SAN FRANCISCO (CN) – Plausible deniability took center stage Tuesday in the much scrutinized copyright case over the Android smartphone, as two Google executives divulged little on the stand.
Android chief Andy Rubin concluded his second day of testimony by dodging questions about the possibility of fragmentation in the Java program. Oracle, which has owned Java patents since acquiring Sun Microsystems in 2010, claims that the Android infringes 37 Java application programming interfaces (APIs), and that Google should have licensed the technology.
The exchange with Oracle lead attorney David Boies grew increasingly heated as Rubin continued to evade.
Rubin pivoted even when facing his internal emails with other Android developers that frequently addressed fragmentation as a key reason to obtain a license from Sun to use Java codes.
“I’m unclear that myself and Sun have the same definition of fragmentation,” Rubin said.
Boies retorted: “Oh, you don’t know.”
“I’m just trying to be precise, Mr. Boies,” Rubin said.
“I am too, sir,” Boies replied.
The exchange echoing testimony last week from Google CEO Larry Page, who was rebuked by the trial judge for hedging on yes-or-no questions.
On Tuesday, Boise pressed Rubin about another 2007 email that in which Sun said it was excited about Google’s Android product, but had concerns about the company’s work creating a “fractured environment” in Java.
“You knew what ‘fractured environment’ meant then, didn’t you, sir,” Boies asked.
“I don’t recall that I did,” Rubin said.
“And you didn’t bother to ask,” Boies asked.
“I don’t recall,” Rubin answered.
Oracle rested its case by trying to skewer Google executive chairman Eric Schmidt about Android presentations to Google heads during the development phase of the phone’s operating system.
Transcripts of a meeting showed that Java was “still a hotspot” for Google in 2007, two years into development of the Android. Schmidt said he didn’t recall the meeting and may or may not have seen the accompanying documents.
Boies then asked Schmidt, a former Sun employee who helped developed the Java language in the 1980s and early 1990s, about open-source software in the Android.
“Did you know that the Apache software you were relying on for Android was not authorized for use in mobile devices,” Boies asked.
Schmidt responded: “I am not aware of the technical details.”
Opening Google’s case, attorney Robert Van Nest recalled Schmidt as the first witness. This time, Schmidt remembered with vivid detail the release of Java during his tenure at Sun and was very aware of the technical details of the software.
Schmidt testified that Sun made a business decision when releasing Java to offer the software for a licensing fee, but for free to other developers. Sun did this to “not scare people away” from the new computer language and help them to embrace it, Schmidt testified.
Schmidt testified about stepping in as Google CEO in 2001 and showed intimate familiarity with both Android’s development and Google’s Java negotiations with Sun.
Android aimed to build a platform that was “free and clear” of the restrictions that are hampering the industry, Schmidt said.
The court heard testimony about an email Schmidt sent to former Sun CEO Scott McNealy, asking for a “partnership” with Sun regarding the Android phone.
“McNealy was interested in tapping a market with a billion people,” Schmidt testified. “He was concerned with economics. He wanted to talk money.”
Van Nest then asked: “If you use someone else’s source code do you have to take a license?”
“Of course,” Schmidt answered. “We offered to pay them money for source code. But we wanted final say about Sun technology since we were writing the check.”
But Schmidt denied that negotiations broke down over money.
“They wanted $30 to 50 million,” Schmidt replied. “We would have paid it since we wanted to build a successful platform. But it was about control, and Sun wanted too much of it.”
With the deal unsalvageable in late 2006, Google began developing its own operating system using a cleanroom approach, Schmidt said, referring to the process by which software is developed and tested as a statistical experiment.
“We didn’t use former Sun people or their technology as far as I was told,” he said.
Schmidt was emphatic that no one ever told him that he “needed a license to use the Java language and APIs.”
In fact, when Google officially announced the Android project and released the developer kit in November 2007, Sun’s then-president Jonathan Schwartz congratulated Schmidt in an email and asked what his company could do to help.
Around that time, Schwartz blogged that he was “pleased to add Google’s Android” to the list of products that implement Java in one way or another.
Schmidt noted that the companies’ business relationship at this time involved Sun distributing Google’s toolbar on Java products.
“By putting this toolbar inside their browser, it was good for us,” Schmidt said. “And we paid Sun to do this. And it was a good deal for Sun.”
Van Nest asked whether Schmidt still met with Schwartz after the Android launch.
“Of course,” Schmidt answered. “Jonathan’s core view is that Java would be successful. And he was glad to have another partner.”
Van Nest asked: “And did he know you built Android on top of Java?”
“I’m sure he did,” Schmidt said.
Schmidt testified about an email he sent to Schwartz in which he said: “Sun will be able to take Android and ‘do whatever you like’ with it subject to the license. This should allow you to, for example, add Java code or anything else on top of Android and make it available.”
Van Nest cut to the chase. “At any of your meetings with Schwartz, did he express that it was wrong to use Java language or APIs,” the attorney asked.
Schmidt answered: “He did not.”
“Did he tell you that you needed a license to use Java APIs in Android,” Van Nest asked.
“He did not,” Schmidt said.
“And did you feel you understood Sun’s position on Google’s use of Java,” Van Nest asked.
“I do. That it was permissible. It was consistent with Sun’s policies at the time,” Schmidt said, underscoring Google’s defense.
Schmidt’s testimony concluded with a denial that APIs are blueprints.
“No, they’re the way you make things happen,” said Schmidt, who testified that he’s been in the computer industry for 40 years. “I want to print this; I want to show this on the screen; I want to compute something. The way you do that is by the interface. It’s not a blueprint for how to do that at all.”
Google’s defense continues Wednesday. Schwartz, the former Sun executive, is scheduled to take the stand this week for his perspective on negotiations with Google.