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Thursday is Pearl Harbor Day, so what more appropriate occasion for Oracle and Google to renew hostilities over the Java API copyright? The tech giants will return to the Federal Circuit to once again argue whether Google's copying of 11,000 lines of code was fair use, as a San Francisco jury found last year. Orrick's Josh Rosenkranz is back for Oracle, while King & Spalding partner Daryl Joseffer takes over for Google from Keker, Van Nest & Peters.

What's that, you say? The last appeal was about copyrightability, not fair use? Go back and listen to the argument. Nearly half of was about fair use and whether that issue had to be resubmitted to a jury—which had hung on it in the first trial—before the appellate court could decide it.

Which is why I make the following prediction: The Federal Circuit judges will huff and puff and say there's no way on earth they personally would consider Google's copying a fair use. And then they'll affirm the jury verdict of fair use.

➤ Related: Five Takeaways From Oracle's Appeal of Google's Jury Win

Here's my thinking: The court has scheduled the hearing for the unusual time of 3 p.m. That suggests that at least two and maybe all three of the same judges who presided over the first appeal—Kathleen O'Malley, Richard Taranto and S. Jay Plager—will return. On the surface that's good for Oracle, since they ruled for Oracle on copyrightability and said Oracle's argument on fair use was “not without force.”

But that panel has already passed up the opportunity to rule as a matter of law. As O'Malley said at the first argument, “There was a lot of conflicting testimony about effect on the market, there was a lot of conflicting testimony about the amount of the use in connection with the overall structure of java as a whole. So why shouldn't we allow the jury to assess those questions?”

And in her opinion for the court, she wrote, “On balance, we find that due respect for the limit of our appellate function requires that we remand the fair use question for a new trial.”

Well, now the jury has spoken. And Oracle isn't challenging the jury instructions (though it does complain that Judge William Alsup excluded critical trial evidence). Oracle's bottom line from its opening brief is, “No reasonable jury with a proper understanding of the law could have excused Google's copying as a fair use based on the evidence presented at the second trial.”

Good luck with that. Last year the Federal Circuit pilloried three of its members for reversing a patent verdict on the “no reasonable jury” theory. O'Malley was among those voting to “affirm our understanding of the appellate function … as requiring appropriate deference be applied to the review of fact findings.”

Oracle's best shot may be its alternate argument: Google claimed at both trials that it transformed the Java APIs by using them in a mobile environment. But once Oracle rested in the second trial, Google announced that it was launching Android for PCs. “If a trial is to have any integrity, parties cannot exploit the exclusion of evidence by building a defense around a proposition known to be false,” Rosenkranz writes.

That issue is at least new to this appeal. The Federal Circuit could in theory say, “If we'd known about that the first time, there'd have been no need for a second trial.”

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