Google defends fair use of Java on Android in closing statements

Google defends fair use of Java on Android in closing statements

Summary: In closing statements, Google's counsel reasserts that Google used Java APIs in a fair use manner for Android, transforming them into a full smartphone stack.


SAN FRANCISCO -- After Oracle made its closing statements on Monday morning at the U.S. District Court, Google's Robert Van Nest stepped up to the plate, defending Android's implementation of the 37 Java APIs at question in this lawsuit.

See also: Oracle's closing arguments: Google is making excuses CNETJava creator James Gosling: “Google totally slimed Sun”

Van Nest's core defense rested on positioning this as a case of fair use, asserting that Android is not a copy of Java 5.0 SE but rather a "substantially" different work with different success in the market.

"It's a whole platform that didn't exist before and transformed the use of Java for a smartphone stack," asserted Van Nest.

Van Nest outlined four points to Google's position in this intellectual property suit:

  • Sun gave the Java language to the public
  • Google built Android using free and open technologies
  • Google made fair use of the Java language APIs in Android
  • Sun publicly approved Android's use of Java

"Copyright infringement requires that you copy something," Van Nest said. "There was no copying here because Google knew that it couldn't use Sun's source code."

Also on copyrights, Van Nest pointed to the jury's instructions about judging "the work as a whole," which actually consists of all 166 class libraries and all that entails (i.e. implementing codes, names, declarations, etc.) -- adding up to 2.8 million lines of code in Java 5.0 SE. Van Nest added that Oracle has to prove that it was "more likely than not that copyright infringement occurred."

"This kind of use of APIs in this way where you use the minimum you need to be compatible is fair use," Van Nest declared.

Additionally, a good portion of Van Nest's closing arguments was based on the testimony of former Sun Microsystems CEO Jonathan Schwartz last Thursday.

Although Schwartz acknowledged that Sun wasn't happy that it couldn't come to a partnership agreement with Google, Van Nest recalled that Schwartz did say that Sun supported Android's use of Java nor did it have any grounds to file a lawsuit.

"For years, Sun had been promoting use of Java programming language," Van Nest said. "That was their whole business plan."

Again pointing to Schwartz's November 2007 blog post in which he congratulated Google for the debut of Android, Van Nest reminded the jury that Schwartz knew Android was written in Java and must have included the Java APIs in question ahead of the SDK release.

"If that isn't an affirmative endorsement of a product, I don't know what is," Van Nest lambasted.

To further hammer down Sun and Oracle's previous support for Android, Van Nest reminded the jury about a video of Oracle CEO Larry Ellison at JavaOne in 2009, where Ellison said Oracle expected to see more Java devices coming from "our friends at Google," and that Google had done "a fantastic job" in opening up Java.

Although specifics about Android revenue and other financial matters have been banned from the presence of the jury in this trial, Van Nest reasserted the open source status of Android as a benefit to the developer community.

"The point is that Google doesn't make any money on licensing or selling Android," Van Nest said, explaining that Google decided to make it open "to foster innovation and get widespread use."

In his rebuttal argument, Oracle counsel Michael Jacobs spoke again about how Android has blocked Java from success in the smartphone market, reiterating that it is "impossible" to compete with a free version of its licensed products.

Jacobs concluded, "We need the help of the justice system to enforce our intellectual property rights."

After closing arguments for the first segment of the trial ended on Monday morning, Judge William Alsup proceeded with the rest of the instructions for the jury about ruling on copyright infringement contentions.

The jury, made up of seven women and five men, will begin deliberating today for one hour and then pick up again on Tuesday morning. Judge Alsup previously warned both parties that the jury could take up to a week to deliberate, but he predicted that they would come back within a day and a half. The decision must be unanimous.

After they return with a verdict, the case will move into the second segment of the trial focusing on patents.


Topics: Software Development, Google, Open Source, Oracle

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  • Oracle management seems to have ruined their chances...

    Jury trials are about two things...facts and perception. We've seen time and again in our legal system that you can have all the facts on your side, but if you lose the perception battle you lose the case. Googles lawyer was smart in using the words of Jonathan Schwartz and Larry Ellison in his closing arguments. Having not followed this case very closely, I can't say one way or another whether this case, on its merits, should be judged for Oracle or Google but clearly Google has seized the initiative in the perception battle. Oracle now risks not only losing this case, but also losing the goodwill the developer community has towards the Java platform altogether. This would be a shame, because Java is a much needed competitor for Microsoft in the developer space and strong competition breeds better products...this from a .NET developer.
    • I think Oracle has already lost the good-will.

      The Java community is made up of programmers, and implementing APIs is "standard programming practice". (Seriously, which programmer has ever asked "Who owns this API?" before implementing it before? I've personally written malloc(), realloc(), free() and std::string implementations and no-one has ever batted an eyelid.)

      Oracle setting a precedent that APIs [i]can[/i] be copyrighted would be a real blow to programming.
      • Not a blow to programming. A blow to copying.

        Your comment makes no sense. malloc(), realloc()?? I don't think Oracle is upset that Google copied something like ubiquitous Print and Goto "API's." Android/Dalvik is a carbon copy of the *entire* Java language with some UI framework sugar on top. When MS copied Java (in the form of Visual J++) and added their own sugar on top they got their asses handed to them. It should be no different with Google. If you hold a copy of an Android app's source code with a Java app they are virtually identical. Android *IS* Java. MS's C#, despite syntax similarities, isn't. Adobe ActionScript (based on ECMAScript/JavaScript) isn't. Apple's Objective C and Cocoa isn't. Android IS Java.

        API's are inherently copyrightable if the author so chooses to enforce it. It's no different than any other publication. That's why there are no Win32 Windows clones. No Cocoa clones. The Mono project that copies .NET API framework sought partnership with Microsoft.
      • Not the false MS analogy again!

        MS licensed and violated the TCK; it created a Java that wasn't Java, and was successfully sued for breach of contract. OTOH, Google did not sign up to the TCK.

        [quote]Android/Dalvik is a carbon copy of the *entire* Java language[/quote]No it isn't. Oracle is only moaning about 37 packages.

        [quote]If you hold a copy of an Android app's source code with a Java app they are virtually identical. Android *IS* Java.[/quote]
        That's because Android uses the Java Programming Language, which even Larry Ellison admitted was freely available for everyone to use! However, Android is not Java in the sense that it cannot call itself Java unless it signs up to the TCK. That is [b]why[/b] it is called "Dalvik" and not "Java".

        [quote]API's are inherently copyrightable if the author so chooses to enforce it. It's no different than any other publication.[/quote]
        That's incorrect. APIs have not been copyrightable before, and Judge Alsup will be deciding if they can be now.

        [quote]That's why there are no Win32 Windows clones.[/quote]
        Except that there's a Win32 implementation called Wine, and has been for over 10 years! Geez! Where have you been hiding?
      • Why would programmers care?

        Licensing is not something a programmer does. Programmers code.

        If foreign code needs to be incorporated and that code requires a license to use, then all the programmer needs to do is inform their management that this is the case.

        By the way, are you aware of someone to claim copyright on malloc etc, or ask for license for it's inclusion in any program?

        @ Zogg

        If Google did not sign the TCK, they have no right to use Java for free. This alone makes the rest of their claims void.
      • Unfortunately, Oracle's Business Plan is...

        a long sequence of "real blows" to programming. They have an incredibly destructive, greedy attitude to intellectual property. That is why my big hope for this case when I first heard of it was that Google would successfully challenge the very notion of software patents. They have clearly settled on a less ambitious goal, but if Google wins, it could still be really good for the industry.
    • Still, Oracle makes a good point

      How do you compete with a free version of your own licensed products? Also, to say that Google made it [i]open ???to foster innovation and get widespread use[/i] is also a tactic used to sheild yourself from disicplinary action, as now the owners have thousands of people or issues to deal with, not just the one.
      William Farrel
      • no good point!

        Oracle should give it away too and compete on performance and features. They already make plenty of $$$ by bundling Google toolbar with java. Oracle must change their business model to accommodate FOSS and fair use.
        The Linux Geek
      • OpenJDK

        I am not sure how Oracle competes against OpenJDK, but they are trying by using the TCK. ;-)

        Ohhh, you meant against GnuClassPath, or Kaffe, or ..., or Android? Why did Sun never bring a lawsuit against all of them over the last 20 years until somebody (Google) figured out how to make money from it?
      • Bottled water sells

        If one can sell bottled water, you can surely sell a mobile Java platrorm if it beats Android. The question then is, CAN you beat Android? If you can't, it's either because of cost, quality or marketing (usually). Make it good, give it a fair price and let the world knows it exist. If it still won't sell, it's not good enough (and might not be able to be, if what's out there already fits everybodys needs *today* - and if that's the case, you're helping nobody by stopping them).
  • That sealed it folks, Google will win!

    The jury heard a wonderful equitable defense that will put Oracle appalling allegations to shame!
    Google's Van Nest was very eloquent while Oracle's greedy lawyer did not convince anybody with its flat tired lies.
    Google merely did fair use when they inspired android from java, they did not steal anything!
    The Linux Geek
    • I agree

      You and I usually disagree, however I must admit that based on what I have read on this case, you are absolutely right. I see a victory for Google in this case. The statement alone that "Schwartz did say that Sun supported Android???s use of Java nor did it have any grounds to file a lawsuit." is enough for me to say that Oracle is in the wrong.
  • If there is a "guilty" on any charges in this trial...

    ...opensourse developers will start ripping out Java from their software - it took years for them to embrace openJDK - Oracle undone it all.
    Of course, Oracle doesn't care - they want to squeeze every last dime out of Java NOW! Which means - Oracle boycott by IT community is not far behind.
    • FOSS will continue to grow despite Oracle

      but because oracle will lose anyways!
      The only thing oracle "accomplished", is to move to the front runner position in the axis of evil software: Oracle, Apple & M$.
      The Linux Geek
      • What happens next is probably more important

        Boies/Schiller/Flexner kept "The SCO Group" lawsuit going for over SEVEN YEARS WITH NO ACTUAL EVIDENCE OF WRONGDOING so even if Oracle loses I would not expect a quick resolution anytime soon.
    • But this isn't about openJDK

      Its about Harmony and Oracle couldn't careless about open source licenses so long as IBM and the rest pony up licensing fees.

      I work for an Oracle competitor, while I don't want them to win I expect them to and then if google doesn't settle I expect them to injunct every handset maker until they settle

      If Google wins I'll be happy and surprised
  • What a shame

    Shame on Google to copy and profit from another compan's work which took more than a decade to develop. There is no other company in modern times which is so technologically and morally bankrupt.
    • Google stole nothing!

      Java was merely a source of inspiration under fair use doctrine, not something they stole. Open software is allowed to borrow from commercial one. That's the law and Sun knew it!
      The Linux Geek
      • Only if they'd have done a clean room implementation. But the facts show

        they didn't. They may get away with it, they may not.
        Johnny Vegas
      • At that Time...

        they knew it, as you say. But they have been backpedalling furiously since, and are hoping hard that people will forget.