Infringement signal or being thorough?

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

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 ZDNet 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 tuned!

Chris Mayer

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