If there's one thing the Oracle vs. Google trial hasn't been short of, it's plot twists and turns. The trend continued today courtesy of Oracle counsel David Boies, who made a principled plea to Judge Alsup over what he felt Oracle was entitled to seek for Android's copyright infringement of Java — before proposing an alternate solution that could have the third phase of the trial postponed for weeks, if it happens at all.
The situation stems from the jury's partial verdict in connection with Google's infringement of 37 Java APIs. "Nobody thought the jury was going to hang on fair use," Boies told Alsup, referring to the jury's partial verdict last week. It's left the company with only two infringement victories to its name, neither of which are very substantive. The contributions of nine lines of rangeCheck code and eight test files are so small, in fact, that Judge Alsup has been leaning heavily on Oracle's legal team to accept statutory damages, calling the pursuit of hundreds of millions of dollars "the height of ridiculousness" last week.
Boies said that while the company may not be going for figures that large, it did feel it was entitled to a portion of Google's Android revenues, and had to make a stand to fight for it — even though if it lost, Oracle would receive nothing for the counts. While Oracle had thought about settling for statutory damages — it could be awarded a maximum of $150,000 per count — he said the company had declined to "as a matter of principle," wanting to send a message to other companies instead.
Judge Alsup said he's spent time coding himself
Judge Alsup took Boies to task, telling him he didn't think Oracle would be able to demonstrate how the related code helped Google enough to warrant damages. In fact, Alsup revealed that he has spent time coding himself, and that he could personally verify the nine lines of rangeCheck woud take "five minutes" to put together. Boies, however, then offered a compromise, suggesting that the copyright counts be set aside until Alsup ruled on the biggest outstanding issue of the trial: whether the structure, sequence, and organization of the 37 Java APIs could be copyrighted in the first place. If Alsup rules that they aren't, Boies proposed, Oracle would then take statutory damages and move on (likely to an appeal). If Alsup ends up ruling that the SSO is protected, however, then Oracle would send all counts to the jury for damages together.
Oracle's thinking about the long game
There's a certain amount of positioning going on here; the amount of damages Oracle is currently looking at are so insignificant that it needs to worry about the long game. Fighting hard over its intellectual property at this point, even if its ends up losing, saves a certain amount of face and demonstrates to any future juries or appeals courts that Oracle is sincere in believing its work was taken unjustly. On the flip side, sending the possible SSO infringements to a jury buttressed by the rangeCheck and test file counts could only help raise the overall dollar amount the company eventually receives.
While Alsup has practiced steady diligence with most of his decisions in this case, deciding on this one would require a bit of a rush. The jury is already in deliberations on the patent phase of the trial, and should they return a verdict tomorrow the case would need to proceed to the damages phase immediately, whether Alsup and Google have agreed with Oracle's proposal or not. Complicating it even further, Boies framed today's offer as an on-the-spot proposal, claiming he hadn't yet consulted with his client.
The judge seemed receptive, assuming both Oracle and Google could reach an agreement on how to move forward. He's asked the legal teams to draft a joint two-page statement covering how things should proceed if such a plan were to go into effect, but in the meantime is requiring Oracle to submit a brief specifying how it thinks it can link the two minor infringement counts with Android's success. With both Larry Page and Eric Schmidt on Oracle's proposed witness list for the damages phase, we're certainly anxious to see what new Android revelations they might bring to light, but one thing is for certain: even if the damages phase doesn't happen, there will be no shortage of dramatic developments.