The fact that a jury couldn't make up its mind about a key question in Oracle's copyright-infringement case against Google could turn out to be good news for Google and the Android development community, according to legal experts.
A unanimous jury found that Google infringed on Oracle's 37 Java APIs, but they could not decide whether Google had made "fair use" of the infringing material in its Android mobile platform. As a result, the odds of a billion-dollar payday in Oracle's future -- at least in the near term -- are relatively low and the odds of a mistrial, requested by Google's lawyers today, being granted by the judge are relatively high.
We asked some legal experts to weigh in on the partial verdict and how the trial might play out.
"There is a dangerous potential outcome if we can start copyrighting APIs because copyright does not contemplate the protection of functional computer programming. It does contemplate protection of what you can create with the programming languages or programs like APIs," said Julie Samuels, staff attorney at the Electronic Frontier Foundation, which opposed Oracle's lawsuit from the get-go.
Oracle's lawsuit against Google focused on the question of whether application programming interfaces can be copyrighted. Google's position is that there can't be an ultimate determination on infringement until the fair use question is answered.
"If Google is found to have made fair use of the APIs then we'll never get to the question of whether they were copyrightable," Samuels said. "The judge needs decide whether copyright even applies to APIs...All these have to happen before Google is on the hook for copyright infringement. Once that happens we'll get an appeal and this could go on for years. This is really the heart of this case. It has far-reaching and dangerous consequences for all kinds of developers who use APIs everyday in their work and for those of us who rely on them in our computers and how we use the entire Internet."
But if Judge Alsup rules that the APIs cannot be copyrighted, as the European Union Court of Justice ruled last week, then fair use has no teeth.
Tyler Ochoa, a professor at Santa Clara Law School, called the decision "a bit of a mixed bag." "It's not a clear victory for either side," he said, offering several scenarios for what might happen next:
"There are two possibilities, one favorable to Google -- that they believe it was fair use...they were relying on copyright law. The other possibility (favorable to Oracle), is that they were determined to go ahead and do this anyway, regardless of whether it was copyrightable or not. That may explain why jury couldn't reach a verdict (on fair use). A third possibility -- and another way Google could still win -- [that the court finds that] the structure sequence and organization of an API isn't copyrightable at all."
That's the question the judge will have to decide, according to Ochoa.
"He may have been hoping not to have to decide that," Ochoa said. "He could have avoided it depending on what the jury did, but the jury didn't give him an out. If jury had found fair use -- or that Google relied on Sun's conduct, the judge could say it's okay. But the jury didn't give him that, so the judge is going to have to decide."
"Alternatively," he added, "the judge could grant a new trial on the issue of fair use -- or he could decide himself."
At this point in the case, Brian Love, a lecturer and fellow at Stanford Law School, gave the nod to Google:
"I would tend to agree with Google's position that there can't be an ultimate determination on infringement until the fair use question is answered, and if jury can't decide if what Google did was fair use then it can't say that what Google did was copyright infringement. Because if something is fair use, then by definition it can't be copyright infringement."
"Typically, you'd think a jury would say we're at impasse and the judge would say 'deliberate more, deliberate more.' I'm a little surprised that the judge let the verdict come down as it did. Think about all the cost and expense to put this trial on, and when a jury comes back and says 'we can't answer a question that's crucial to the case,' I think what's going to have to end up happening is what Google wants, which is that there would have to be a mistrial."
Echoing a comment offered by other legal experts, Love said he was unsure whether a final judgment could be rendered case without an answer on the fair use question, leading him to expect the judge to grant the mistrial motion.
As for the immediate future, Love said there could be additional proceedings on the copyright issue.
"I'm guessing that what will happen is that the case will continue on the patent issues and then we'll find out pretty soon on the copyright, and whether the last couple of weeks on the copyright proceedings has been all for naught...The more immediate question before Judge Alsup is whether copyright even applies to this dispute. If the judge decides no, then none of this really matters and Google can't infringe as matter of law."
But if Google convinces the judge to order a mistrial, Oracle is not left with an empty arsenal of arguments. In fact, says Miles Feldman, an intellectual property litigator at the firm of Raines Feldman, the jury decision gives Oracle a strong argument should there be a new trial.
"It's a very significant jury verdict in that the jury found infringement. They answered questions in a way that would indicate that they were not too impressed by the fair use defense. Google now has the opportunity to say that the verdict should be thrown out and a new trial granted. I think Oracle has very strong arguments that at least the questions answered by the jury should be kept and any retrial or additional issues, if they're necessary, would be the only issues tried. So the issue of infringement wouldn't be retried again. Fair use can be partial or complete defense to infringement."
"Oracle can hope that the infringement aspect stands and the issue of fair use can be the subject of a new trial. They will also argue that the issue of fair use can be decided as a matter of law, but that will be hotly contested. It's typically a mixed question of what we call 'law' and 'fact.' The judge decides law and juries typically decide questions of fact. The big takeaway is that the jury, after hearing everything, found infringement. That's huge. And that finding was unanimous."