted. Oracle sought, and ultimately managed, to avoid that damages for its smaller copyright infringement claims would be resolved before the question of API SSO (structure, sequence and organization) liability is resolved.
What's still unclear is when and how API SSO liability will be determined. An infringement was identified, and "fair use" has yet to be decided. Oracle wants a retrial to focus on "fair use", the only unanswered item on the copyright-related special verdict form, while Google hopes for an opportunity to do away with the infringement finding and, therefore, insists that both infringement and "fair use" be put before the future jury. Also, Judge Alsup has yet to decide on API SSO copyrightability. Without a finding of copyrightability, there wouldn't be a basis for liability -- but if Judge Alsup does not decide in favor of copyrightability, an appeals court might, in which case there would also have to be a decision on liability (with or without a jury) at some point.
Under today's deal, Oracle waives the right to seek, with respect to rangeCheck and the eight decompiled files, actual damages and copyright infringer's profits in the event that there is no finding of API SSO liability. In that case, Oracle will only ask for statutory damages, which the court will determine. Simply put, there will only be a future jury if it's needed in connection with API SSO liability and subsequently, provided that there is a finding of API SSO liability, for copyright damages and disgorgement issues.
Yesterday, Judge Alsup indicated that he's working on his API SSO copyrightability ruling, but he couldn't promise whether he'd get it done next week. If he decides against copyrightability, an appeal will be necessary in order for a jury trial on "fair use" to be ordered. If he decides in favor, Oracle will certainly ask for the "fair use" issue to be resolved sooner rather than later, though Google would presumably want an appeal to happen before a retrial. And the appeals court might decide that Google's "fair use" defense can be dismissed as a matter of law (i.e., without a jury), in which case the need for a future jury would be limited to damages and disgorgement issues.
This case isn't primarily about damages. It's all about Oracle's strategic goal to "bring Android back into the Java fold". Damages can't accomplish that -- only a technically impactful injunction can.
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