Google and Oracle are in their second week of a trial that’s expected to last for about two months, as Oracle tries to make the case that Java technology used in Google’s Android operating systems violates patents and copyrights its acquired along with Sun Microsystems back in 2010. For the technology world, the case represents high drama: It’s already seen the CEOs of two of the world’s highest-profile technology companies put on the witness stand, and a series of revelations about the behavior of both companies. But the case may also prove to be a turning point in software law: Do software patents and copyrights protect inventors, or stifle innovation?
One of the more interesting revelations was that Google considered entering the mobile phone market with a bang in 2006, pitching a QWERTY-equipped phone to T-Mobile for which Google would subsidize unlimited data access. The idea was that customers would agree they would only be eligible for “self-help” support, and Google would use some of its deep coffers to let those initial “Google Phone” customers have unlimited data access for $9.99 a month. It never happened, but what a different world it would be if phone makers subsidized data plans — which routinely start at $30 a month today, and almost none of which are unlimited.
What else has been revealed so far at trial, where do things stand, and what does the case seem to mean for the future of Android?
Oracle’s copyright case
The Oracle-Google trial has been structured in three phases: the first to consider copyright issues, the second to consider remaining patent issues, and the third to consider damages. Although Oracle originally launched its suit two years ago primarily on the basis of patent infringement, the case has been whittled down to two patent claims. The bulk of the case now centers on copyright infringement: specifically, whether the APIs to the Java programming language are copyrightable, and whether Google violated those copyrights by cooking up its own version of Java rather than executing a Java license with Sun.
Since the crux of the case now centers on copyright, Oracle opened its case with a big bang, putting CEO Larry Ellison on the stand. Oracle’s lead attorney David Boies led Ellison through testimony in which Ellison asserted APIs are one of the most significant things Oracle produces as a software developer, and that both the design and content of APIs are very valuable. Ellison did not deny that the Java language is available for free, but Oracle’s position (and Sun’s before it) was that any company that used Java APIs needed a license. Even companies using Java under the Gnu Public License (GPL) would have to pay for a license to a compatibility test suite (called TCK) to certify their implementations were Java-compatible. In a nutshell, that’s how companies get the Java coffee-cup logo on their products.
Of all the organizations using Java, Ellison testified the only company he’s aware of that has not executed a license is Google.
After Ellison, Oracle attorney David Boies then called current Google CEO Larry Page, Android founder Andy Rubin, and former Google CEO Eric Schmidt to the stand. Boies line of attack focused on Google’s so-called “clean-room” implementation of Java and repeated assertions within Google that the company should execute a license with Sun for Java technology.
A clean-room approach basically means a company puts engineers in a room and tells them to make software that behaves like an existing product, but does not provide access to any source code or copyrighted material to help them out. The idea is that the results will be more-or-less the same, but the underlying technology will be completely independent and not subject to the original company’s patents or copyrights.
Google CEO Page acknowledged that Google had explored the possibility of working with Sun (and executing a license to Sun’s Java technology), but had ultimately decided to go its own way with the “free” version of Java and its own clean-room implementation. Other than that, Page worked hard to say as little as possible in response to Boies’s questions, and even had to be rebuked by the judge for waffling on a yes or no question. To Google’s own lawyer Van Nest, Page said Google went its own way with Java because things like the required TCK compatibility license were “in conflict” with Google’s open-source approach.
Andy Rubin — Android’s founder — backed up Page’s claims. Questioned by Boies, Rubin acknowledged that in December 2005 he felt that Google either needed to make some kind of unique deal with Sun for Java technology, or else execute a license. His reasoning at the time was that it would be bad for Google to appear to oppose the rest of the industry on Java licensing. However — more significantly for Oracle — he didn’t feel a clean-room implementation of Java was likely to work well, in part because of the Android team’s existing knowledge of Java. Many of Google’s Android developers were former Sun employees.
Google did eventually move forward with a clean-room strategy, and the Android team’s prior knowledge of Java may be important to the case: Part of Oracle’s case against Google rests on nine lines of code (a single function) that are identical to code in Sun’s Java. Google’s legal team plans to claim those lines are mere human error, having been written by a Google engineer when he previously worked at Sun. Another major portion of Oracle’s copyright case rests on 37 Java language API packages.
One element of Oracle’s case against Google concerns Tim Lindholm, a former Distinguished Engineer at Sun who joined Google in 2005. Lindholm is more than just a Java engineer — he was on Sun’s original Java team, co-author of the Java virtual machine spec, and architect of J2ME, the version of Java specifically crafted for mobile devices. In a 2010 memo to Andy Rubin, Lindholm indicates Google co-founders Larry Page and Sergei Brin asked him to look at technical alternatives to Java for both Android and Chrome. Lindholm’s opinion was that possible alternatives “all suck,” and recommended Google negotiate a license for Java “under the terms we need.” Oracle interprets this as an indication of culpability: that a top Java engineer at Google acknowledged Google needs a license to Java from Sun.