"Can somebody use another company's property just because it suits them?"
That's the question posed by Oracle lawyer Mike Jacobs during the closing arguments in the "copyright phase" of the ongoing court battle between Oracle and Google over the use of the Java programming language on the Android mobile operating system. Oracle is trying to show that Google violated Oracle's copyrights when it built a new version of the Java platform atop Android, and on Monday, Jacobs sought to drive home Oracle's case by tossing this rhetorical question at a California jury.
But with his closing argument, Google counsel Robert Van Nest insisted that the search giant was well within its rights in building its own version of Java, claiming "fair use" of Oracle's copyrights. "Everything in Android is original," Van Nest said.
In 2010, Oracle acquired the Java platform when it bought Sun Microsystems, and it promptly sued Google, claiming copyright and patent infringement. After a year and a half of pre-trial bickering, the case finally came to court on Apr. 16, and the past two weeks saw testimony from such big names as Oracle CEO Larry Ellison, Google boss Larry Page, Android godfather Andy Rubin, and two ex-Sun CEOs: Jonathan Schwartz and Scott McNealy.
The case could go a long way toward deciding whether a company can copyright an application programming interface, or API -- which is essentially a way of talking to a piece of software. Oracle claims that Google violated its copyrights by mimicking 37 Java APIs -- though it also claims that Google actually lifted nine lines of software code from the Java platform in building Android.
On Monday, as he gave his final instructions to the jury, Judge William Alsup once again defined the boundaries of the case, saying that copyright protects the "expression of ideas" but not a procedures, processes, systems, methods of operation, concepts, principles, or discoveries. For the purposes of this case, he said, Oracle's copyrights cover the "structure, sequence, and organization" of the actual software code that underpins the Java platform.
On the jury verdict form, the first question reads: "As to the compilable code for the 37 Java API packages in question taken as a group: Has Oracle proven that Google has infringed the overall structure, sequence and organization of copyrighted works?" With its closing argument, Oracle attempted to show that Google had violated its copyrights by knowingly copying both software code and documentation for that code.
Oracle's Jacobs told the 12 jurors that the core question of the trial was "pretty basic," and he reviewed the testimony of expert witness John Mitchell, a computer science professor at Stanford University, who said that there was no way that Google could have created Android without directly copying code and documentation from Oracle. Because of this, Jacobs said, a "clean room implementation" -- in which programmers build code from scratch -- was not possible.
Google has tried to establish that although some of its engineers may have had prior knowledge of the code used by the Java platform, they built Davlik independently of this knowledge. But Jacobs disagreed. "The clean room was not clean. The clean room was very dirty," he said, claiming that 400 classes, 45 methods, and 700 declarations covering about 11,000 pages of code amounted to "property taken by Google."
In order to prove fair use, Google had to show that Android is "transformative" -- meaning it's very different from the work its derived from -- or that it's not used for profit. But Oracle's Jacobs said that neither applied. He said that Android was just the Java APIs on smartphones, and he said that although Android was free to download, Google makes a great deal of money off the product through other channels, such as advertising.
Jacobs then moved on to myriad e-mails showing that -- after failed negotiations between Sun and Google over a possible partnership around Android and Java -- Google was aware that it would make upset Sun in building its own version of Java and that it would "fragment" the Java platform. He argued that you can't copy APIs simply because coders are familiar with the status quo and would not want to learn new ones.
With its case, Oracle is also trying to show that even as it copied the Java platform, Google was knowingly building a platform that would undermine the platform. The Java platform was designed to run the same applications on many different devices -- "write once, run anywhere" is the tag line -- but Jacobs argued that in building its own version, Google disrupted this effort -- and that it knew this would make a lot of people unhappy. Jacobs did not explain, however, how this sort of behavior violates the law.
While Judge Alsup made it very clear that neither side was allowed to discuss the amount of money Oracle is demanding from Google, Jacobs said that Android is officially activated on 750,000 devices a day "without any acknowledgement from Google that that is Oracle's property."
During his testimony last week, former Sun CEO Jonathan Schwartz said that Google had done nothing wrong in building its own version of Java, and Google pointed to a blog post Schwartz published at the time praising Google's use of Java. But on Monday, Jacobs argued that Schwartz was not qualified to judge the legal ramifications of Google's actions. "A blog post is not permission," he said. "A blog post is not a license."
During its closing argument, Google disagreed, saying that Schwartz very much undermined Oracle's arguments. "[Schwartz] chose to put Sun's support behind Android and went public about it," said Google counsel Robert Van Nest. "He said under oath that [Sun] didn't have grounds to sue." Van Nest also pointed out that Schwartz asked Google about how Sun could use Android. "If that's not an endorsement," Van Nest said. "I don't know what is."
Van Nest reiterated that Google had done nothing wrong in building its own version of Java because it only needed a license for the Java name and brand. Even still, he argued, the codebases for Android and the Java platform were drastically different. "[Oracle] scoured Android up and down and found nine lines of code out of 15 million," Van Nest said. "So don't talk to me about a dirty clean room."
Van Nest dismissed the idea that Google had copied the actual code and documentation. Oracle, he said, must show that someone intended to copy the code. Van Nest said that Oracle had not copied the "structure, sequence and organization" of the Java platform code. He said that Oracle was only challenging the "system of organization," and this point got him so excited that he hopped up on one foot. He argued that Google's use of Java was akin to using the same labels that Oracle uses on the outside of a filing cabinet -- but not the same files and folders used on the inside. Android, he said, "transformed the use of Java for a smartphone stack."
During the trial, Oracle has tried to show how much work is needed to build APIs. Van Nest did not disagree. But he said that Oracle had stretched the definition of a work of art by saying that APIs were akin to a symphony or a book. "They're functional," he argued, saying that an API simply takes and processes code.
Van Nest also attacked Oracle's complaint that Android has fragmented the Java platform. "You haven't heard a single developer come in and say, 'Gee, I'm unhappy about Java because Android fragmented it,'" he said to the jury. He then presented a number of slides and emails that ostensibly show that Sun fragmented Java itself. "And they recognized it," he said.
After each side's closing argument, the jury began deliberations. But as of Monday afternoon, they had not yet reached a verdict. They will resume deliberations Tuesday morning at 8 a.m. PDT. Once the verdict is handed down -- regardless of whether Google is found guilty or not -- the trial will move into its "patent phase," where each side will argue over whether Google violated two Oracle patents in building Android. If Google is found guilty in either of these two phases, there will be a "damages phase," where the jury will decide whether Google must pay Oracle for its use of Java.
When the court proceedings concluded at the end of day, the tension between the two sides dissipated -- at least temporarily. Lawyers from both sides shook hands and engaged in what appeared to be friendly conversation. But the battle will resume on Tuesday.
