Taking the stand on Tuesday during the ongoing trial over Google’s use of the Java programming language on its Android mobile operating system, Google executive chairman and former CEO Eric Schmidt strongly defended the company against accusations that it illegally lifted parts of the Java platform from Sun Microsystems.
“My understanding was what we were doing was permissible,” Schmidt said. “From the sum of my experiences and interactions, I was very sure what we were doing was legally correct.”
After purchasing Sun Microsystems in 2010, software giant Oracle sued Google over Android’s use of Java, claiming patent and copyright infringement. The trial kicked off last week at a federal court in San Francisco, and Schmidt is among many big tech names to testify, including current Google CEO Larry Page and Oracle boss Larry Ellison.
While Sun was developing Java, Schmidt was the company’s chief technology officer. In court on Tuesday, he went so far as to call the release of Java a “religious moment.” Following Java’s release, he took over as Google CEO, and in 2005, the search giant purchased a startup called Android that was developing a mobile operating system.
According to Schmidt, he and co-founders Larry Page and Sergey Brin began looking for ways to put the platform on mobile devices. In “typical Google fashion,” he said, they only had a vague idea of what they would do with the platform, but they knew that they needed to become competitive in the mobile market quickly. “At the time, we were quite concerned with Microsoft’s products,” Schmidt said. “It’s hard to relate to that now. This is before the iPhone revolution occurred.”
At some point, Google decided that the best way to run applications atop the OS was with Java. In a 2010 e-mail entered into evidence by Oracle, Google engineer Tim Lindholm told others at the company that he had looked at alternatives to Java and that “they all suck.” And in another 2005 e-mail — also admitted by Oracle — Android head Andy Rubin tells others Googlers that the company must either partner with Sun or buy a Java license in order to use the language atop Android.
With its case, Oracle intends to show that although Google realized it needed a license, that it did not acquire one, and that it then illegally mimicked — or even copied — Sun code when building the application program interfaces (API) for Android. APIs are akin to an instruction manual for computer code, and Oracle claims that Google violated its copyrights in building 37 of these APIs.
On Tuesday, Schmidt said that Google did not need a license to create its own version of Java. But Oracle counsel David Boies said that Google was the only company using Java’s APIs without a license, and he inferred that Google had always intended to utilize the Sun’s Java APIs. Schmidt said that Google had planned to use Java from the start of the Android project, but he also said that he didn’t agree with the vocabulary Boies used in describing the Java programming language and platform.
“An interface is a specification. A name,” Schmidt said curtly. “There’s a collection of those names that forms the standard that Java uses. We, Google, implemented those interfaces in our own way.”
“Just to be clear,” Boies responded, “you copied the 37 Sun Java API specifications?”
“We used the interface names, which is how one does this, and then did our own implementation of those services,” Schmidt said.
“Are you saying is that the only thing you copied was the names?” Boies asked. And Schmidt said “yes.”
Boies then asked for further technical details, but Schmidt said he wasn’t briefed on these details. He even said he does not know about the technology compatibility kit (TCK) license — a license that ensures Java application still works with alternatives to Sun Java platform — because it wasn’t around when he was at Sun. “We’re talking over 20 years. Things change,” he said.
But Schmidt did recount his discussions as Google CEO with Sun’s then-CEO Scott McNealy over a potential partnership on Android. These discussions were mentioned earlier in the trial, and according to Schmidt, Google and Sun looked at ways to jointly develop pieces of the mobile operating system. But the negotiations quickly reached an impasse.
“I’m worried about how we’re going to replace the revenue,” read a piece of e-mail evidence written by McNealy. “This is likey going to submarine.”
Schmidt called this a typical Sun response. “I interpreted this as, ‘We need money from you,’” he said. “[McNealy] understood the value of a billion users.” Later, negotiations broke down as it became clear Sun would not allow Google to touch the Java source code. This was the main issue, Schmidt said, not the $30 to $50 million Sun wanted for the partnership. “We would have paid that,” he said.
So Google began what it calls a “clean room implementation” of Java, ostensibly working from scratch to build a new version of the Java platform on its own. Prior to Schmidt taking the stand, Android boss Andy Rubin testified for the second day running, and Oracle’s Boies asked whether Google had truly created a clean room version of Java. In an e-mail from the time Google was originally developing Android, Rubin told other Googlers: “I think a clean room implementation is unlikely because of prior knowledge…. Anyone with specific knowledge especially those from Sun are tainted and would be bad.”
On Tuesday, Rubin sidestepped many of the questions because, he said, he was confused about the vocabulary Oracle’s counsel was using, especially the word “fragmentation.” Bries was attempting to show that Google was aware that it “fragmenting” the Java platform in creating a new version of the platform on Android.
According to Schmidt, in building its version of the Java platform — known as the Dalvik virtual machine — Google’s team of engineers did not run afoul of the law. “It involved a team that didn’t use Sun’s intellectual property, so I was told,” Schmidt said. “[Sun] was extremely aware of our implementation.”
Schmidt said that Jonathan Schwartz — who took over as CEO of Sun when Scott McNeely stepped down — was aware that Google was using Java, had no objections, and never said Google needed a license. Robert Van Nest, Google’s lead counsel, displayed a blog post from Schwartz that encouraged Google’s Android work.
After Schmidt left the stand, Oracle rested its case in the copyright phase of the trial. (Google then recalled him for their case). Two more phases — focused on Oracle’s patent accusations and damages Google may be required to pay — are still to come.
Correction: This article has been modified to correct the year of the 2010 Tim Lindholm e-mail
Last updated: 9:30 PM PT
As the second week of the Oracle-Google trial got underway Monday, Andy Rubin, the man behind the
Android platform, took his turn on the witness stand. Oracle’s lead lawyer, David Boies, quickly got to his main point in taking Rubin through a series of emails from 2005 and 2006.
He established that Rubin knew that he didn’t need a license for the Java programming language, but that the emails made clear during that period of Android’s development he thought Google would need a partnership with Sun or a TCK license from Sun, and that the java.lang APIs were subject to copyright.
“Those were options at the time,” Rubin said regarding whether to partner with Sun or acquire a license.(Credit:
Boies then went on to Rubin’s email statement that a “cleanroom version of the Java Virtual Machine (JVM) would be unlikely because of the Android team’s prior knowledge of Java. Several of them were key members of Sun’s Java development group.
“I think that is reading a lot into that small sentence,” Rubin said.
Boies re-read the sentence to Rubin.
“We were contemplating development. At this time I am unsure as to whether it had begun or not. We hadn’t actually made a decision to implement a cleanroom VM at this point,” Rubin said
Boies pointed Rubin to the Android GPS presentation from July 26, 2005, which he told executives at Google that a cleanroom implementation of the JVM is unlikely.
On October 11, 2005, Rubin wrote Google co-founder Larry Page about the need to take a license from Sun:
“My proposal is 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. Before we release our product to the open source community we’ll make sure our JVM passes all TCK certification tests so that we don’t create fragmentation.”
The smoking gun as it relates the API copyright issue came in a March 24, 2006 email in which Rubin said he didn’t see how Google could open Java without Sun since Sun’s owns the intellectual property and the brand.
Boies asked Rubin if he meant that he needed a Sun agreement or permission. Rubin responded, “Yes, that’s correct.”
Boies then pointed to Rubin’s statement in an email of the same day that java.lang APIs are copyrighted. “You meant copyright by Sun?,” Boies asked.
Rubin responded, “I didn’t exactly say that …in the context of this I think that means that the APIs were copyrighted.”
Oracle is contending that 37 Java APIs used in Android are subject to copyright. In contrast to Rubin’s 2006 statement on APIs, Google’s lead lawyer Robert Van Nest said last week, “This copyright claim is a little crazy…that’s a lawyer made up thing.” Google also maintains that Android’s 15 million lines of code don’t infringe on any Oracle intellectual property. Oracle is asking for $1 billion in damages from Google.
Rubin’s testimony with Boies will continue Tuesday morning. Google’s lawyers will call him when they begin their case, and Rubin will have to explain how his thinking or interpretation about licensing and API copyright changed over the years.
Oracle v. Google trial exhibit 12)
See also: Full coverage: Oracle v. Google
See also: Android, Java, and the tech behind Oracle v. Google (FAQ)
See also: Google’s Tim Lindholm faces off with David Boies on Java license
See also: APIs take center stage at Oracle-Google trial
Google’s Android system isn’t “critical” to the company’s success, although it’s an “important” part of its future, according to testimony this week from Google CEO Larry Page as the company tries to defend itself in its legal battle with Oracle.
Google and Oracle’s courtroom clash began Monday. At issue is whether Google used Oracle’s Java technology within its Android operating system without obtaining the necessary licences, with Oracle seeking damages as high as $1 billion.
Page dismissed claims that Android was a critical part of the firm’s future, as he was questioned by lawyer David Boies, who also cross examined Bill Gates in the 1990s during Microsoft’s famous anti-trust lawsuit, Reuters reported.
Page’s claim that the system isn’t vital to the firm comes as Google prepares to part with $12.5 billion for the purchase of Motorola, chiefly to take ownership of the firm’s patent portfolio to help it fend off numerous patent lawsuits being leveled against the platform.
Under further questioning from Google’s own lawyers, Page admitted Google wanted to use the Java technology developed by Sun Microsystems, subsequently bought by Oracle, but had been forced to take other routes.
“It would have saved us a lot of time and trouble to use Sun’s technology. When we weren’t able to have our business partnership, we went down our own path,” he said.
Page is likely to return to the courtroom to face further questioning as the trial continues.
On Tuesday Oracle chief executive Larry Ellison said he had mulled over the idea of the company launching its own smartphone as well as possibly acquiring another vendor such as Research in Motion or Palm.
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Google CEO Larry Page took the stand on Wednesday during the company’s ongoing court battle with Oracle over the use of the Java programming language on Google’s Android operating system. Though he responded to questioning with mostly evasive answers, Page fared better than Oracle boss Larry Ellison, who appeared flustered during his appearance in court on Tuesday.
Page’s typical response to questions from Oracle counsel David Boies was “I’m not sure” or “I don’t recall.” At one point, the Google co-founder said he did not recall whether his company copyrighted Android’s APIs (application programming interfaces), and when asked if Google’s board of directors was ever told that Android was a “critical asset,” he answered: “It wouldn’t surprise me.”
On Tuesday, Ellison left the San Francisco courtroom with a furrowed brow. But as Page exited the courtroom on Wednesday, there was a smile on his face.
Oracle filed its suit against Google in August 2010, accusing Page and company of deliberately infringing various Java-related patents and copyrights that Oracle acquired with its purchase of Sun Microsystems. The original suit asserted seven patents, claiming infringement by Android’s Dalvik virtual machine, the Android software development kit and other parts of Google’s operating system. In November 2010, Oracle filed court documents that claimed Android’s class libraries and documentation infringed on its copyrights and that roughly one-third of Android’s API packages are “derivative” of Oracle’s copyrighted Java API packages.
Android’s Dalvik virtual machine was built to run software written with the Java programming language. The Java programming language is largely open source — meaning anyone can use it — but there are portions of the platform used to run Java software that remain under copyright.
In court on Wednesday, Oracle attempted to show that Page was complicit as Google lifted Oracle-owned code for use on Android. Oracle counsel David Boies asked repeated questions about Page’s involvement in Google’s attempts to purchase Sun Microsystems — the creator of Java, before the company was bought by Oracle — and about the use of Java’s APIs in Android.
Page was slow to answer questions — often failing to making eye contact — and he ended up saying very little. In many instances, Judge William Alsup spoke up to instruct Page to answer with “yes,” “no,” or “I’m not sure,” and Page typically chose the later — or “I don’t recall.”
In an effort to coax more from Page, Oracle’s Boies broke many of his questions into smaller pieces, but Page remained evasive. As with his video deposition on Tuesday, Page was imprecise even in defining Java. “I think Java is a complex thing, with many, many things,” he said.
The only time Page appeared even slightly off-guard is when Boies asked whether it was a violation of Google policy to have engineers copy someone else’s code. “We didn’t do anything wrong,” Page said, after citing his previous testimony.
Page will likely be recalled to the stand later in the trial. Oracle is working to have a host of emails admitted as evidence that purportedly show that Page had knowledge of Android’s use of Oracle code.
The jury chosen for the trial is primarily composed of non-programmers, and prior to Page taking the stand, Judge Alsup once again described exactly what Oracle is challenging with its suit. Alsup explained that 37 Android APIs — ways for software to communicate with the operating system — are being challenged and that two of these 37 contain nine lines of code copied directly from Oracle’s copyrighted Java code. Oracle also says that there are two files within the same APIs where Google has lifted comments from its Java code.
Oracle says that all 37 APIs may not contain the same source code as its Java code, but that they have the same structure, sequence, and organization and that this means the overall architecture was copied. The company also accuses Google of copying its Java user manual and documentation.
Oracle is not bringing suit because of Android’s use of the Java programming language, Alsup explained, and it is not challenging the creation of Google’s Dalvik virtual machine — the Java-like platform that runs applications on Android. Oracle, he said, is merely challenging the design of those 37 APIs.