As it continues to deliberate in the high-profile court case pitting Google against Oracle, a San Francisco jury has asked the court to clarify who exactly uses the Java software platform at the heart of the case.
On Thursday, the third day of deliberation in the first phase of the trial, the jury returned to the courtroom to ask Judge William Alsup if the "average audience" for the Java platform on Google's Android operating system was the general public or programmers who build applications for the mobile OS. The question indicates that the jury is trying to determine whether any copyrighted material lifted by Google would have run afoul of the law.
In response to the question, Judge Alsup ruled that the average audience was limited to people who could actually read software code. This would seem to favor Oracle, as the jury is must determine whether any copyrighted material would be noticed by the average audience.
In 2010, Oracle acquired Sun Microsystems -- the creator of Java -- and several weeks later, it sued Google, claiming the search giant violated its copyrights and patents in building a new version of the Java platform for Android. The trial kicked off on April 16, and since Tuesday afternoon, the jury has been trying to reach a verdict in the first phase of the trial, which covers the claims of copyright infringement. The patent claims will be addressed in the second phase.
At one point, the jury asked the judge to clarify what constitutes "fair use" of a copyright, and this question -- like the question on the audience for Java on Android -- shows that the jury is trying to determine whether the effect of Google's actions were significant enough to break the law. It would appear that the jury is discussing whether any copyrighted material lifted by Google was "de minimis" or insignificant. If Google's behavior is ruled "de minimis," the company would be off the hook -- at least in the copyright portion of the trial.
"Copying is 'de minimis' only if it is so meager and fragmentary that compared to the work as a whole, the average audience would not recognize the appropriation," read Judge William Alsup's official instructions to the jury. "You must consider the qualitative and quantitative significance of the copied portions in relation to the work as a whole."
And now the jury is trying to decide who that "average audience" is.
Oracle claims that in building a new version of Java for Android, Google infringed on its copyrights by mimicking 37 Java APIs, or application programming interfaces, which are essentially a way for software applications to talk to the Java platform. But it also claims that Google copied nine lines of codes used by the Java platform.
Android has been open sourced. So, technically, anyone can download it and look at it. But Alsup indicated the average audience for the code was smaller. "I rather suspect the general public would not be able to read the source code," he said. "From the point of view of people that read software programs, that's the audience these works are directed to.... To me, we should define average audience over who would read these kinds of things. I can see all kinds of mischief if we were to come up with a different standard."
He then wrote up an official response to the jury's question. The final language agreed upon by both sides read: "The average audience means those who would be expected to read the copyrighted works."
As of 1:00 Pacific on Thursday, the jury had not reached a verdict, but deliberations were set to continue until 4 p.m. Their findings will only cover the "copyright phase" of the case. The two sides will then fight over whether Google infringed on two Oracle patents. If the jury believes Google infringed in either case, there will be a "damages phase," which will determine whether Google must pay Oracle for its infringement.
Correction: This story has been corrected to show that Judge Alsup's ruling favors Oracle rather than Google. Previously, it said that the ruling favored Google.
