This morning, Google and Oracle, with the permission of the judge, reached a stipulation, agreeing, among other things, to leave the question of damages out of the jury’s hands. As of now, the jury has found two counts of copyright infringement by Google, for nine lines of rangeCheck code and eight decompiled Java files. The jury couldn’t make a finding as to whether Google’s use of these materials amounted to fair use. While fair use is not a strictly defined concept, generally, factors include whether the use is of a substantial part of the copyrighted work and the effect of the copying on the value of the work.
However, the major allegation in the case – Google’s use of structure, sequence, and organization (SSO) of 37 Java APIs for Android – is still pending resolution by the judge presiding over the case, William Alsup, who stated that there is a question of law as to whether the SSO is even copyrightable. (The jury, which was instructed to proceed as though it was, has found infringement here too.) Both parties are expected to submit legal briefs with their arguments on this point.
As per the parties’ agreement, there will be no ruling on damages for the two counts of copyright infringement until Judge Alsup makes a determination as to whether the SSO is copyrightable. If the SSO is found copyrightable, the other damages will be determined at the new trial; if not, Judge Alsup will award statutory damages of $150,000 on each count. In either case, an appeal is certain to follow.
In the meantime, Google has filed a motion for mistrial, which, if granted, will allow a whole new trial and another chance for Google to contest the issue of infringement as well.
Meanwhile, the case has moved forward to deal with Oracle’s patent infringement allegations, with jury deliberations having started yesterday.
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