Oracle Chips at Google Fair Use in Java Redux

SAN FRANCISCO (CN) — In the latest twist in the $9-billion Oracle-Google copyright trial, Oracle on Monday sought to debunk claims that Google used open-source Java interfaces in its Android platform that are exempt from copyright restrictions.
Calling the final witness to bolster its fair-use defense, Google argued that 37 application program interfaces, or APIs, it’s accused of illegally lifting from Oracle were available for free through open-source software licenses, like Open JDK.
“All of Open JDK is free so you can use some pieces of it or add to it,” computer scientist Dr. Owen Astrachan told a 10-member jury Monday.
Astrachan said the fact that Google used “a very small percentage” of Java to create an entirely new and “transformed” mobile platform pointed to its use being fair use.
Following the testimony, Oracle attorney Annette Hurst immediately objected to Astrachan testifying on the legal standard of “transformative,” which falls under one of four factors required to determine if use of copyrighted material is fair use.
U.S. District Judge William Alsup told Hurst that he could not bar witnesses from using English words like “transformative” just because they also happen to be legal terms.
The judge warned the jury that Astrachan is not qualified to testify on legal definitions and that they should only regard his use of “transformative” in the limited sense of the English word.
On cross-examination, Hurst sought to tear down Astrachan’s claims that Google did not require a license from Sun Microsystems, acquired by Oracle in 2010, when it used 37 copyrighted Java APIs to create Android in 2009.
Hurst showed the Google witness a copy of the Association for Computing Machinery’s code of ethics, which states: “Copies of software should be made only with proper authorization. Unauthorized duplication of materials must not be condoned.”
In answering Hurst’s questions, Astrachan acknowledged when he teaches programming classes, he often asks students how many have illegally downloaded movies or music online to drive home the point that they should act ethically as software engineers and never illegally copy the work of others.
The Oracle attorney also asked Astrachan, a proponent of open-source software, how the open-source field could survive if software developers like Google refused to play by the rules and make their software available for all to use as required by licensing restrictions.
Astrachan refused to take the bait, saying Hurst’s question unfairly applied a general concept to a very specific situation that involved Google lifting a miniscule amount of Java libraries and implementing code.
“If I used the entirety of a piece of software without paying attention to the license, that would be an issue,” Astrachan said. “I don’t believe that’s a reasonable question.”
Hurst shot back by showing a video from Astrachan’s 2011 deposition, in which the computer scientist reluctantly answered that if all open-source software developers disregarded licensing terms, it “might change the landscape.”
On redirect, Astrachan told the jury that Google’s use of the Java packages to create a new mobile platform “absolutely transformed” them into something new — in the English sense of the word, of course.

Oracle Calls First Witness
     After Google rested its defense case on Monday, Oracle called its first witness to the stand — Oracle co-CEO Safra Katz — who attempted to discredit Google’s narrative that Oracle acquired Sun Microsystems just to “cook up” this lawsuit.
Katz told the jury that when Oracle first announced its bid to purchase Sun in April 2009, the company considered Java “the single most important software asset” the company had ever acquired.
Google attorneys raised hearsay objections when Oracle tried to show the jury email exchanges between Katz and former Sun CEO Jonathan Schwartz, which refer to “battles” with Google/Android over its use of Java.
Alsup allowed Oracle to submit the April 2009 email as evidence for the “limited purpose” of countering Google’s claims that Sun never sought to enforce the Java copyrights until Oracle took over.
“He told us they’d been talking with Google and trying to get them to license Java, and that Android was an unauthorized fork of Java,” Katz said of her correspondence with the former Sun CEO.
Katz described “forking” as breaking apart the community of software developers that used Java for its “write once, run anywhere” selling point. The community was being undermined by Android’s incorporation of Java and free distribution of the Android platform, she said.
The trial day ended with a dispute over whether Oracle could show the jury a document submitted to the European Commission in July 2009 as part of the EU regulator’s pre-authorization review of the Oracle-Sun merger.
Alsup said the document would be considered hearsay unless Oracle could show a document submitted by Sun, rather than one in which Oracle submitted answers ostensibly provided by Sun.
Katz was expected to continue her testimony on Tuesday. Oracle is expected to present 10 additional witnesses in the coming days before the jury settles the question of whether Google’s use of the Java APIs was fair use.
If the jury issues a verdict in favor of Oracle, a second trial phase will begin to determine how much of the $9 billion in damages Oracle is seeking will be awarded.

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