SAN FRANCISCO -- The jurors in the Oracle vs. Google trial seem to be inching closer to a verdict as they returned with another note at the U.S. District Court on Thursday morning.
This time, the question addressed the third out of four questions that the jury must decide upon unanimously, which are listed at end of the 21-page set of instructions.
That question reads, "Has Oracle proven that Google's conceded use of the following was infringing, the only issue being whether such use was de minimis," which refers to an item being so small or insignificant that it wouldn't count as infringement.
Also in reference to the instructions, the juror who wrote the question was concerned over who should be considered the "general audience" in this case when considering who could determine if something would count as copying or not.
Splitting hairs once again, Oracle's lead counsel Michael Jacobs quibbled briefly with Google attorneys Robert Van Nest and Bruce Baber.Full coverage: Oracle v. Google lawsuit
Jacobs suggested that the general audience should refer to an observer who is knowledgeable about the subject area. Van Nest and Baber argued that it should refer to basically anyone.
Judge William Alsup gave this one to Jacobs, saying he would instruct the jury to infer that the "average audience means those who would be expected to read the copyrighted works." In this case, that would mean anyone who can read the Java programming language.
Also up for debate were some additional financial documents concerning Android revenue that Oracle wants to present in case it comes to settling damages. Similar documents were originally sealed off from the case, but Oracle has found other ones with similar figures that it wants to provide as evidence now.
Essentially, Oracle is skeptical about reported losses associated with Android as well as how certain items -- especially related to engineering -- were expensed.
Although Judge Alsup questioned the validity of the documents, he ordered Google's team to produce more reports about Android expenditures from 2010 and 2011 by Monday.
Update No. 1 at 2:45 p.m. PT: The jury came back with another question -- this time about fair use again -- suggesting that they might be not be so close to a verdict and back at square one.
This time, the unidentified juror asked about transformative use, wondering if the jury could consider elements that Google engineers added to Android to determine the purpose and character of the structure, sequence, and organization of the 37 Java APIs at question in this lawsuit.
Judge Alsup pointed out that the jurors probably wouldn't reach this part unless they've determined something has been copied.
Unsurprisingly, Google's lawyers were absolutely in favor of instructing the jury to consider elements added to Android to prove fair use. On the contrary, Oracle rebuffed this.
As a potential compromise, Jacobs suggested not giving any further instruction at all, telling the jury that the "existing instruction already provides guidance."
Judge Alsup listened to both sides and then wrote out the following instructions while the courtroom remained silent:
In evaluating the transformative value, you may consider the noncopyrighted elements but only in so far as they shed light on the actual purpose and character of the use of the part of the copyrighted work used in the accused work. Of course, please remember to consider all of the factors outlined in paragraph 26. The Judge. May 3rd. 2:40 p.m.
Update No. 2 at 3:45 p.m. PT: The jury came back with another question, and this one suggests that we might be a long way off from a verdict -- if they can ever reach one on copyrights.
A juror asked, "What happens if we can't reach a unanimous decision and people are not budging?"
Judge Alsup pointed out that the question was not asked by the foreperson of the jury, nor did it explicitly say that the jury was in a deadlock. The judge proceeded to ask the lead attorneys from both Oracle and Google what they thought about it.
Van Nest seemed in favor of encouraging the jury to continue deliberating, while Jacobs was more cautious on how to play this, asking Judge Alsup about his experience in this regard.
Judge Alsup looked fairly determined to move the trial right along, suggesting that if the jury can at least find a partial verdict and agree on some of the questions, the trial could continue to phase two. Jacobs didn't offer much of a response on this, but Van Nest was soundly against the idea, suggesting that it could be "fatal" to the trial.
A tense situation in the jury deliberation looked even more apparent as the seven female and five male jurors entered the courtroom. When Judge Alsup said to the jury that they must be working hard, one juror groaned and said loudly, "I know."
The jurors weren't given much instruction in terms of the question, although Alsup did say that if the jury cannot ever vote unanimously, then the trial would continue to phase two. But the copyrights portion of the trial would need to be retried in the future with another jury.
On Tuesday morning, both legal teams met in the courtroom for a one-hour conference debating answers to jury questions concerning Google's use of Java APIs from Apache Harmony as well as Oracle's proposed witness list for the next segment of the trial, which will focus on patent infringement.
On Wednesday, the jury returned with more questions that pointed towards copyright infringement. Although the answer didn't entirely please Google's lawyers, Judge Alsup instructed the jury that they could consider both direct and indirect streams of revenue related to Android.
This story was first posted as "Oracle, Google lawyers split hairs over more jury instructions" at ZDNet's Between the Lines.