Jury Mulling Android Case Appears Unsteady

SAN FRANCISCO (CN) - A note from the jury in the Oracle-Google copyright infringement trial late Thursday signaled trouble for a verdict of any kind in the landmark case, but the tables could turn again Friday.

Indicating some trouble ahead, the jurors asked what would happen if they cannot reach a unanimous decision. U.S. District Judge William Alsup told the jury to continue deliberating to reach a consensus on as many points as possible. He also indicated that if the jury cannot reach a verdict on the copyright portion of the trial, he would begin the patent-infringement phase.

Oracle is suing Google for using portions of Java source code, which Oracle acquired when it bought Sun Microsystems in 2010, in its Android operating system without permission or license. Google does not dispute that it used some of Java's application programming interfaces (APIs), but claims that Java is open-source and that its use of the APIs was transformative and therefore not a violation of copyright.

Earlier Thursday, the jury asked a question regarding a portion of the verdict form involving de minimis copying, and asked what Alsup meant by "average audience" in his jury instructions.

After conferring with attorneys from both sides - a short and civil discourse compared with other questions from the jury this week - the judge told the jury that "average audience" involved those who read and understand source code.

De minimis copying is not infringement, which marks a possible win for Google. But Wednesday's questions regarding fair use and the commercial nature of Google's Android, and whether the jury could consider Google's "downstream profits" like ad revenue, showed a lean toward Oracle.

The rollercoaster continued Friday morning, as Alsup and attorneys mulled over options in the event of a deadlocked jury. Possible outcomes include mistrial, an entry of judgment on any unanimous verdicts or, if both sides agreed, changing the requirement from unanimous to majority.

"I think this is why Roosevelt refused to answer 'What if?' questions," Google lead attorney Robert Van Nest said.

Both sides posited suggestions backed by case law. Alsup seemed likely to push forward with the patent-infringement phase without a copyright verdict, but agreed to read the case law before making a final decision.

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