SAN FRANCISCO -- If the Oracle v. Google trial wasn't a mess before, it has certainly evolved into a tangled, tangled web at this point.
It's becoming more about what the judge has to decide rather than what the jury must decide, including if APIs are copyrightable, Google's motion for a mistrial on phase one dealing with copyrights, and putting off the third phase on damages altogether. Given that we're still waiting for decisions on all of these things, the schedule and future of this trial becoming increasingly unclear.
Legal teams from both sides of the courtroom met in front of Judge William Alsup in an afternoon hearing without the jury on Tuesday to discuss motions heading into phase three of the trial, which would focus on damages.
Representing Google, attorney Daniel Purcell stated that Oracle was already looking to call Google CEO Larry Page and executive chairman Eric Schmidt back to the stand -- possibly as soon as Wednesday. That's because if the jury manages to reach a unanimous verdict by tomorrow finding patent infringement occurred, then there is the potential that we could go straight into phase three immediately.
Therefore, Purcell argued that it might be impossible -- let alone unnecessary -- to call Page and Schmidt in on such short notice. On this point, Alsup didn't seem to care about the timing, responding that if they're subpoenaed, then they need to show up regardless given the size and importance of this lawsuit.
However, Alsup followed up by saying that he wouldn't understand why Oracle would call upon them over the nine lines of code in the rangeCheck method that were found to be infringed upon by Google in the first verdict of the trial. Since that time, the court has also overturned one ruling to now favor Oracle and that Google's conceded use of the English-language comments in the Java test files are also in violation of copyright infringement.
Nevertheless, Alsup maintained his opinion throughout the hearing that Oracle is "going on a fishing expedition" with the damages phase if it really wants to go after infringer's profits instead of just statutory damages.
Oracle counsel David Boies tried to convey to the judge that there is no precedent for limiting the plaintiff to statutory damages and prohibiting them from going after infringer's profits.
"There is no case, none, in which there has been proven a product that was containing copyright infringed materials that was distributed and revenue generated and recorded by the defendant where it had been held that the burden is still on the plaintiff to go forward," asserted Boies.
Boies acknowledged that "nine lines of code is a small percentage," but he posited that the test files are much more substantial -- even if they're not included in the current version of Android.
"This is not a case, not a question of how large the damages are," Boies said, arguing that it is a question of whether or not Oracle should be precluded as a matter of law from seeking infringer's profits just because the infringed material is small.
Furthermore, Boies argued the nine lines of infringed code in the rangeCheck method and the test files benefited Google in several ways, including accelerating the time frame in which Android could be released in 2007.
"They want to argue that somehow this court ought to say that if something is small, you don't get any infringer's profits," said Boies about Google. "It gives them a free pass on these things they deliberately copied."
Judge William Alsup warned Boies that if Oracle fails in phase three to prove to the jury that it deserves infringer's profits for the infringed copyrights -- and if it loses on counts in the patent phase of the trial -- Oracle would end up without anything at all.
Boies acknowledged this to be true and responded, "We think as a matter of principle we're entitled to infringer's profits."
Boies continued by asserting the law only requires the plaintiff, Oracle, to demonstrate there was a product that infringed copyrighted material and then generated revenue.
"Once we have done that, I believe the burden shifts to the other side," Boies posited, adding that even if he is wrong about that, he thinks it's still possible to prove that Google used the copyrighted intellectual property just to release Android faster.
Nevertheless, Alsup slapped down that defense, remarking that is "not a good argument." Admitting that he knew nothing about Java before this trial started, Alsup said that he has since learned how to write enough code leading him to believe that anyone could have written the nine lines of code in the rangeCheck method.
"The idea that somebody copied that in order to get to market faster when it would be just as fast to write it -- it was an accident that it got in there," Alsup told Boies. "You're one of the best lawyers in America. How could you even make that argument?"
Boies maintained it's still the principle of the matter that is relevant here because the code was important to Google for releasing Android.
"I think we're still entitled to make a case for infringer's profits," Boies reiterated.
In the end, Boies backtracked altogether, possibly grasping for straws and reopening the door for Oracle to accept statutory damages instead.
Boies proposed to the court that if Alsup rules that the 37 Java APIs from phase one are actually not copyrightable, Oracle will accept a roadmap leading to statutory damages. The significance here is the payout potential is far smaller for Oracle as the maximum is $150,000.
Alsup said earlier on Tuesday that he would likely not rule on the matter of copyrighting APIs until at least next week. Oracle also wants to delay the copyrights damages hearing until this can be determined.
Due to his courtroom schedule, Alsup refrained from making a ruling on the current motion about the damages phase on Tuesday afternoon.
However, Alsup did order that Oracle should submit "a detailed offer of proof as to nexus," explaining the correlation of the test files and nine lines in rangeCheck with infringer's profits by 9PM PDT on Tuesday evening.
This item first appeared on ZDNet's Between the Lines blog under the headline "Judge warns Oracle could end up with nothing in IP trial."