Google would have paid Sun's asking price of $30-$50 million to license Java, Google Executive Chairman Eric Schmidt stated at the Oracle vs. Google trial. Google didn't object to the amount of money Sun wanted, but it didn't want to give up too much control over Android. Jurors were shown an e-mail exchange between Schmidt and Jonathan Schwartz, the CEOs of Google and Sun at the time Google developed and released Android.
"We would have paid that," Schmidt said, according to Wired. But when it became clear that Sun would not allow Google to touch the Java source code, Google began work on a "clean room implementation" of Java. Prior to Schmidt taking the stand, Android boss Andy Rubin claimed repeatedly, during his testimony on Monday and Tuesday, that this is what Google has built. However, an internal email from Rubin makes clear how difficult this would be.
I think a clean room implementation is unlikely because of the team[']s prior knowledge, and it would be uncharacteristically aggressive of us to position ourselves against the industry.
ComputerWorld reports another exchange between Rubin and Oracle's attorney David Boies, about an email in which Rubin wrote that the Java.lang API was covered by copyright.
"You meant copyrighted by Sun, yes?" Boies asked.
"I didn't say that," replied Rubin.
"But you meant Sun, yes?" asked Boies.
Rubin: "Yes, in the context of this I think that I meant the APIs were copyrighted."
"By Sun?" Boies pressed.
"Yes," replied Rubin.
Former Sun CEO Jonathan Schwartz took the stand on Thursday and stated that Sun considered Java's APIs to be open. Comparing the Android case to that of Apache Harmony, Schwartz explained that if the Apache Software Foundation wished to release a product that implemented Java APIs through Apache Harmony, it could do so without a license - so long as it didn't call it Java. However, CNET reports, he also made it clear that Sun was not entirely happy about what Google was doing with Android
We didn't like [what Google was doing with Android], but we weren't going to stop it by complaining about it....We saw a handset bypass our brand and licensing restrictions...we decided to grit our teeth and support it so anyone supporting it would see us as part of the value chain. For example, developers could use Sun's Java developer tools NetBeans to write applications. Sun developed JavaFX, which could run on top of the Android stack.
During somewhat rancorous cross-examination, Oracle counsel Michael Jacobs pushed Schwartz to state that this was describing Sun's business agenda, as opposed to the firm's legal position. "I'm there to define our business strategy - not to write our contracts," Schwartz stated according to ZDNet. Jacobs reportedly also asked whether, upon the closing of the Sun-Oracle merger, Schwartz had been terminated as CEO. "I believe I resigned. They already had a CEO," Schwartz replied.
Finally, on Friday, Oracle's president and CFO, Safra Catz, testified about how she and her colleagues at Oracle approached and tried to get the company to pay for a license to Java. But Google insisted that it had only used open-source material properly, and didn't violate any Oracle IP rights.
The trial has also revealed some Android revenue numbers, which Google doesn't normally publish. According to The Verge, a Google presentation from a July 2010 forecast $278.1 million in Android revenue, made up of $158.9m on ad sales and just $3.8m on app sales; considerably less than Google makes on iOS devices. Google also expected to sell some 10 million Android tablets a year in 2011 and 2012 and capture up to a third of the tablet market. If Oracle is successful these figures could be important, as Oracle wants a percentage of Google revenue in damages.
Closing arguments on the copyright phase of the trial are expected Monday, with a jury verdict potentially also happening next week. Thereafter, Oracle's two remaining patent claims will be considered (the firm's request to assert a third patent has been declined by the judge). The jury have been told to assume that APIs are copyrightable, although Judge William Alsup will only rule on whether they actually are after the jury reaches its verdict.
To muddy the waters still further, Google has asked the court for a judgment that would invalidate at least a portion of the copyrights Oracle claims over Java APIs, on a legal technicality. Google is arguing that the source code and object code for implementing Oracle's APIs are not derivative works of the copyrighted work as a whole. Further, Google said the alleged copying of Java code is insignificant, and therefore non-actionable. From Google's brief (via Groklaw)
Google is therefore entitled to Judgment as a Matter of Law on the following grounds. First, Google is entitled to judgment as a matter of law that the source code and object code implementing the 37 API packages are not derivative works of Oracle's specifications. Second, Google is entitled to judgment as a matter of law that the method signatures are not protected by copyright under both section 102(b) and the short words and phrases doctrine. Third, Google is entitled to judgment as a matter of law that the alleged literal copying is de minimis and thus non-actionable. Fourth, Google is entitled to judgment as a matter of law that its specifications for the 37 API packages do not infringe Oracle's specifications. Fifth, Google is entitled to judgment as a matter of law on the entire copyright case because Oracle has failed to prove the actual contents of the works that are the subject of its copyright registrations. Sixth, to the extent that the Court accepts Oracle's newly advanced "collective work" argument, Google is entitled to judgment as a matter of law of non-infringement as to all constituent elements of the registered works, because Oracle has failed to prove authorship of any component parts of the works.
Oracle argued that the 37 API packages "comprise the works as a whole for purposes of comparison to the infringing product," contrary to Google's interpretation that the entire Java platform is the work as a whole under the terms of Oracle's copyright. This too has been left unresolved at the time of writing. So even if the jury decides in Oracle's favour, the victory could turn out to be somewhat hollow.
