The U.S. Supreme Court has been sending up some smoke signals in the copyright showdown between Google and Oracle. And they're forming clouds over Oracle's position.

Google v. Oracle is a 10-year-old battle royal in which Oracle is seeking as much as $9 billion over Google's unauthorized use of code from Java application program interfaces in its Android operating system. The case has gone through two San Francisco jury trials, with the second finding that Google's copying was a fair use. The U.S. Court of Appeals for the Federal Circuit ruled in 2014 that the code is copyrightable, and in 2018 that no reasonable jury could have found fair use.

The Supreme Court is reviewing both decisions. They'd been scheduled for argument last month but have been pushed back to the fall due to COVID-19 disruptions.

The first wisp of smoke came April 27, when the court issued Georgia v. Public.Resource.Org. Chief Justice John Roberts wrote for a 5-4 majority in that opinion that Georgia cannot block citizens, attorneys and others from copying and displaying the annotations.

"Some affected parties might be willing to roll the dice with a potential fair use defense," Roberts wrote. "But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial."

This observation seemed nonessential to the decision. The words "fair use" appear nowhere else in the majority or dissenting opinions. But the amount of deference that appellate courts must show to jury fact-finding is very much part of Google's fair use case.

That could be written off as a line of stray dicta. But on Monday, the court asked Google and Oracle to file 10-page supplemental briefs addressing "the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard."

The parties have already broached the subject in their merits briefs.

Although the Federal Circuit concluded in the first appeal that it could not decide fair use as a matter of law because of the fact-intensive nature of the inquiry," Google argued in its Jan. 6 brief, "the court took the extraordinary step in the second appeal of reversing the jury's verdict based on the court's own weighing of the evidence—an unprecedented action by an appellate court. In so doing, the court inverted the proper substantial-evidence standard of review."

Oracle argued in its brief that the Supreme Court, in its famous Harper & Row v. Nation Enterprises decision on fair use, described it as a mixed question of law and fact, and said that an appellate court "may conclude as a matter of law that the challenged use does not qualify as a fair use."

Google argues that the Supreme Court was referring to fair use cases decided on summary judgment. "Fair use jury trials are almost unheard of, precisely because fair use so rarely revolves around disputed facts," Oracle argues. "And a trial does not turn a legal question into a factual one."

When the case was last before the Federal Circuit, Judge Kathleen O'Malley wrote that the Supreme Court had described fair use as an equitable rule of reason, making it an issue for judges to decide. "That said, the Supreme Court has never clarified whether and to what extent the jury is to play a role in the fair use analysis," she wrote.

The parties have until August to file their briefs. Google is represented by Goldstein & Russell; Williams & Connolly; Keker, Van Nest & Peters; King & Spalding; and Kwun Bhansali Lazarus.

Oracle is represented by Orrick, Herrington & Sutcliffe and Kirkland & Ellis.