Google's Page, Oracle's Ellison take the stand

The trial between Oracle and Google, accusing the latter of copying Java code, continued yesterday with an Oracle slide deck laying out its argument before the court moved on to hear lead witnesses Oracle CEO Larry Ellison and Google CEO Larry Page.

Oracle began with a 91-slide presentation (PDF) that outlines the company's lawsuit over Android. Oracle's argument is that Android rips off Java, and it wants compensation and damages.

One of Oracle's slides.
(Credit: Oracle)

Oracle made extensive use of email excerpts in the presentation, and quoted Google executives as arguing that they needed to work around Java or plow through it, and worry about the consequences later.

Arguing that "Android is not a clean room implementation", Oracle said that Google copied Java code. In addition, Oracle argued that Google harmed the Java community by fragmenting the code with Android.

Page deposition heard

Following Google's opening statements, Google's CEO Larry Page was announced as the first witness, although his testimony was actually a video from his deposition on 24 August 2011.

Oracle attorney David Boies focused on a particular presentation from 25 July 2005, listing "Must take licence from Sun" as one of the bullet points of the agenda.

The argument back and forth between Boies and Page was to determine whether this presentation was written and led by Andy Rubin, senior vice president of mobile at Google (aka, the father of Android), and his team.

To back up Oracle's argument over whether Google executives discussed Java-related licences, Boies presented this email, which was sent from Rubin to Page shortly after the meeting:

My proposal is that we take a licence that's specifically grants the right for us to open source our product. We'll pay Sun for the licensee and the TCK. Before we release our product to open-source community, we'll make sure our JVM [Java Virtual Machine] passes all TCK certification tests so that we don't create fragmentation. Before a product gets brought to market, a manufacturer will have to be a Sun licensee, pay appropriate royalties and pass the TCK again.

Sun has already permitted open-source VM projects in non-mobile areas — areas where they didn't have a well-defined revenue stream. Apache is an example.

Although Page couldn't identify what TCK stood for, the next witness to take the stand, CEO Larry Ellison, identified this as a compatibility test for Java programs.

When asked if there were discussions in 2005 and 2006 between Sun and Google "to transfer a licence", Page hesitated, saying that he remembered "that there were deals discussed where we were going to make payment to Sun that involved a variety of terms". Yet, Page couldn't recall any specifics about these licences and terms.

Furthermore, Page and Boies disputed the definition of a platform, and disputed whether Android and Java could both be defined as platforms.

Page wavered back and forth about Java being a platform, saying that "platform is a term that is hazy in my mind".

"People would commonly assume Java is a platform," Page explained. "I think Android is clearly a platform."

Nevertheless, Page did admit during one point in the questioning that Java is "many things", including both a language and a platform.

Ellison's testimony

Taking the stand after Page's video, Ellison said that when writing a program in Java, developers do two different things: they use the Java programming language; and then they reuse the library of pre-written Java programs.

Larry Ellison leaves the court.
(Credit: James Martin/CNET)

When asked whether it is expensive to develop APIs, Ellison sighed and responded, "Arguably, it's one of the most difficult things we do at Oracle."

Ellison said that there are three kinds of licences: GPL open source, specification and commercial.

Some examples of companies using commercial licences include RIM for BlackBerry and Amazon for the Kindle.

Describing Java specification licences, in particular, Ellison explained that this licence lets developers look at the Java documentation — not the source code. Then, using those design specifications, developers can build their own version of Java, using the design and specs.

Examples of these companies that fall within the Java community (but are also competitors of Oracle) include IBM, SAP and Hewlett-Packard.

Once a company has built its own version of Java, it must run a compatibility test (or TCK) to ensure that it is compatible with the standard Java framework. If the company passes, the licence is free, but the company has to pay for the compatibility test.

When asked by Oracle attorney Boies if there are any companies that are using Java without any of these licences, Ellison replied, "The only company I know of that hasn't taken any of these licences is Google."

When asked by Google's defence attorney Bob Van Nest if the Java language is free, Ellison hesitated. Judge William Alsup pushed Ellison to give a yes or no answer, and Ellison said, "I don't know."

"I don't know if you can copyright a language," Ellison explained later during his testimony, "I just don't know the answer to that question."

Van Nest reiterated that Google is not promoting its smartphone platform under the name Java, but rather under a different name: Android.

Van Nest then followed a line of argument that basically tried to assert that Oracle has backtracked on its support for Android, and it's now filing a suit after Oracle couldn't get into the smartphone market itself.

Recalling a speech that Ellison made in June 2009 at JavaOne with then Sun Microsystems chairman Scott McNealy (as seen in the video below), Van Nest questioned Ellison on whether he remembered his remarks, to which Ellison replied he did.

During the event, Ellison had said that he expected to see more Java devices coming from "our friends at Google". Van Nest highlighted the part where Ellison praised Sun, saying that it had done "a fantastic job" in opening up Java and giving it to the world.

Van Nest then asked Ellison if a "primary factor" behind buying Sun was to get into the smartphone business. On the stand, Ellison replied no.

Van Nest played a video clip from Ellison's deposition in August 2011 where Ellison was asked if Oracle wanted to use Java to expand into the smartphone business as well as to compete with Apple.

At the deposition, Ellison replied yes on both accounts.

On the stand, Ellison defended his remarks by pointing out that Van Nest said a "primary factor". Ellison asserted that it was only a simple "factor", as it was "an idea worth exploring", but not one of the "primary" motivations for buying Sun.

Ellison had trouble remembering other past statements during his testimony. After being asked about internal plans regarding expanding into the smartphone market through potential acquisitions (Palm wasn't considered to be competitive enough, and RIM was rebuffed for being "too expensive"), Ellison was questioned about a meeting with Google's Eric Schmidt about Java and Android.

On the stand, Ellison first said that this was "not a joint project", but rather Google could take Oracle's version of Java and put it into Android.

When Van Nest brought up Ellison's deposition from August 2011 again, Ellison affirmed that it was a joint project. Google's lawyers described the meeting to discuss Google engineers working with Oracle engineers to improve and put out a better product. Ellison replied, at the time, "Correct".

When on the stand, Ellison relented and said, "I called it a joint project. OK."

Obviously, those talks fell through. The next interaction after that was the lawsuit that's at trial now.

Page takes the stand

Page took the stand in person during the afternoon, although he offered Oracle lawyers few concrete answers, constantly reasserting that he had little knowledge about any discussions regarding Java licences needed for Android during the presentation in July 2005 by Google senior vice president Andy Rubin and his team.

Oracle attorney David Boies asked Page whether he knew if some of Google's developers did have access to some intellectual property related to Java. Page replied, "I don't know anything about that."

Boise then asked Page, "Is it your testimony that you are unaware that certain lines of code in Android were copied symbol for symbol from Sun's intellectual property?"

Page replied that he knew there were "some disputes" about files, and that he once discussed this with Oracle CEO Larry Ellison, asking for a copy of this information. Page asserted that he never received it, because such evidence must not have been substantial enough.

This cat-and-mouse pattern continued as Boies questioned Page, "If you discovered that Android included some lines of code that had been literally copied from Sun's intellectual property, do you think that would be a violation of Google policy?"

Boies similarly asked, "Is there any circumstance that you could think of that is consistent with a clean room where you could have line-for-line copying and be consistent with Google standards?"

To both questions, Page responded that it's hard to answer hypothetical situations, but that such cases would be taken seriously, and he doesn't see any reason as to why such a circumstance wouldn't be possible.

Judge William Alsup called for a break during the middle of Page's examination by Oracle's lawyers. He will retake the stand on Wednesday morning.

Via ZDNet US