SAN FRANCISCO (CN) – A Google executive who oversees Android development admitted on the stand Monday that he thought the company needed a license to develop the popular smartphone with Java.
Oracle hopes similar testimony will score a verdict that the Android infringes 37 Java application programming interfaces (APIs), and that Google should have licensed the technology.
Oracle attorney David Boies pointed to a March 2006 email in which Android chief Andy Rubin wrote that he believed a package of APIs known as java.lang are copyrighted.
“You mean copyrighted by Sun,” Boies asked.
“I didn’t exactly say that,” Rubin responded.
In another email, Rubin suggests to Google CEO Larry Page that “we take a license that specifically grants the right for us to Open Source our product. We’ll pay Sun for the license and the TCK (technology compatibility kit).”
Rubin explained Monday: “Those were the options at the time.”
The Google executive will take the witness stand again Tuesday morning, and Google’s attorneys are expected to call him after Oracle rests, which may be as early as Tuesday afternoon.
Earlier in the hearing Monday, U.S. District Court Judge William Alsup asked Google’s lawyers if they were ready to admit that the company copied the 37 APIs.
But the company would not budge from its stance that Oracle does not have a claim to their source code.
“I quibble with the word ‘copy,'” Google attorney Bruce Baber said. “APIs have been out a long time, in books, on the web and available in Harmony.” Apache Harmony is an open-source, free Java implementation.
“We absolutely used and included them in Android so we would have them exactly right,” Baber continued, affirming Google’s position that all aspects of Java are free to use.
Alsup told both teams he could not understand why they wanted him to instruct the jury that the 37 APIs are a whole, copyrightable work.
“I’m turning over in my mind how we deal with the work as a whole issue,” Alsup said. “That’s not what the evidence is.”
Testimony in front of the jury began Monday with former Google executive Bob Lee, who was the core library lead for Android.
Oracle attorney Michael Jacobs questioned Lee about documents relating to Java and Android, and Lee hedged a definitive answer on whether those documents said the same thing with some wording changed.
“Similarities – paraphrasing – these terms are a contract,” said Lee, who now works as chief technical officer at the tech company Square. “They are very specific rules, and there are only so many ways you can phrase them.”
Lee was more forthcoming about the tight control Sun Microsystems had over Java in the late 1990s and early 2000s, before Oracle bought the company in 2010.
“Everyone believed that Sun was abusing their position in the JCP, including Google and Oracle,” Lee said, referring to the Java Community Process, an alliance of software developers and companies dedicated to keeping Java open-source.
“JCP was marketed to be an open-standards organization,” Lee continued. “When Apache Harmony developed a Java SE, Sun balked and refused to give it the Java trademark. And Apache Harmony never adopted the license that Sun offered with a field of use restriction.”
The judge twice admonished Lee, who is known as “Crazy Bob” in the tech world, for giving speeches instead of answering questions.
“Now there you go, giving a speech again,” Alsup said. “You can’t do that. You’re a fact witness, just answer the questions.”
Lee gave a more straightforward answer when Baber, the Google lawyer, asked whether permission was given to use any of the 37 implicated Java APIs while developing the Android.
“I didn’t know if it was allowed to reimplement APIs, so I asked my supervisor Brad Horowitz,” Lee said, referring to the Google’s vice president of product management. “He said, yes, there is lots of precedence for this in the industry.”
Jacobs, the Oracle lawyer, asked Lee to confirm that the advice Horowitz gave “was unguided by any legal counsel.”
“As far as I know,” Lee said.
The witness also testified that even Apache had concluded that the API specifications were proprietary technology.
Oracle next called an expert witness to the stand. In the months leading up to trial, the reports and depositions of Stanford University computer science professor John Mitchell were a contentious subject.
Alsup twice threw out portions of Mitchell’s report for impermissibly introducing new patent infringement theories.
After Mitchell gave a detailed description of the 37 APIs in dispute, Mitchell told the court that Google copied the technology in Android code.
“Looking across the 37 APIs, they really are identical,” Mitchell said.
He added that “quantitatively, approximately 90 percent” appears copied.
“Even things that wouldn’t need to be copied were copied,” Mitchell said. “I don’t see how a separate team could have come up with all of this on their own without copying.”
“Android is not a cleanroom implementation,” he added, referring to the process by which software is developed and tested as a statistical experiment. “The range checks really are identical, to the point of almost unnecessary copying. Since I don’t see how this could happen without copying the code, it’s clear someone had access.”
Mitchell said he also found evidence of copying in the decompiler, which converts class files into source code. “Someone basically has to decide to cheat in a sense, to use the decompiler to get source code,” Mitchell said.
Google lead Robert Van Nest picked apart Mitchell’s testimony in cross-examination and questioned what motivated Mitchell to testify for Oracle.
Van Nest pointed out that Java language is free, and that Mitchell’s report states that Oracle does not claim copyright infringement for the use of Java as a language.
Sun even published its language specifications in 1996, Van Nest said.
He characterized the volume as a complete specification of the Java language, including three of the core packages of the APIs at issue in the case, as stated in the preface of the book.
“Sun refers to those core packages as fundamental to the Java system,” Van Nest said.
Mitchell responded: “I think it said fundamental to the Java language. That’s what it says on the back cover.”
Van Nest questioned why Mitchell claimed to have found 12 Android files with code identical to that of Java, but only nine lines of code in the range check function were found in one of the files.
“It’s still nine lines,” Mitchell pointed out.
As the first phase of the trial draws to a close, Judge Alsip said both sides need to clarify a number of issues “sooner rather than later.”
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