OAKLAND, Calif. (CN) – A federal judge on Thursday ordered Google to turn over certain details of its revenue-sharing agreements with mobile device companies like Apple to Oracle.
As the two tech giants prepare to square off in a second jury trial of their long-running copyright dispute this spring, Oracle says it needs those details to assess damages against the Internet search titan.
In 2012, a San Francisco jury found Google used Oracle’s copyrighted Java code in its Android operating system, but the 10-person panel deadlocked over whether the code was considered “fair use.” U.S. District Judge William Alsup overruled the jury by deciding the code in question couldn’t be copyrighted at all, a decision that was overturned on appeal.
A new jury is expected to decide whether the Java code is fair use this May.
During a Thursday hearing in Oakland, Oracle attorney Annette Hurst argued that Google’s growing dominance in the mobile operating system market allows it to make Google the default search engine for Android phones.
Without its infringement of Oracle’s copyrighted code, Google would be forced to share revenue with more companies in order to make Google.com the default search tool for most mobile devices, she argued.
In a discovery letter, Oracle pointed out how Google CEO Eric Schmidt testified during the first trial that increasing search engine revenue was a primary reason Google decided to acquire Android.
“Mr. Schmidt’s testimony further established that, in addition to increasing the volume of search, Android also increased the profitability of mobile search advertising because Google’s control over the Android platform allowed it to share less revenue with third parties,” Oracle stated in its Dec. 23 letter.
Oracle seeks details on agreements from before and after Google launched the Android system in order to asses how much value the company gained from its infringing behavior.
Google attorney Robert Van Nest said the revenue-sharing agreements are highly confidential, irrelevant to the question of damages and that Google has already turned over reams of financial documents to its legal opponent.
“We object to turning the agreements over,” Van Nest said. “Apple will be in here seeking a protective order. These agreements are confidential for them.”
U.S. Magistrate Judge Donna Ryu told Van Nest he can challenge the admissibility of evidence in a Daubert motion before trial, but at this stage the judge said she was inclined to grant Oracle’s request for discovery with extra conditions to protect the confidential nature of the contracts.
Hurst agreed to limit the request to agreements with non-Android mobile platform companies from approximately 2003 to present.
Ryu suggested Google provide a chart detailing the amount and percentage of revenue shared with each company in those agreements along with services covered by each agreement. She said Google could exclude the names of specific companies in that chart to protect its business partners’ proprietary information.
The judge agreed with Hurst that because Google refuses to reveal the names of the companies, it cannot later rebut Oracle’s damages claim by differentiating between agreements with the various businesses.
However, Van Nest continued to object to providing a more detailed list of services covered in each contract despite Hurst insisting those details were necessary to defend the validity of her client’s damages assessment.
The Google attorney said he would work with Hurst to negotiate an arrangement that would allow him to supply the chart without a detailed list of services covered in each contract.
In exchange for not listing specific Google services for each agreement, Van Nest said he would pledge not to challenge Oracle’s damages assessment by asserting that certain services covered in the contracts are irrelevant. Because Oracle won’t see the specifics, Hurst argued it would be unfair for Google to use that concealed information as a basis to rebut the damages claim.
Both attorneys agreed to hash out the details of their compromise and submit a proposed discovery order to the court by Jan. 19.
Earlier this week, Judge Alsup also rejected a motion to overturn a prior ruling denying Oracle’s request to make Google turn over more than 17,000 documents that were identified as privileged attorney-client material in 2011. Alsup found the request “untimely.”
The second jury trial to determine whether the Java code borrowed by Google was considered “fair use” is set to begin on May 9, 2016.
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