After days of deliberating, a San Francisco jury Monday found that Google and its Android operating system infringed the Java copyrights now held by Oracle.

However, the jury remained as deadlocked as it was last Friday over the issue of whether Google made so-called "fair use" of the IP. It couldn't come to a unanimous decision on that question.

Google denied all the allegations and claimed it developed Android from scratch and that the parts of Java it did use aren't covered by copyright.

After the verdict was read Google moved for a mistrial - which would mean a whole new trial and possibly new evidence - while the judge accepted the partial verdict and forged ahead.

The partial verdict says Google infringed the sequence, structure and organization of 37 Java APIs by using those APIs in Android. FOSS Patents figures that was the most important decision the jury made. The blog also figures there's really no "fair use" case here and is critical of the instructions given to the jury about fair use.

It said, "At a general level, the instructions almost suggested that ‘fair use' very commonly applies to unlicensed use, but any overreaching interpretation or application of ‘fair use' reduces copyright law to absurdity."

It didn't like "some of the definitions of the ‘fair use' factors, such as what does or does not constitute ‘transformative' use (again, the hurdle for ‘fair use' is actually a higher one than what the jury instructions made it appear to be. With better jury instructions, I believe the jury would have thrown out ‘fair use' unanimously."

Oracle has already asked for a judgment as a matter of law (JMOL) against fair use from the bench and Google wants one in favor of fair use. Judge Alsup also has to decide if the APIs are copyrighted.

The case has been divided into three parts. The same jury is now hearing the patent infringement side of the case, which has been reduced to only two patents. The damages phase comes last.

Oracle wanted $1 billion for its copyright claims, the strongest part of its case, and was hoping for an injunction. Without a decision on fair use that could be unlikely. And the patent part, even if proved, shouldn't fetch much. The infringement of nine lines of Java rangeCheck code, as the jury found, might merit $150,000 or less in statutory damages.

Oracle's lawyer reportedly said the copyright decision entitled Oracle to a share of Google's profits; Judge Alsup reportedly said that suggestion "borders on the ridiculous."

The Wall Street Journal called it a "muddled victory" for Oracle.

Google put out a statement saying, "We appreciate the jury's efforts, and know that fair use and infringement are two sides of the same coin. The core issue is whether the APIs here are copyrightable, and that's for the court to decide. We expect to prevail on this issue and Oracle's other claims."

Oracle had something to say too: "The overwhelming evidence demonstrated that Google knew it needed a license" for Java and that "every major commercial enterprise - except Google - has a license for Java and maintains compatibility to run across all computing platforms."

The jury found that both Oracle and Sun Microsystems before it made public statements that led Google to conclude it didn't need a license for Java but also found that Google failed to prove it "reasonably relied" on statements from Oracle and Sun executives. That opinion is an advisory one meant to help the judge make his decision.