Google is making excuses: Oracle

Oracle's counsel posited to the jury that this case comes down to one simple question: can one company use another company's property without permission?
Written by Rachel King, Contributor

Oracle's counsel posited to the jury that this case comes down to one simple question: can one company use another company's property without permission?

Oracle made its closing statements during the first segment of the Oracle-Google trial on Monday in the US, and it all boils down to this: Google is making excuses for taking the property of Sun Microsystems — and now Oracle — and using it on Android.

Oracle counsel Michael Jacobs commenced by telling the jury at the US District Court that "this is a trial between large companies over really important business issues", and that sometimes the numbers involved have been "staggering", whether they refer to the lines of code or dollar amounts in question.

Nevertheless, Jacobs said that there is really only one, simple question that needs to be answered here: can one company use another company's property without permission?

"You will see email after email, in which Google executives knew this day would come," said Jacobs.

Saving the technical-heavy argument and evidence for later in his closing statements, Jacobs compared the creation of APIs to writing a piece of music, going further to say that API design requires significant expertise and time.

"It's magical. It's like painting," Jacobs emphasised.

Jacobs argued that Google took the easy way out, and now Google is trying to use fair use, a law that allows people and companies to use copyrighted materials for new and different purposes, as a way out of this lawsuit.

"If Google can just take the APIs and be forgiven under fair use, that licensing falls apart," Jacobs warned. "That is the deep threat that Android represents to the entire Java community."

Jacobs argued that Google did not transform the 37 Java API packages, but rather only copied them from the Java core libraries into the Android core libraries. Remarking that "Google's copying was extensive", Jacobs broke it down to 400 classes, 4500 methods and 7000 declarations — which would equate to approximately 11,000 printed pages on specifications.

"That can't be transformative. That's just copying — copying for a business purpose," Jacobs argued, explaining that Google used the 37 APIs in question because the Android team knew that these APIs were the most popular with developers — and therefore the most valuable to Google, as well as Sun and Oracle.

Trying to refute Google's argument that no one had been able to use Java to build a successful argument before, Jacobs called out a few examples where Java had been used for smartphones, which were RIM's BlackBerry, the Nokia Series 60 and Danger's Sidekick.

Yet, Jacobs posited to some extent that Java is facing difficulty and competition in the mobile space because of Android.

"Android has foreclosed the market, blocking the opportunity for Java to move into smartphones," Jacobs said, reminding the jury that Oracle chief financial officer Safra Catz said during her testimony on Friday that "it's pretty hard to compete with free".

The bottom line here is that Oracle still wants Google to get a licence for Java, and it wants Google to admit that its executives knew they were supposed to get a licence but didn't do so anyway.

Jacobs tackled this by pointing to Android chief Andy Rubin's testimony on 24 April, highlighting Rubin's statements that Google wanted Sun to "throw away their standard licence" and "develop a new licence that was specifically what we're looking for".

Yet, on the following day, Rubin did try to maintain that the Android team members didn't think that they needed a licence from Sun.

Furthermore, once again playing a major role in this trial, Jacobs recalled the November 2007 blog post by former Sun CEO Jonathan Schwartz, congratulating Google for the debut of Android.

Displaying shades of his tense encounter with Schwartz last Thursday, Jacobs asserted that Schwartz's praise for Google really means nothing legally.

"A blog post is not permission. A blog post is not a licence," Jacobs said sternly, adding later in his speech to the jury that "Google knows better than to claim a blog post is official permission".

After Oracle made its closing statements, Google's Robert Van Nest stepped up to the plate, defending Android's implementation of the 37 Java APIs in question in this lawsuit.

Van Nest's core defence 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 (ie, 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 that 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 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.

Via ZDNet

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