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Comment by nknight | Hacker News Reader

Unless they stipulated to something I missed, there's actually another very important issue on the table: Fair use.

The jury decided Google "infringed", but couldn't agree whether the fair use defense applied.

If Alsup rules APIs are not copyrightable, the fair use defense is moot and we're done (barring appeal, which will surely happen), but if he were to go the other way, fair use may have to be re-litigated in front of a new jury.

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Just saw this tweet from a journalist:

Dan Levine ‏@FedcourtJunkie:

We all just interviewed juror, who said jury was split 9-3 for google on copyright fair use. Um, wow.

https://twitter.com/FedcourtJunkie/status/205370887078285313

It's worse than that. At one point the fair use vote was 11-1 in favor of Google until the holdout persuaded two other jurors [1]. As you might guess, that same juror was the one that had to be persuaded to reach a unanimous patent verdict.

[1] http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202555835757&...

"Wow" is right. There's also this interesting gem right after: https://twitter.com/FedcourtJunkie/status/205371711233851392

> Juror said it was his opinion that more tech savvy jurors were less likely to go for limits on openness. Ie they were pro google

This really says it all. Ultimately Oracle can only win if the jury is borderline luddite.

Why is a 9-3 split particularly surprising?

Frankly, I didn't have much confidence in this jury. It was stacked to avoid techies, its findings on other copyright issues (e.g. rangecheck) didn't instill much confidence in me, and some of the questions that were emerging made me question their ability to understand complex issues and distinguish between basically being ordered to find infringement, and being asked to determine if it was really infringement.

If you'd asked me what the count was likely to be, I probably would have told you something like 10-2 for Oracle.

Being non tech savvy does not make you a luddite.

No, but it's getting pretty hard to argue that a randomly selected jury of Northern California citizens should be completely devoid of smartphone owners.

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