As the jury deliberates its verdict in the copyright phase of Oracle's lawsuit against Google, both sides are watching for signs from the jury as to which way it is leaning. On Wednesday it might have given them one.
The jury has asked a few clarification questions of the judge since it began deliberating the case late Monday morning. On Wednesday, the jury asked a question about Google's "fair use" defense.
One of the four factors for determining fair use is whether use of the copyright work was commercial in nature, one of the jurors noted in his question, which was read in court by Judge William Alsup. Does commercial use, the juror wanted to know, "include so-called downstream revenue, i.e., expected advertising revenue from third parties or end smartphone users?"
In other words, the jury wants to know if it should take Google's mobile advertising revenue into account when considering its fair use defense.
The first question on the jury's verdict form asks whether Oracle proved at trial that Google infringed its Java copyrights. The second question asks whether, if Google did infringe, that usage was covered by the fair use defense.
The question could indicate that the jury has already decided that Google infringed Oracle's copyrights and that it has now moved on to the question of fair use.
With the jury out of the courtroom, lawyers for Oracle and Google tussled with the judge for a few minutes about how the question should be answered. Google wanted the judge to tell the jury it has enough information in its jury instructions to decide that question already, but Alsup disagreed.
"That phrase [commercial] contemplates both direct and indirect uses," the judge told the jurors when they were brought back into the room.
They then left the room to continue their deliberations.
The question isn't necessarily an indication of which way the jury is leaning and it has other factors to take into account. The verdict form also asks if public statements from Sun Microsystems that were supportive of Android were enough to make Google believe it didn't need a license. (Oracle bought the rights to Java when it acquired Sun Microsystems in 2010.)
In addition, the jury's verdict won't be the final word in the matter. Alsup has yet to rule on whether Oracle's Java APIs (application programming interfaces) can be covered by copyright at all under U.S. law. If he decides they cannot, the jury's verdict in this copyright part of the case will be rendered moot.