Following the jury's inability to decide on the issue of fair use in the Oracle vs. Google trial, Oracle asked the judge to rule on the issue as a matter of law (JMOL). Both sides engaged in oral arguments, but Judge William Alsup surprised the courtroom with an early decision, denying Oracle's request, saying that "it wouldn't be fair" given the evidence introduced in the trial.

While the jury found that Google had infringed upon Oracle's copyrights by using the sequence, structure, and organization (SSO) of the 37 Java APIs in question, it was deadlocked on whether Google was legally able to do so under fair use. Fair use is made up of four different components:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value of, the copyrighted work

The elements are taken as a whole, with no single one making or breaking the decision; it's a balancing act. However, despite Oracle pointing out the commercial success of Android — which would tend to weigh against a finding of fair use — it was clear that Judge Alsup wasn't inclined to side with the company. The judge even scolded Oracle counsel Michael Jacobs when he first argued his case, pointing out that the company's legal team had insisted on a jury trial and "now we got their verdict and you want something else."

The judge could make things even worse for Oracle

As for what's next, there's still much on the copyright side to be decided. The judge has yet to rule on Google's motion for a mistrial — something that became a little more likely today — and he has yet to decide on the overall copyrightability of the structure, sequence, and organization of the 37 Java APIs themselves. Ruling that the APIs are not covered would render today's decision meaningless, essentially throwing away the jury's earlier finding of infringement on the SSO issue. Judge Alsup said that if another trial does indeed end up being required — something he seemed loath to even consider — a better way to proceed would be to decide what portions can be copyrighted, and then determine fair use from there. Given the jury's indecision, this could end up being the best way to reach a decision if the case is retried (of course, several of the decisions and issues in the last few weeks will likely result in an appeal).

As for Google, after weeks of legal battle the company is now left facing just one count of infringement: the nine lines of rangeCheck code found in TimSort.java and ComparableTimSort.java. Google could have been found to have infringed on a total of five different counts; now it's been reduced to just the one, and with rangeCheck constituting such a small portion of Android's 15 million lines of code, any potential damages coming Oracle's way will likely be very small indeed. Of course, we're still in the thick of the patent phase of the trial, with the damages portion to follow. We'll be there to bring you the latest.

Matt Macari contributed to this report.