Larry Ellison and Larry Page

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A jury has found that Google did violate Oracle’s copyrights when it used certain Java APIs in Android.But the jury couldn’t decide whether Google’s use of these APIs should be considered fair use. That’s a critical question, and Google is asking for a mistrial because they couldn’t decide.

The judge punted on that deadlock, and decided to move on to the next patent infringement phase of the trial immediately — without even a recess. The fair use question will have to be answered before damages can be calculated.

It’s technically a win for Oracle, although Oracle may not get any damages out of it. The judge said that, pending judgments as a matter of law, there is “zero finding of copyright liability” except for the 9 lines of code that Google apparently copied. After the verdict, with the jury out of the room, the judge also rejected Oracle’s claim for “infringer’s profits” from those nine lines, and said it was “bordering on the ridiculous.”

The jury was instructed to answer several questions:

“Has Oracle proven that Google has infringed the overall structure, sequence and organisation of copyrighted works?” (The “copyrighted works” are 37 Java APIs that Google used in Android.) YES.

If the jury answered Yes to that question, they were supposed to answer a second part of the same question: “Has Google proven that its use of the overall structure, sequence and organisation constituted ‘fair use’?” NO ANSWER.

Google immediately asked for a mistrial, arguing that a partial answer was unacceptable.

A Google spokesperson said, “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.”

Here’s what the jury said on the other questions:

“As to the documentation for the 37 Java API packages in question taken as a group, has Oracle proven that Google has infringed?” NO.

“Has Oracle proven that Google’s conceded use of the following was infringing, the only issue being whether such use was de minimis….” Here, the jury answered YES on one item, and NO on the other two…

So that’s it for now.



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