SAN FRANCISCO (CN) — Less than two weeks before the tech giants face off in a second copyright trial, Oracle asked a federal judge to block Google from presenting "highly confusing and prejudicial evidence" to a jury.
Google says it needs to show that two open source software platforms, Apache Harmony and GNU Classpath, copied the same Java code it is accused of infringing in its Android operating system.
But Oracle attorney Lisa Simpson said Wednesday that evidence will add an extra layer of complexity to the trial and potentially mislead the jury into believing Google had a license to use the code through Apache.
"It's prejudicial to be putting all this extra evidence in front of the jury," Simpson said. "Whether or not Apache was licensed or authorized is besides the point as to whether Google was authorized."
A previous jury found in 2012 that Google infringed Oracle's copyrighted Java code but was deadlocked over whether its use of the code was fair use. A new jury will decide that question in a second trial set to start on May 9.
Google attorney Eugene Paige said evidence of Apache and GNU's use of the code shows the "industry custom and practice" of re-implementing Java interfaces, which goes to the question of fair use.
"I don't know how you can try the case without this evidence," Google attorney Robert Van Nest said.
Simpson implored U.S. District Judge William Alsup to exclude the evidence, pointing out that Apache was not licensed to use the code and therefore neither was Google.
"They stand in the shoes of Apache," Simpson said. "If Apache's unlicensed, they're unlicensed."
The fact that Sun, the company acquired by Oracle, did not take legal action against Apache does not mean Oracle consented to its use of the code, Simpson argued.
"The law does not require Sun and Oracle to hunt down everyone who might be using their code wrong," Simpson said. "They get to decide whether it's worth a candle to go after them."
A statement made by Sun's CEO Jonathan Schwartz in 2007 saying Apache could "ship today" was an explicit approval of the open source platform's use of the Java code, Paige argued.
Simpson countered that Google took those statements out of context. Schwartz was saying Apache could "ship today" if it agreed to accept a technology compatibility kit (TCK) license from Sun; Apache refused to take the license because it did not want to abide by Sun's required field of use restrictions, she said.
"At the end of the day, Harmony put Apache to bed because they couldn't resolve the issues," Simpson said.
Paige called the TCK license a "red herring" because Sun never told Apache to cease and desist from using the Java source code.
"They never said you can't do this," Paige said. "They just said, 'You can't call this Java.'"
Simpson said Oracle has "plenty of evidence" that Google knew the Java interfaces were subject to a license. Adding this evidence to the trial will require Oracle to bog the jury down with mounds of evidence to counter Google's assertions and extend the time of the trial, she argued.
Alsup said that, although he sympathizes with Oracle's argument that this evidence might confuse the jury, it would also be unfair to gut Google's ability to defend itself.
"Anyone accused of willfulness has a right to explain where they got the code," the judge said. "We can't just put duct tape on their mouth and not let them explain where they got the code."
Alsup announced at Wednesday's pre-trial conference that each side will get 15 hours to present evidence during the fair-use portion of the trial, and five hours each for the damages phase of the trial.
He also ruled that Oracle will present its opening statement first, Google will present its evidence first, and Google will go first in closing arguments.
Additionally, the judge granted Oracle's request to inform potential jurors in a background document that it is seeking billions of dollars in damages. Alsup said the mere mention of a figure that high could offend some potential jurors and convince them not to serve on this case.
Jury selection for the trial is scheduled to start on Monday, May 9.