One of the tech sector's biggest upcoming trials—Oracle v. Google—careened Tuesday away from the hot-button topic of copyrighting application programming interfaces (APIs) and instead focused on the presiding judge's concern that the tech giants are setting up jurors to fail. US District Judge William Alsup believes it's all so the loser could challenge the verdict of the second upcoming trial set for May.

Judge Alsup said Tuesday that the tech giants jointly submitted a proposed questionnaire (PDF) for prospective panelists containing "so many vague questions" that "the loser on our eventual verdict will seek, if history is any guide, to impeach the verdict by investigating the jury to find some 'lie' or omission during voir dire."

Voir dire is the part of the case in which lawyers question potential jurors about their backgrounds and biases. And the case is being closely watched by the tech sector and developer community given the high stakes. Oracle is seeking $1 billion in damages after successfully suing the search giant for infringing Oracle's Java APIs that were once used in the Android operating system. A federal appeals court has ruled (PDF) that the "declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection." The decision reversed the outcome of the first San Francisco federal trial heard before Alsup in 2012.

A new jury, to be chosen for a May 9 Oracle-Google trial, will be tasked to decide whether Google has a rightful fair-use defense to that infringement. The Supreme Court has so far declined to intervene.

Oracle and Google jointly asked the judge on February 29 to extend jury questioning for two days. That's an unusual request because Alsup's normal jury picking procedure lasts less than a half day.

"The Court suspects that a real reason the parties wish to use the proposed questionnaire and its two-day (or more) procedure is to get the names of prospective jurors and their places of residence so that they may conduct extended Internet investigations on the venire prior to the oral voir dire procedure, all in an effort by jury consultants to run demographics against the pool and rank the potential jurors," the judge said. Alsup added that he would have nothing to do with that:

In short, no questionnaire will be used. We will use the Court’s usual voir dire procedure. We will use traditional safeguards to root out any bias. We will have a jury sworn in about three hours and then proceed to opening statements.

Jurors will be confronted with a Herculean task as they must decide a vague question in copyright law: does the doctrine of fair use apply in this case? The US Copyright Office says that defense to copyright infringement is decided on a case-by-case basis. "The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission," the US Copyright Office says.

Google maintains that the APIs should not be protected by copyright because they are necessary for interoperability and that APIs have fostered "innovation and competition" in the software industry. Oracle said it's a "win for innovation" when developers get paid for the intellectual property.