Infringement signal or being thorough?

Oracle vs Google – Copyrightability contention as media swarms on Android revenue jury question

Chris Mayer

Deliberation time has thrown up some interesting questions from the jury, but does this actually mean we can draw conclusion on which way the copyright case is going?

There’s never a quiet day in this Oracle vs Google case is
there? At the time of writing, the jury still haven’t come to a
verdict on the first phase of three on copyrightability, yet a lot
of column inches (and we include this piece within that) have been
devoted t speculating that the jury could well have found
infringement. It’s probably a good thing they can’t see the
external maelstrom surrounding the copyright of languages as it
would cause yet more complication.

As noted on
 and by the
IDG news service
, the jury returned on Wednesday morning with
several questions to ask of Judge Alsup, notably a question
surrounding Google’s ‘fair usage’ defence when building Android.
One juror asked if “the definition of commercial use is
limited in this case by virtue of Android being freely
distributed,” adding explicitly whether if they should consider
indirect revenue from the mobile platform.

This caused a bit of a scrum between Oracle and Google’s
lawyers, with the jury out of the room. Oracle’s lead attorney
Michael Jacobs asked the judge to answer ‘directly and crisply’
with a yes or no answer.

“All they’re asking is whether or not this evidence
can be considered for commercial use,” said Jacobs. “The answer is,
of course, yes.”

This led to an objection from Google’s head laywer
Robert Van Nest, proclaiming 
“the only proper
answer is to say that the questions are already adequately
addressed in the instructions.”

“I think that would be wrong to put any sort of hand on the
scale, your honor, of what particular evidence they can and cannot
consider,” he added, begging the judge to consider a wider berth
with the question.

Realising that he had to be careful with his answer after a
series of rebuttals, Judge Alsup said:

With respect to the first factor that calls out the
purpose and character of the use, that phrase contemplates both
direct and indirect uses.

So this means any revenue obtained from Android It is key to
note that the original question should never be an indication of
which way the jury is leaning here. If anything, we should take it
as the jury being thorough with their deliberation. On Tuesday,
questions were fielded over Google’s use of Java APIs in the Apache
Harmony project. It’s of paramount importance that the jury gets
every aspect clear in their mind before giving their verdict, as
any jury should. It might indicate that Google have committed
infringement, but then again it might not.

Either way, Judge Alsup casts the final stone, as he
has yet to rule on whether Oracle’s Java APIs can be
covered by copyright at all under U.S. law. If they cannot, the
jury’s verdict is null and void. 

Tenuously related to this is the announcement that the European
Court of Justice rule that software languages cannot be copyrighted
– according to
Florian Mueller
, Google have attached the ruling for Alsup’s
attention. This is pretty irrelevant since we’re dealing with US
statutory law and as Mueller points out:

I don’t see a need to go into too much more detail
on yesterday’s EU ruling. I’d just like to point out that it has
nothing to do with EU software patents. Software patents exist in
Europe and they are enforced. Almost every single patent that is at
issue in the ongoing smartphone patent wars is a software patent if
the term is defined broadly

Anyway, we should hopefully see some form of action
later on today, with the jury reportedly nearing a decision. Stay

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