To Get a Big Award, Oracle Must Prove Google Stole Code Outright

By Darryl K. Taft  |  Posted 2012-05-07 Print this article Print

However, be that as it may, with the verdict returned as it has, some observers as well as Judge Alsup himself noted that Oracle's win would only be for statutory damages. According to this tweet from a ZDNet reporter in the courtroom, Alsup said: Unless the court can give a verdict on 1B in favor of Oracle, there's nothing except one line of statutory damages.

To get a big pay day from this case, Oracle has to show that Google stole Java outright. And fair use is key to that. The fair use doctrine has to be shot down in order for Oracle to show that Google willfully infringed on its copyrights and patents. And with willful infringement, Oracle would be eligible for triple damages from Google. Alsup hinted that he believed evidence of willful infringement by Google was strong earlier in the trial.

In a post about fair use from May 6, Florian Mueller, an expert on technology patents who has been watching the case closely, but who also took a position as a consultant to Oracle, said:

"There's consensus among observers of the Oracle vs. Google Android/Java trial that the jury has most likely identified infringements but hasn't yet reached unanimity on Google's 'fair use' defense. Google's counsel was initially opposed to a partial verdict, though it appears that he would now accept one. But he didn't want the judge to ask the jury foreman whether the vote on the remaining question was 'close.' Google can probably figure that the evidence for willful infringement and against 'fair use' is overwhelming, but [former Sun CEO] Jonathan Schwartz' testimony might have had just enough of an effect that a minority of jurors doesn't want to consent to a finding that would be very likely to result in Google being found liable."

And in a follow-up post today, Mueller wrote: "In any event, the jury did not decide on API copyrightability. This one will have to be decided by Judge Alsup himself. The parties are due to respond to various copyrightability-related questions by Thursday, May 10."

Meanwhile, as soon as the jury finished entering its partial verdict on the copyright issue, Alsup moved directly to the second phase of the trial to focus on patents. Phase three of the trial will deal with damages.

In a brief period of courtroom drama, one juror was reported to have spoken to the jury about a conversation with her husband who holds three patents. The judge brought the juror out and determined that all she had gleaned from her husband was the shelf life of a patent. The judge then brought the full jury out and asked if they had been swayed or influenced by the juror's comments. They said they had not, so he sent them back to continue deliberating.

Darryl K. Taft covers the development tools and developer-related issues beat from his office in Baltimore. He has more than 10 years of experience in the business and is always looking for the next scoop. Taft is a member of the Association for Computing Machinery (ACM) and was named 'one of the most active middleware reporters in the world' by The Middleware Co. He also has his own card in the 'Who's Who in Enterprise Java' deck.

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