Thursday, May 3, 2012

Oracle-Google jury fairly likely to render copyright liability verdict today (Thursday)

It's always difficult, and admittedly a bit daring, to predict when a jury verdict will come down. It can take a dozen people any amount of time to reach a consensus, especially on technical and complicated issues. But two things that happened on Wednesday suggest to me that today, Thursday, is a very likely day for the Phase One (copyright liability) verdict in Oracle v. Google.

As the IDG News Service and ZDNet point out, a jury question relating to Google's "fair use" defense suggests that the jury may already have determined that Android infringes -- and the question now is whether that infringement was acceptable.

The finding itself is unsurprising. With all of the undisputed evidence on the table, and even based on Google's own representations and testimony, infringement is so obvious that there wasn't even a need to ask a jury about it (other than giving that jury a chance to familiarize itself with the nature and stature of the infringement, with a view to subsequent questions such as fair use in Phase One and damages in Phase Three). Google's own proposed findings of fact and conclusions of law (filed yesterday) focus on copyrightability (which I'll address in the next post), the "fair use" exception, and various equitable defenses.

In my opinion, the "fair use" part would be much easier to decide if Judge Alsup's jury instructions had made it clearer that copyright is the rule and fair use only an exception to the rule. The judge rejected Google's proposal to confuse the jury to an even greater extent by introducing a fifth fair use factor that would have come down to "anything goes". But in my opinion, the jury charge is misleading (in Google's favor) in the "fair use" area, especially (but not only) in connection with what is "transformative".

The first jury question to the court regarding fair use was whether indirect Android revenues (online advertising) supported a finding of commercial use, which the jury was accurately told cuts against fair use. The parties weren't able to agree because Google's lawyers didn't want to concede the undeniable, but Judge Alsup told the jury that direct and indirect revenues should be considered.

The jury may now be very close to a decision. Maybe it's already past fair use and just working on a couple of questions related to Google's equitable defenses.

The latest development is that Judge Alsup proposed, and the parties agreed, that Phase Two (patent liability) should start on Monday if the jury renders a verdict on copyright today, Thursday. In other words, the jury will get a long weekend in that event. Theoretically, the judge could give the jury a day off at any other point in time, but he really wants this case to be resolved soon, so I'm not sure he'd be equally generous when any other day of the week than a Friday is at stake.

[Update] The jury doesn't know about this. While the original version of this post stated that that "I d[id]n't know if the judge will tell the jury that a verdict today will be rewarded with a day off resulting in a long weekend", I now saw multiple tweets (from the live reporters on this public Twitter list) that the judge clarified he didn't want to offer any inducement to the jury for rushing things. His note was for the lawyers only. He criticized someone else's report for having claimed that the jury knew -- my blog post here never made that claim. [/Update]

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