Via Twitter, reports are coming on the partial verdict that the jury rendered today on the copyright part of Oracle v. Google. [Update] Here's the jury form: [/Update]12-05-07 Oracle Google Partial Jury Verdict on Copyright
The partial verdict holds Google to have infringed the sequence, structure and organization of 37 Java APIs through the use of those APIs in Android. That is the first part of the first question, and it's by far and away the most important question the jury had to answer at this stage. The Android documentation was not found to infringe the same APIs, and various smaller items, except for the nine-line rangeCheck function, were not deemed infringed. The latter makes no sense to me: there are code files in there that are much larger than the rangeCheck function, and infringement was so clear that it shouldn't even have been put before a jury.
The jury did not overcome the impasse reported on Friday as far as fair use is concerned. While there wasn't certainty about this, there were reasons to assume that fair use was the issue on which the jury couldn't agree, and now we all know that was true. In my opinion, there's really no "fair use" case here. There are different ways the court can deal with the jury's failure to agree on a decision on fair use. The most efficient way would be a judgment as a matter of law -- Oracle has requested a JMOL against fair use, while Google wants a finding in favor of its fair use defense, so both parties basically told the court that this can be decided by the court without needing a jury verdict. Alternatively, the fair use issue could be tried to a different jury. In that case, Oracle would probably get to present new evidence, particularly this blog post by James Gosling, the undisputed "father of Java".
Google's counsel immediately said that he wants the court to declare this a "mistrial", which would require a whole new trial. Google will file the related motion no later than tomorrow, arguing that a question (in this case, question 1) can't be answered in part (part 1A was infringement, 1B "fair use"). Judge Alsup wants to resolve this matter until Thursday.
In any event, the jury did not decide on API copyrightability. This one will have to be decided by Judge Alsup himself. The parties are due to respond to various copyrightability-related questions by Thursday, May 10.
No one knows, or will ever know, what the jury discussed behind closed doors and why it couldn't reach a consensus on how to answer the "fair use" question. I have from the beginning been critical of what the jury instructions said about "fair use". At a general level, the instructions almost suggested that "fair use" very commonly applies to unlicensed use, but any overreaching interpretation or application of "fair use" reduces copyright law to absurdity. I didn't like some of the definitions of the "fair use" factors, such as what does or does not constitute "transformative" use (again, the hurdle for "fair use" is actually a higher one than what the jury instructions made it appear to be. With better jury instructions, I believe the jury would have thrown out "fair use" unanimously.
While there's all this uncertainty now about how the trial will continue, Judge Alsup doesn't want to waste any time and immediately launched the patent phase of the trial.
Meanwhile, the parties have issued official statements:
"Oracle, the nine million Java developers, and the entire Java community thank the jury for their verdict in this phase of the case. The overwhelming evidence demonstrated that Google knew it needed a license and that its unauthorized fork of Java in Android shattered Java's central write once run anywhere principle. Every major commercial enterprise -- except Google -- has a license for Java and maintains compatibility to run across all computing platforms."
Google (according to The Washington Post)
"We appreciate the jury's efforts, and know that fair use and infringement are two sides of the same coin. The core issue is whether the APIs here are copyrightable, and that's for the court to decide. We expect to prevail on this issue and Oracle's other claims."
Google's reference to "two sides of the same coin" simply means that Google insists on this being considered a mistrial. Concerning the second sentence of Google's statement, it's true that the judge has to rule on API copyrightability, but he actually wanted the jury verdict to come in first.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn: