Comment: Re:Jury instructions (Score 4, Insightful) 475
Can you please return your geek credentials? The judge didn't tell the jury Google was guilty,
True. But on the point that the jury did find (that, before considering the fair use defense and assuming that APIs are copyrightable), the judge essentially directed the jury that Google had infringed. The jury instructions included both:
1. An instruction that, on the issue of the "API copyright" point, infringement should be found if the defendant had access to the copyright-protected work and the alleged-infringing work was substantially similar, and
2. A note that Google had admitted that the APIs at issue were substantially similar to those that the jury was instructed to assume were protected.
If Google admitted that the APIs were substantially similar, then the instruction was perfectly correct. Why should the jury not be reminded that a party admitted an essential element of a judgment of infringement?
The grandparent wrongly attributed the request for a mistrial to the content of the jury instructions. That is not why Google is asking for a mistrial in the copyright phase. Google essentially argued that APIs are not copyrightable (question of law for the judge to resolve, as you touched upon) and that even if the APIs were copyrightable, the use was fair use (question of fact for the jury to resolve). In order for fair use to be relevant, there has to be a prima facie case for copyright infringement. As I understand it Google has conditionally admitted that there is such a case, and raised its fair use defense. The request for a mistrial is due to the fact that the jury did not resolve the key question before it -- was the copyright infringment (if the API is protected by copyright) excused as fair use.
If the jury hangs on a key judgment, it is normal to request a mistrial since the question must be resolved by the jury (absent settlement or agreement by the parties to convert the issue to one to be resolved by a bench decision). A hung verdict does not tranlate into either "guilty" or "not guilty" (in the terms of the discussion -- there is no finding of "guilt" as such in a civil case). A new trial can be held and directed only to the copyright aspect at a later date (assuming no other jury-related issues arise), and the patent phase can proceed.