Verdict nears

Oracle vs Google – Closing statements in, jury deliberating copyright phase

Chris Mayer

Oracle and Google put forward their closing arguments as Judge Alsup sends the jury away to consider their verdict

Following two weeks of intense accusations over the use of Java in Android, plus a weekend where Java creator James Gosling said ‘Google totally slimed Sun’, it is now time for the jury to deliberate on whether Google had indeed violated copyright in building the Android platform.

Yesterday (Monday) saw both Oracle and Google provide their closing statements, both of which you can read in full on Groklaw - this is merely the highlight reel. Michael Jacobs was up first for Oracle and their argument revolved around a simple premise – Google took Java code and documentation without permission, in order to take the easy way out:

The issue is pretty simple: Did some company use another person’s property without permission? Like camping on your land, using your bathrooms without permission…

One company deciding to use another company’s property without permission. There were negotiations between Sun and Google. Mr. Rubin’s testimony… what did Google want Sun to do? Throw away their existing license and change their business model. He had an idea of how to open source in a way that nobody had conceived. Sun said No, we want to stick to our business model. WORA [Write Once, Run Anywhere] is important to us. Disagreement persisted, and so here we are.

Another interesting point made by Jacobs, on behalf of Oracle was that because of Android, Java/Oracle had lost a chance at competing in the smartphone race. “Android has foreclosed the market, blocking the opportunity for Java to move into smartphones,” Jacobs said.

Jacobs referenced ex-Sun CEO Jonathan Schwartz’s 2007 blogpost, which praised Google for the creation of Android, to make it clear this was not indicative of a license.

Was Google’s use “fair use”? Sun didn’t sue everyone, why are you suing us? — You don’t have to sue everybody in order to protect your IP from commercial use. The Jonathan Schwartz blog post is not permission; it is not a license.

Groklaw provides the summation of Jacobs’s hour-long closing statement:

So here we are in 2012. Google still doesn’t have a license. Google is still using Java. Took IP. Leverage off Sun/Oracle’s investment in Java. Our system asks you [to get a license]. Blog post is not a license. Hold Google accountable for its use of IP in Android without permission. Thank you.

Oracle want Google to admit they knew they had to get a license for Java, and still want to impose this. 

Robert Van Nest gave Google’s closing statement soon after, with the defendant claiming that whilst it did indeed mimic Java code in creating Android, it was free to do so because of fair use. Schwartz could be a kingmaker in this case, one way or the other, as he featured heavily in Google’s closing statement too:

Evidence that you’ve seen and heard from Google can only bring verdict for Google. Jonathan Schwartz, CEO of Sun, knew that Google was using Java and didn’t have a license from Sun. Schwartz: “We didn’t have grounds to sue”. “There is no copyright infringement, and we don’t have grounds to sue.” 
No infringement, no copying. Google played it by the book.

Van Nest questioned Oracle’s stance on the 37 Java APIs in play (which Jacobs had claimed earlier showed how Google had copied Java for Android, as well as showing nervous emails from Google executives):

Google’s use of the 37 APIs from Java in Android was open. Everyone knew about it. What is Android? It is an Open Source platform. Nobody is excluded. Anyone can work on it. Sun just failed to build their own smartphone.

Google’s use was transformative. Android was always intended to be Open Source. Put the product together, make a brand new product, and give it away. Yes, Google makes money on ads. Google doesn’t make any profit on licensing and selling Android.

Essentially, Van Nest’s main argument was this is a case of fair use – Android is not a straight copy of Java 5.0 SE, and the jury should judge ‘the work as a whole’. His four key points were:

  1. Sun gave the Java language to the public.
  2. Google built Android independently using free and open technologies.
  3. Google made fair use of the Java language APIs to promote transformation, to the public good.
  4. Sun publicly approved Android’s use of Java. Not just the Schwartz blog… meetings, JavaOne conference.

Now it falls to the jury to decide. Judge Alsup had previously said that they could take up to a week to decide, but now predicted that they would come to a unanimous verdict within a day and a half. Alsup has told jurors to assume copyright covers the design of the APIs, so they can weigh whether Google’s use of the APIs amounts to infringement. Ultimately, it could come down to Alsup himself, as the judge has told attorneys he will make a final decision based on the evidence and the jury’s findings.

Groklaw’s summary is particularly to the point:

I think you could sum it up like this: Google says everybody at the time said it was fine to do what we did, and they surely knew what we were doing. Nobody at Sun objected. Oracle says there is a new sheriff in town.

After the verdict is in, we move onto the second phase looking at patents in Oracle’s suit, but it’s fair to say the decision made here would act as an indicator of which way the trial is going to go.

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