Judge William Alsup Wednesday refused to decide whether Google had fairly used the Java IP a jury found Android infringed Monday.

There are, you see, circumstances that allow copyrighted work to be copied without the owner’s consent such as creating something new that advances the public interest but the jury deadlocked on that issue and returned only a partial verdict.

Oracle hoped the judge would intervene and hand down a judgment in its favor as a matter of law since Google’s liability depends on it but he refused.

He reportedly said, “I don’t think it would be right to rule in favor of Oracle” at a hearing Wednesday.

His decision suggests that Google will get the new trial it’s asked for. “I hate to even contemplate the idea of another trial,” the judge was quoted as saying, “but if it comes to that, that’s the way it will have to be.”

It’s unclear whether a new jury would be asked to decide infringement as well as fair use like Google wants.

Judge Alsup also reportedly refused to throw out the jury verdict that Google cribbed nine lines of Java code.

He is expected to rule on the copyrightability of APIs and of course he has to rule on Google’s motion for a mistrial.

The existing jury is currently hearing the patent infringement phase of the case and has heard from folks like Android creator Andy Rubin as well as other engineers.