Google files for new trial on copyright claims in Android suit

The move, which was not unexpected, comes as the case's patent phase begins

Google is seeking a new trial on copyright claims in Oracle's intellectual-property lawsuit against it over the Android mobile OS, according to a filing made late Tuesday in U.S. District Court for the Northern District of California.

Oracle sued Google in August 2010, claiming Android violated patents and copyrights that Oracle holds on the Java programming language, which it gained control of through the Sun Microsystems acquisition. Google has argued that Android is a "clean room" implementation of the open-source language, and doesn't violate Oracle's rights.

This week, a jury delivered a partial verdict on the copyright claims in the case, finding that Google had infringed the "overall structure, sequence and organization" of the code in 37 Java APIs (application programming interfaces). However, it did not answer the question of whether Google's infringement was protected under "fair use" of copyrighted works.

Google's move for a new trial was not unexpected, having been foreshadowed in court after the verdict by its attorney, Robert Van Nest.

"Under settled Supreme Court and Ninth Circuit law, the jury’s failure to reach a verdict concerning both halves of this indivisible question requires a new trial concerning both questions," Google said in a brief accompanying its motion on Tuesday.

The court should declare a mistrial on both the copyright infringement and fair use questions, since doing so only regarding fair use would "violate the Seventh Amendment—both by threatening Google with a non-unanimous verdict on liability, and by having determination of the same factual question, or indivisible factual questions, made by two different juries," Google added.

Another layer of complexity lies in the fact that Judge William Alsup, who is overseeing the case, has yet to rule on whether APIs can be copyrighted at all under U.S. law.

Oracle had not yet directly responded to Google's motion on Wednesday, but in another filing late Tuesday, lawyers for the company addressed the fair use issue.

The lack of a verdict on fair use "means that, without some action by the Court and/or the parties, the trial cannot proceed to a final verdict with this jury," Oracle said. "Presenting the case to a second jury would be expensive, time-consuming and duplicative, and may impose a substantial additional delay."

Oracle made a number of proposals in the filing, including that both it and Google stipulate that the court decide the issue of fair use regarding Google's infringement of the APIs.

Should Google agree to this, Oracle would drop its claim for infringer's profits in connection with rangeCheck, a small amount of Java code that the jury found Google had copied, Oracle said. The court could then set statutory damages for rangeCheck, it added.

As an alternative, the parties could wait until the court rules on Oracle's pending motion for a judgment as a matter of law on the fair use matter, the filing added.

The patent phase of the case began this week. Should the trial proceed as originally planned, that segment will be followed by a third phase to determine damages.

Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris's e-mail address is

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