Jury Has Fair-Use Questions in Trial Over Google Android

SAN FRANCISCO (CN) - Jurors may be nearing a verdict in the copyright trial between Oracle and Google after asking the court to clarify questions about fair use Tuesday.

Both questions from the jury - in its first full day of deliberations - can decide if copyright infringement occurred by considering other nonlicensed uses of Oracle's Java platform.

Google contends that it took 37 application programming interfaces (APIs) from Apache Harmony, which the company claims is open source and free to use under the fair-use clause of U.S. copyright law.

Oracle, which acquired Java when it bought Sun Microsystems in 2010, claims that Google infringed both copyrights and patents it owns on the technology when it used the codes for the Android operating system.

U.S District Judge William Alsup instructed the jury Monday that there are several ways they can decide the complex case. The jury may find that Oracle proved that Google infringed on the overall structure, sequence and organization of the 37 Java API packages, or that the tech giant's use of the codes constituted fair use. The same is true for the documentation for the packages.

If the jury finds that Google's actions constituted fair use - which was Google's burden to prove - it is up to Alsup to decide whether the jury's fair-use decision means the APIs were dedicated to the public domain.

The jury must also gauge infringement in the Android's range-check function, which had nine lines of code identical to that of Java, considering whether the use was de minimis.

Finally, if the jury finds that Oracle's copyrights of the 37 APIs were infringed, they must also determine whether Google has proven that Sun or Oracle knew about the infringements and failed to notify Google that it needed a license. If the jury finds that to be the case, they must also agree that Google proved it relied on Sun or Oracle's silence in deciding to use the APIs.

Oracle attorney Michael Jacobs insisted that the jury not consider other companies' use of Java code, while Google's lead attorney Robert Van Nest countered that the jury should be allowed to consider "any and all evidence in record."

"There are two ways to look at copyright infringement - copy and substantial similarity," Van Nest said. "Apache's code was open source. Since the code is different in Android, it's clear it didn't come from Sun's source but from Apache. License or public dedication is for the judge to decide. Availability in regard to deciding whether infringement took place is for the jury to decide."

Jacobs fired back: "If they copied through Apache, that doesn't excuse their copying. So it's not proper to look at all evidence in the record."

Van Nest countered: "It's wrong to tell the jury they can't consider that Google copied from open source. All Oracle proved was similarity. The standard is comparing 37 to 166 [APIs]. It's wrong to tell the jury that can't look at all the evidence to determine infringement."

Alsup worried over adding too much to the jury's plate.

"The judge has to be very careful in responding to questions in order to avoid altering the instructions," Alsup said. "I have to try to answer their question without intruding into their deliberations."

"I should not be restricting their mental process," he added. "Juries do a good job, we can't restrict them in this way."

When the jurors entered the courtroom, Alsup told them: "Google makes no contention it had a license expressed or otherwise to use the structure, sequence, and organization of the 37 packages of the copyrighted work. This issue would be for the judge to decide in any event - as would be any question of dedication to the public domain."

"You main not presume that there was any such public dedication, as this would be an issue for the judge to decide. However, you may consider the evidence you have referenced in the question of whatever value you think it has on the issues that are for you to decide. Beyond this, the questions you have asked are already adequately covered by my instructions."

Jury deliberations continued Tuesday afternoon. A verdict on the first phase of the 10-week trial is expected any time. Phase II - patent infringement - will begin immediately following the verdict in the first phase.

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