Reports from yesterday's Oracle v. Google court session (Bloomberg, IDG, ZDNet) indicate that Judge Alsup won't throw out Google's "fair use" defense by means of a judgment as a matter of law (JMOL) and believes it needs to be put before another jury at some point. Google doesn't even ask for a JMOL in its own favor at this stage (it previously tried and faild with that).
I don't doubt the accuracy of the reports, but it will he helpful to see at some point in which respects the judge believes there's a genuine dispute of fact that needs to be put before a jury. Many observers of this lawsuit believe that there will be an appeal regardless of who wins or loses. They might both want to appeal if different parties win on different counts. In the event of an appeal, any denial of a motion for JMOL can be reviewed. I believe Oracle is entitled to a JMOL against the "fair use" defense.
After the jury's failure to build a unanimous consensus on this issue, Google moved for a new trial of Questions 1A (API infringement) and 1B ("fair use"). At this point it's unclear what scope such a new trial would have. The fact that the judge doesn't want to decide against "fair use" without a jury doesn't mean he necessarily agrees with Google on the proposed scope of a new trial.
At yesterday's hearing, the copyrightability of the structure, sequence and organization 37 asserted Java APIs was also discussed. It appears that Judge Alsup challenged Oracle's position in many ways, but he's previously been a "devil's advocate" (also in connection with some of Google's non-copyrightability arguments, at least based on the reports I saw on the Internet). If the structure, sequence and organization of the asserted APIs are held copyrightable, fair use must be resolved, and in that case it appears that there would be a new trial (of a scope to be determined) unless the parties reach an agreement to let the judge decide on fair use. I doubt that Google would want to agree that "fair use" should be decided as a matter of law because it can hardly win on that basis -- and Google wants to get rid of the infringement finding.
The patent phase (Phase Two) of this trial started on Monday. Yesterday, Judge Alsup filed his proposed jury instructions and verdict form for this phase. He will discuss it with the parties today, Thursday.
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