For a few minutes it appeared that the jury was going to render a verdict on all but one of the copyright liability issues in Oracle v. Google today. The jury was brought back to the courtroom, but then a minority of jurors said that a unanimous verdict may be possible if they all get to think about this some more over the weekend.
The jury was sent home for the weekend, and will reconvene on Monday. Judge Alsup wants to seize this opportunity to reach a complete, unanimous verdict.
The judge would have liked to ask the jury whether the vote was close, but Google's counsel objected, and the question wasn't asked. It's not known on which of the questions the jury hasn't agreed yet, but since the fourth question on the special verdict form is only of an advisory nature, the judge clarified whether that one was the issue -- and it's not.
It's unknown which part of the first three questions poses the problem. Question 1 is about API copyright liability at the level of the code, question 2 about the documentation, and question 3 about various incidents of verbatim copying. In terms of what might be difficult for the jury to reach unanimmity on, "fair use" (since it's a multifactorial analysis) is a likely candidate, but it could also be any other issue.
In my opinion, fragmentation is not fair use. It's as simple as that. There are also many other reasons for which the "fair use" argument fails on the bottom line, and I'll address those in a different post, probably on Sunday. Apart from the "fair use" issue, it's absolutely not true that disregard for intellectual property in APIs is "industry practice", let alone "established" industry practice. But the jurors aren't software industry people. They heard testimony, including what Jonathan Schwartz said. James Gosling, the father of Java, stated clearly what to think of Schwartz' position, but by the time he said this, it was too late to be presented to the jury.
I'm going to do some follow-up reporting this weekend, especially on the "industry practice" topic. Monday will be an interesting day. In addition to the jury verdict in Oracle v. Google, there'll be a summary judgment hearing on Microsoft's claim that Motorola breached its FRAND-related contractual obligations by making blatantly unreasonable demands.
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