SAN FRANCISCO (CN) – An unhappy jury is poised to begin deliberations today on the first third of a potentially 12-week trial over allegedly copyright-protected Java in the Google Android.
One juror, displeased by the length of the trial so far and the “disruption it’s caused in her life,” started the hearing in a sidebar with U.S. District Judge William Alsup and lawyers.
After that juror returned to the box, Oracle attorney Michael Jacobs began his closing arguments, acknowledging the very complicated questions the last two weeks have raised.
Oracle, which purchased Java creator Sun Microsystems in 2010, claims Google lifted proprietary computer code for use in its Android operating systems.
“People like you decide these titanic questions,” Jacobs said.
“The issue is pretty simple: Can somebody use another person’s property because it suits them,” he added. “Google wanted Sun to throw away their standard license. Google wanted Sun to change their business model. Sun said no, the disagreement persisted, and here we are.”
The issue boils down to the importance of rewarding authors for their creations, Jacobs said, pointing out that application programming interfaces (APIs) are creations that Google copied,.
“Google concedes all this copying; either because it jumps out when you look at it, or because it was part of their plan,” he added. “Google knew this day would come. They predicted the lawsuits. We’ve seen email after email from Google, writing each other and warning about this. And why? Because Oracle’s 37 APIs get turned on 750,000 times a day on Android devices around the world, and Oracle never gets a dime for any of it.”
Jacobs rejected Google’s frequent argument that the copying was minimal. “This copying is not minimal,” he said. “Four hundred classes, 4,500 methods, 7,000 declarations. If this was printed out, it would be 11,000 pages. 11,000 pages of copyright infringement by Google.”
Anticipating what would be a key point in Google’s closing arguments, Jacobs discussed a 2007 blog post authored by then-Sun CEO Jonathan Schwartz, congratulating Google on Android. “A blog post is not permission,” Jacobs said. “A blog post is not a license.”
“Sun registered copyright after copyright, version after version,” Jacobs continued. “Why? Because they were critical to their business.”
Fair use in copyright law allows for criticism, comment, news reporting, educational or research purposes, but Jacobs said Google cannot make that claim because “Google used the Java applications for Android to make money.”
The attorney urged jurors to reject Google’s argument that fair use also allows for “transformative” use of copyrighted work for public benefit.
“Google wanted to leverage those APIs,” he said. “That’s not transformative, that’s just copying. The more that’s taken, the less fair use applies. What did Google take here? Thirty-seven API packages out of 166. If we’re talking a six-chapter book, it’s a whole chapter.”
“They took the crown jewels of the packages in the Java SE,” he added.
Google’s theft of Oracle’s intellectual property also cost Oracle other business, Jacobs said, noting that the Amazon Kindle Fire uses Android OS. He said it also fragmented Java.
“Java compatibility is crucial to Java’s ‘Write Once, Run Anywhere’ business model,” he said. “Android has fragmented the Java application. Google understood that it should avoid fragmenting Java. This harm to Java is on all levels, and this cuts against fair use.
Sun even expressed public concern about this fracturing and the Android, he added.
Oracle’s arguments concluded with Jacobs asking if Sun did anything to lead Google to believe it would be off the hook for a license.
“Sun posted its copyright information on its website,” he said. “Sun refused to modify its licenses for Apache Harmony. That was a huge dispute; there was nothing quiet about it and there never was a license given for Harmony.
“And Google knew all of this.”
Lead Google attorney Robert Van Nest spent a good deal of his hour touting Schwartz’s blog and testimony that the executive gave earlier in the trial.
“Mr. Schwartz was running Sun at the time,” Van Nest said. “He chose to put Sun’s support behind Android. Then he came into this courtroom and admitted they didn’t have grounds to sue. There is no copyright infringement here, and Oracle didn’t prove a thing.”
Van Nest said Android engineers took the 37 Java APIs and re-engineered them to make a smartphone, something that had never been possible with Sun’s desktop Java version.
Google did try to license Java, but ultimately decided to use the lines of code under the fair-use clause by transforming them into something they had never been before, Van Nest added.
“Once it was clear Google and Sun couldn’t reach an agreement, it went on its own with Apache Harmony code,” he said. “It was open source. Sun had been making the Java language available for years.”
“Android is transformative,” he added. “Android strapped a set of rockets onto Java. Android has made Java even more popular than it was before. And Oracle hasn’t shown anything anywhere near what they needed to prove infringement. Google deserves your verdict.”
Google’s close also focused on the cleanroom process by which software is developed and tested as a statistical experiment. Though Oracle says nine Android files in the range-check function had code identical to that of Java, Google says this came from the cleanroom process.
“They talk about a dirty cleanroom,” Van Nest asked. “Nine lines of code out of 15 million! So don’t talk to me about a dirty cleanroom. That’s a pretty darn good job, and the evidence is Android.”
Google didn’t steal from Oracle, it made fair use of the Java APIs in Android, something Sun publicly approved of and many other companies have done, Van Nest continued.
“Sun said it themselves: APIs are out there for everybody to use,” he said. “Companies compete in the implementations.”
Apache and GNU Classpath, for example, have used Java for free, and with Sun’s knowledge or blessing, he added.
“Copyright infringement requires that you copy something,” Van Nest said. “There was no copying here; Google designed from open source.”
Judge Alsup said structure, sequence and organization are copyrightable under the law, but Van Nest told the jury that these terms were meaningless before the trial.
“There was not a word of structure, sequence and organization back in the day, during negotiations, because they weren’t there,” the lawyer said. “They didn’t exist. These words were made up for the trial.”
“All this talk of the 37, the 37, the 37 – that’s wrong,” Van Nest added. “That’s wrong legally. It is about the work as a whole. All 166 API packages in the registered work. It’s 2.8 million lines of code. For Android version 2.2, it’s 10,000 lines. That’s less than half of 1 percent. You are comparing the entire functionality of Java SE to the names and declarations of Android. They’re not comparable.”
“I’m sure you’ll hear when Mr Jacobs gets back up here, ‘But they copied! But they copied!'” Van Nest continued. “But did they? They are completely different.”
Revisiting the nine copied lines, Van Nest said, “It’s unfortunate that it got in there, but it’s been taken out of all current versions of Android.”
“And it’s minimal,” he added. “Miniscule. Nine lines of code in 3,170 lines of code in the entire file. That’s the definition of de minimis.”
Earlier, Alsup had instructed the jury that minimal or insignificant changes not be regarded as infringement.
If the jury finds that Google violated Oracle’s copyrights on the 37 APIs, Google has the burden to prove that the overall structure, sequence and organization constituted fair use, the attorney said.
“We’re balancing the rights of the public to innovation and advancement with the rights of the owner,” he said. “The owner of a copyright cannot prevent someone from making fair use of the work. Java was something that Sun was trying to make work on a smartphone, and it failed until Android came along.”
“Java is perceived as stagnant and legacy,” Van Nest added, building upon an internal Sun memo entered into trial evidence. “Sun tried and failed three times to build a smartphone.”
Google returned Oracle to profitability. “Java use is up 10 percent year over year,” he said.
Van Nest rejected that Android caused fragmentation in the Java platform.
“There is no evidence that Android fragmented Java,” he said. “Java was already fragmented; Google had nothing to do with it. Fragmentation got so bad that Sun itself decided compatibility is optional. They fragmented Java themselves.”
He also shot down arguments that Android writers lifted Java’s user manual and used it as their own. Since technical writers use the same words, substantial similarity isn’t enough, Van Nest said. They must be identical.
Van Nest closed by emphasizing Sun’s awareness of, even happiness over, Android’s use of Java, and the benefits that Android’s 2007 debut produced for the company.
“Sun knew what Google was doing,” Van Nest said. “It was crystal clear that Google was using the Java language.”
“The evidence supports a verdict for Google on every single question on the jury form you’re about to fill out,” he added. “Schwartz told you in point blank terms that he was the one who put APIs out in the public. He is the one who is in the best position to judge. And that judgment was [Sun] didn’t have grounds to sue.”
Oracle then summed up its case by criticizing Google’s “warped” view of copyrights.
Noting that the copyrights cover structure, sequence and organization, Jacobs said, “This is not something trivial or insubstantial in this case.”
An infringing excerpt copied from a book isn’t excused merely because the infringer includes the excerpt in a much larger work of its own, Jacobs said, adding that Google’s copying of 37 APIs is the same.
“Stucture, sequence and organization are what the architect of software does,” he said. “API designers – that’s the creative heavy-lifting part of writing a software package.”
While Google may think Android benefited Sun, and subsequently Oracle, Jacobs noted an email in which Sun co-founder Scott McNealy voiced his concerns about replacing the revenues lost by giving away the Android technology for free.
“Is there harm to Oracle?” Jacobs asked. “Revenues are increasing, but in markets other than the smart phone. It’s very difficult to compete with free. Google won’t discuss the missed opportunities for Java. They can’t.”
“We need the help of the justice system to enforce our property rights,” he concluded.
Jury deliberations in the case are expected to begin Tuesday.