Jury questions in Google-Oracle trial hint at copyright infringement

Jury questions in Google-Oracle trial hint at copyright infringement

Summary: The jury returned with more questions in the Oracle-Google trial, which suggest that they could be on the road to finding for copyright infringement.


SAN FRANCISCO -- The jury in the Oracle-Google trial returned without a verdict yet but with more questions at the U.S. District Court on Wednesday morning. Yet the nature of their questions suggest where some the jurors might be thinking.

CNETOracle tries to rewrite Sun history, alter Java's future

Both questions this time focused on fair use and Android revenue. Specifically, one juror asked if "the definition of commercial use is limited in this case by virtue of Android being freely distributed," adding if that means because it is not sold directly or if they could consider indirect revenue from the mobile platform.

Oracle's lead attorney Michael Jacobs asked Judge William Alsup to answer "directly and crisply" with yes or no answers. More pointedly, Oracle wants to be as specific as possible in answering these questions and that indirect revenue from Android should be considered a case of commercial use -- not a fair one.

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

Google's head lawyer Robert Van Nest objected, explaining that "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," said Van Nest, urging the judge to give a more general response to the jury.

Jacobs rebutted, asserting from closing statements that Google didn't argue that the use of the 37 Java APIs was not commercial, but only transformative.

"We're splitting hairs here and trying to put too fine a point on it," Judge Alsup responded wearily, proceeding to call the jury back into the courtroom.

"I try my best, but there are traditional limitations on what a judge can say at this point," Judge Alsup told the jury. "It's important whenever you hear an answer like the one I'm about to give you to remind you that there's an entire paragraph, and you don't want to give undue weight to anything."

Giving a crisp answer as Oracle's counsel requested, Judge Alsup kept things short for the jurors with a single response to their questions.

"With respect to the first factor that calls out the purpose and character of the use, that phrase contemplates both direct and indirect uses," Judge Alsup instructed simply, immediately adding that the jury could return to deliberations.

After asking both sides if there were any further matters, neither attorneys had anything else to discuss --although Jacobs did look more pleased than Van Nest at the end of proceedings.

Judge Alsup concluded for now, "We'll continue right along. Stand by."

The jury began deliberating on Monday afternoon after lawyers from both Oracle and Google offered their closing statements for the first segment of this trial.

On Tuesday, both legal teams met in the courtroom for a one-hour conference at 10AM PDT, debating answers to jury questions concerning Google’s use of Java APIs from Apache Harmony as well as Oracle's proposed witness list for the next segment of the trial, which will focus on patent infringement.


Topics: Hardware, Google, Mobile OS, Mobility, Open Source, Oracle, Security, Smartphones, Software Development

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  • more signs that oracle will lose

    the jury loves the free nature of android.
    The Linux Geek
    • Human nature: While we do love the idea of "free".

      We loath the idea of theft. A thief gets his/her stuff with minimum effort and takes maximum reward... People just don't like the idea of their efforts going towards the benefit of another who hasn't worked for it.

      Pagan jim
      James Quinn
      • Nor of them being taken without permission which is what google did.

        I think it's obvious to even the casual observer that they decompiled or otherwise obtained sun code and built the android libraries from it. No cleanroom BS here. I dont think anyone believes that you get character for character matching code, including comments, from any cleanroom. Ditto for having to "scrub" anything out of cleanroom code. And then there's the obvious guilt ridden evasiveness during the google exec testimony, Page worst of all. But I can understand his, it's Rubin's that's baffling. He obviously starting out trying to do the right thing and knew they needed licenses. His pathetic sell out performance dropped his future post google credibility in the entire tech world to zero.
        Johnny Vegas
      • but...

        can you steal something that's free?
        The Linux Geek
      • Explain this then

        What is reverse engineering which is legal in the USA and started the entire "IBM PC Clone" revolution?
      • Reverse Engineering Is Not Copyright Infringement

        Reverse engineering is not copyright infringement. Reverse engineering has always been legal in the past, and APIs have never been copyrightable in the past. Why should this change just for Oracle's sake?
      • What 'Character for Character' Code?

        @Johnny Vegas
        Please point to an example of "character for character matching code, including comments." If any such evidence has been presented, I haven't seen it.
      • CFWhitman: Yes, exactly. There is none.

        Google made sure of that even tho there was a test env of decompiled code so they could compair to their own code.
      • Huh?

        WTF are you talking about? Remember when Sun Open Sourced Java 2 and used all types of Free Developers to get the code where they wanted it to be?

        Yeah, now Sun is bought by Oracle and they take the hard free labor of others only to screw people over who want to use it! You're right when you say they're trying to get maximum reward for minimum effort.
    • That doesn't even contribute to the discussion. Back under your bridge!

  • Yes, as the Judge instructed the jury before

    They must deliberate assuming that APIs are copyrightable (which they are not). It is a no-brainer that to have a functioning program one MUST adhere (copy) the APIs, therefore it cannot be separated from the language in this case (or any case). SO, judge will then overrule the jury on this matter. Oracle still loses.
    • Ummm...are you sure about that?

      Florian Mueller (yeah, that FOSS patents guy) says that APIs ARE subject to copywrite:


      ...and have been for 20 years.

      I dunno, maybe you're a smarter lawyer than him, but to me the jury's question pretty clearly indicates Google is going to lose here on the bottom-line finding of infrngement. Whether that loss turns out to be substantial or insubstantial appears to be the only question at this point.

      But it makes you wonder if they're having second thoughts in Mountain View now about their "Damn the torpedoes, full steam ahead" decision re Android OS development.
      • Florian Mueller is 20 years behind (bless his heart)

        The Judge in this case is withholding judgement in a couple of areas untill the jury comes back. API is one of them. SSO is another.
      • Not exactly.

        The publicly addressable framework to the API is generally accepted
        as NOT being protected by copyright (methods and properties) while
        the code BEHIND those methods may indeed be so. There are many ways to get the same results, but in many cases you will have people
        come to the same conclusion independently. It all depends on how complex the methods are.
      • richard233: That's exactly right

        There is only de minimis and fair use of the implememtation of the APIs which as any programmer knows are essential to execution. Our laws have not caught up with reality. Yet. What we have here is a classic case to show the weakness of the copyright system re:computer language implememtation.
      • Mueller conflicted

        Mueller is NOT a lawyer and is not trained or qualified in any of the fields he writes in. Although he does love to give that impression to the naive and uncritical reader. He is also well-known for his anti-Google bias - do some searches, it will take only a few seconds to find well documented instances of this. In addition he is hopelessly conflicted - separate from the anti-Google bias (which seems either innate or personal) his commercial interests taint everything he says in the smartphone field. Since last year he has been paid by Microsoft for opinion and analysis on this segment. And recently he is now being paid by Oracle itself for similar. The discussions over his financial consideration from them appear to go back a long way, perhaps even predating Oct 2010 when this case got under way. Oh, and this isn't just speculation, he has admitted to the MS and Oracle deals publicly.
      • Then Why Haven't All the Reverse Engineered Systems Been Violations?

        APIs themselves have never been copyrightable. It's true that the code that implements an API could conceivably be copyrightable if it's complex enough. However, it's quite possible that code for implementing the same API could be written by two different people and end up quite similar because it's not complex enough to create differences.

        If APIs were copyrightable then there would have to be some kind of violation in the world of CP/M, MS-DOS, PC-DOS, DR-DOS, and FreeDOS. Yet no copyright infringement case ever happened. Also, compatibility layers like Wine would be open to copyright infringement cases. I'm sure there are a lot more examples of cases that never were. APIs have never been copyrightable and it's a bit late to change that now.

        Incidentally, Florian Mueller is paid to have an opinion in line with what the people who hire him want. He's not an unbiased source. He's written a lot of what amounts to complete nonsense from a legal standpoint in the past.
      • Florian Mueller is not neutral

        He is on Oracle's payroll for this case!
      • Florian who???

        Aah, Oracle paid consultant...

        Right, his view is very objective! I think even more objective than Larry's. :-)
        Solid Water
  • Not that this is gonna change Johnny Vegas' mind but

    From Groklaw.com = "The EU Court of justice has just ruled in SAS v. WPL, that you can't copyright a computer language or computer functionality." What this means to the present case is nothing. However, it is a rational interpretation to the madness that has become of our copyright/patent litigation here. EU ain't gonna go along and it could mean that it might be more difficult to do biz there for Oracle like orgs.