This is it. The trial begins today in US District Court in San Francisco in the Oracle v. Google trial. We have two reporters there today, if they are able to get in. It will be packed today, because all the potential jurors will be crowded into the courtroom, filling half of the seats. After that, once the jurors are chosen, it should be easier to get in. In any case, if you stop back by tonight, we'll have reports for you. [PJ: Note update: 1st word is in, and so is at least one of our reporters.]
Meantime, here's an article about the judge, the Hon. William Alsup, that I'm sure you'll enjoy:
"(He) is careful and conscientious," said K.A.D. Camara, who represented a tech company in a patent feud with Apple. "He has, of course, presided over many technology cases. It's good for the law that the (Oracle) case was assigned to him." "A tech company" would be Psystar in the case Apple successfully brought against it not over patents but over copyrights. When a lawyer who lost before a judge praises the judge, you know he's a good and fair judge.
So let's enjoy the show. We have some more last-minute filings, too. And I'll try not to hyperventilate over Oracle's bizarre and extreme copyright claims. I keep reading in the media that Oracle is asking for billions or hundreds of millions. That was then. This is now. It's about a few millions now, and that's only if Oracle prevails. The handful of bully patents Oracle started with have mostly been tossed out as invalid by the USPTO in reexaminations. There is part of one left standing, which
isn't worth a lot, and another that the USPTO preliminarily ruled is invalid, but it awaits a final stamp that it's so. It isn't worth much either. Meanwhile the case goes forward. That's what is so remarkable, that Google in that sense, the money part of it, has already won. I won't link to the articles with totally wrong information, but the Washington Post's Karen Gullo has it closest to correct. What matters now is: can Oracle copyright APIs and can it copyright a computer language? That's what the trial is now about, and the answers to both questions matter enormously to the software industry and to FOSS. Oracle wants an injunction, of course, but it seems so unlikely that could happen on these facts that it's apparently just a tactic to get Google to do what Oracle wants, as Oracle lawyer David Boies just admitted.
And if you are free any business day between now and the end of June and would like to attend the trial for us too and be our eyes and ears, please email me at pj2 at groklaw.net and I'll set you up and answer any questions you might have.
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As you see, Oracle is trying to get the court to forbid Google from defending itself with its license and implied license defenses. They say they haven't answered all the questions thoroughly about that in interrogatories. And there's no evidence Google knew about or relied on the statements of then-CEO Jonathan Schwartz. Talk about desperate. Everyone knew about the statements of Jonathan Schwartz. *I* even knew about it. How could Google *not* know? Anyway, here's Oracle's Introduction to give you a taste of its argument:
04/13/2012 - 916 - Declaration of David Zimmer in Support of 870
Administrative Motion to File Under Seal ORACLE AMERICA, INC.S
ADMINISTRATIVE MOTION TO FILE UNDER SEAL filed byGoogle Inc..
(Attachments: # 1 Proposed Order)(Related document(s) 870 ) (Van Nest,
Robert) (Filed on 4/13/2012) (Entered: 04/13/2012)
04/13/2012 - 917 - ORDER GRANTING SECOND STIPULATION RE TRIAL PROCEDURES
by Hon. William Alsup granting 905 Stipulation.(whalc1, COURT STAFF)
(Filed on 4/13/2012) (Entered: 04/13/2012)
04/14/2012 - 918 - Witness
List by Oracle America, Inc. Rolling List of Next Ten Witnesses. (Muino,
Daniel) (Filed on 4/14/2012) (Entered: 04/14/2012)
04/15/2012 - 919 - Witness
List by Oracle America, Inc. Rolling List of Next Ten Witnesses. (Muino,
Daniel) (Filed on 4/15/2012) (Entered: 04/15/2012)
04/15/2012 - 920 -
Administrative Motion to File Under Seal the redacted sections of Google
Inc.'s Motion in Limine re Presentation of Financial Evidence and
Testimony filed by Google Inc.. (Van Nest, Robert) (Filed on 4/15/2012)
04/15/2012 - 921 - MOTION in
Limine re Presentation of Financial Evidence and Testimony filed by
Google Inc.. Responses due by 4/30/2012. Replies due by 5/7/2012.
(Attachments: # 1 Proposed
Order)(Van Nest, Robert) (Filed on 4/15/2012) (Entered: 04/15/2012)
04/15/2012 - 922 - MOTION to
Exclude Evidence Regarding License, Implied License, and Equitable
Estoppel Defenses filed by Oracle America, Inc.. Responses due by
4/17/2012. (Attachments: # 1 Exhibit A, #
2 Exhibit B,
# 3 Exhibit
C, # 4 Proposed
Order)(Jacobs, Michael) (Filed on 4/15/2012) (Entered: 04/15/2012)
04/15/2012 - 923 - Exhibit
List Joint Submission of Corrected Exhibit List by Oracle America,
Inc... (Peters, Marc) (Filed on 4/15/2012) (Entered: 04/15/2012)
04/15/2012 - 924 - RESPONSE
(re 922 MOTION to Exclude Evidence Regarding License, Implied License,
and Equitable Estoppel Defenses ) filed byGoogle Inc.. (Attachments: # 1
# 2 Exhibit
B, # 3 Exhibit C, #
D)(Van Nest, Robert) (Filed on 4/15/2012) (Entered: 04/15/2012)
04/15/2012 - 925 - RESPONSE
(re 921 MOTION in Limine re Presentation of Financial Evidence and
Testimony ) ORACLE AMERICAS OPPOSITION TO GOOGLES MOTION IN LIMINE RE
PRESENTATION OF FINANCIAL EVIDENCE AND TESTIMONY filed byOracle America,
Inc.. (Holtzman, Steven) (Filed on 4/15/2012) (Entered: 04/15/2012)
04/15/2012 - 926 - Statement
Joint Statement of the Case for Voir Dire by Google Inc., Oracle
America, Inc.. (Peters, Marc) (Filed on 4/15/2012) (Entered: 04/15/2012)
I. INTRODUCTION Google has already frostily replied:
Pursuant to the Court’s procedure for trial motions (Dkt. 835, Dkt. 890), Oracle moves to preclude Google from offering evidence regarding its license, implied license, and equitable estoppel defenses that Google failed to identify in its interrogatory responses.
Google has asserted a license defense in this case, claiming that its use of the patents-in-suit was licensed. Google has also asserted defenses of implied license and equitable estoppel. Oracle propounded interrogatories seeking Google’s legal and factual bases for these defenses, but Google’s responses failed to provide bases for all elements. Among other things, Google did not identify a license to support its license defense, and did not disclose any evidence of actual or reasonable reliance in support of its implied license and estoppel defenses.
In particular, Google did not claim in its interrogatory responses that it was aware of, much less relied on, any statement by Jonathan Schwartz that purportedly excused Google’s use of Java API specifications and patents. Accordingly, Google should not be allowed to offer into evidence TX 2260 (Nov. 5, 2007 blog post by Jonathan Schwartz) or any other evidence not disclosed in its interrogatory responses. Indeed, on March 28, 2012, the Court asked Google counsel whether “somebody from Google going to testify they saw [Mr. Schwartz’s statement] and relied on it?” Counsel for Google was unable to identify any Google witness who will do so. (Mar. 28, 2012 Tr. at 91:21-92:5). Google has never identified any witness who will do so.
Google should be held to its disclosures.
Evidence regarding Google’s defenses that goes beyond what Google provided in its interrogatory responses should be excluded from trial.
I. INTRODUCTION In short, more 11th-hour tricks from Oracle, which must be very, very worried about this litigation to even try something like this.
Close to nine months after the summary judgment deadline, and on the literal eve of trial, Oracle has filed a disguised summary judgment motion attacking Google’s equitable defenses. The motion should be denied.
First, Oracle failed to give Google timely written notice of its motion, notwithstanding the parties’ express agreement requiring such notice. Dkt. No. 890, ¶ 3. Instead of providing written notice by 3:00 p.m. today, Oracle mentioned that it might file this motion—not that it would do so—on a telephone call about the parties’ opening argument presentations. It never followed up with any further communication, much less the required written notice, until filing the motion just after the 6:00 p.m. deadline.
Second, as already noted, this is not a true motion in limine, but a motion for partial summary judgment on three of Google’s equitable defenses. It is untimely and contrary to the Court’s instruction to the parties not to bring summary judgment motions and call them motions in limine.
Third, the substance of Oracle’s complaint is baseless. Indeed, the only document Oracle actually identifies in its categorical motion is a blog post from Jonathan Schwartz which Google actually identified by date in its supplemental interrogatory responses. Oracle is well aware of the other facts supporting Google’s equitable defenses, including deposition testimony from, for example, former Google CEO Eric Schmidt about conversations he had with Jonathan Schwartz.
For all those reasons, the Court should deny Oracle’s motion for summary judgment on Google’s equitable defenses.
There is also a joint statement of the case, which means it's what the parties agree is true, and it will be read to the jury during jury selection:
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.
v. GOOGLE INC.
CASE NO. CV 10-03561 WHA
JOINT STATEMENT OF THE CASE
Date: April 16, 2011
Dept.: Courtroom 8, 19th Floor
Judge: Honorable William H. Alsup
Pursuant to Paragraph 8 of the Court’s Guidelines for Trial and Final Pretrial Conference in Civil Jury Cases (last revised March 5, 2012), Oracle America, Inc. and Google Inc. provide the following joint statement of the case to be read to the jury during voir dire:
STATEMENT OF THE CASE
This is a case about alleged infringement of copyrights and patents. The plaintiff, the entity that has brought this case, is Oracle America, Inc. The defendant in this case is Google, Inc. Oracle America accuses Google of infringing particular Oracle America copyrights and patents.
Oracle America was formerly known as Sun Microsystems. When Oracle Corporation bought Sun in January 2010, Sun’s name changed to Oracle America. The copyrights and patents in this case were originally assigned to Sun Microsystems, and stayed with the company when it was renamed Oracle America. During this trial, Oracle America may sometimes be referred to as “Oracle” or “Sun.”
The trial of this case will proceed in separate phases.
Phase 1 of the case will relate to Oracle’s copyright claims. Oracle claims that Google infringes Oracle’s copyrights by copying Java software and related documentation into Google’s Android software and related documentation. Google claims that certain aspects of the copyrighted works do not qualify for copyright protection, and that Google’s use of certain information qualifies as a “fair use” under copyright law. Google further claims that, because of Sun’s and Oracle’s prior actions, inaction, and statements, Oracle should not be permitted to enforce these copyrights against Google. Your job at the end of Phase 1 will be to decide whether Google is liable for infringing Oracle’s copyrights.
Phase 2 of the case will relate to Oracle’s patent claims. Oracle claims that Google’s Android software and mobile phones infringe two U.S. Patents. Google claims that, because of Sun’s and Oracle’s prior actions, inaction, and statements, Oracle should not be permitted to enforce these patents against Google. Your job at the end of Phase 2 will be to decide whether Google is liable for infringing the asserted claims in these two patents.
Phase 3 of the case will relate to the damages, if any, attributable to any infringement by Google of Oracle’s copyrights or patents, and the question of whether any such infringement was willful.
Dated: April 15, 2012
MORRISON & FOERSTER LLP
By: /s/ Marc David Peters
MORRISON & FOERSTER LLP
[lawyers listed, contact information - see PDF]
BOIES SCHILLER & FLEXNER LLP
[lawyers listed, contact information - see PDF]
[lawyers listed, contact information - see PDF]
Attorneys for Plaintiff
ORACLE AMERICA, INC.
Update: First word from the courthouse, which is in a break right now, after which the jury selection will continue. But prior to that, there was some discussion about pre-trial motions. Here's the very brief report from our guy before he runs back in:
Google objects to slide [to be used] in Oracle's opening statement to the jurors citing $7.4B purchase of Sun as being prejudicial. That makes two of us who are suspicious of Oracle's motives. $$$$$$$$$ Is there anybody left who looks at Google's success and *doesn't* think about ways to try to get some of Google's money?
Oracle states that Java "was the most significant software purchase" that it had made.
Judge Alsup: Why isn't Google ecstatic at the opportunity to cross-examine Larry Ellison on this issue?
Judge Alsup to Oracle: If you try to throw around big numbers in front of the jury just to inflate damages, you are doing so at your own risk; "there is no proof that Java is worth $7.4B. I am suspicious of your motives."
On break now, jury selection continuing.
The Mercury News's Brandon Bailey has a bit more on that, plus this:
The judge ruled on a host of last-minute issues Monday morning before starting the process of screening prospective jurors. After warning that the case may take up to ten weeks, Alsup excused one candidate who works at Oracle and another who is friends with an Oracle employee. He told the remaining candidates to avoid seeking information about the case from sources outside the courtroom. They should not, he added, look it up on Google.
Update 2: Live tweeting from the courtroom:
- James Niccolai: The 2 lawyers are out (we don't need no boffins deciding this trial) and the jury is set. We might get #Oracle's opening statement today..
- Dan Levine: Interesting: Oracle tossed the insurance lawyer, and Google tossed the patent lawyer. We have now have a jury!
- Brandon Bailey: Small world - one of the first prospective jurors works for Oracle and previously interned for its chief counsel. Judge: You're excused.
- Ginny LaRoe: Alsup's court so packed security won't let in expert wit lawyer John Cooper of Farella Braun. My story on Cooper ($)
Update 3: Jacobs is doing the opening statement for Oracle. Brandon Bailey just tweeted:
Update 4: Dan Levine just tweeted: "Jacobs did not draw a single objection during his opening. Made the techy stuff easy to understand. Can see why he's in demand. ...
Day one of Oracle/Google is in the books!"
Google's opening statement will be tomorrow. And yes, Jacobs is beyond fabulous. That's who won for Novell against SCO, along with Sterling Brennan of Workman Nydegger, another really effective lawyer, now representing Novell against Lodsys (here's Brennan in action doing closing arguments for Novell against SCO).
Maybe I shouldn't say that. I should say nothing about who is fabulous. Next thing that happens is the Dark Side hires them.
Update 5: Joe Mullin has a wrap up of the day for ars technica, including this:
At one point, Jacobs acknowledged that there's precious little evidence of actual copying in the case. The allegation is that it's the design of Java APIs that Google emulated. Still, he did show a few lines of code to the jury that Google is alleged to have copied "line for line" from Java code. "It's not a lot, but copying is copying," said Jacobs. Building Android "was not done in a clean room. It was not done without looking at Sun's stuff." And I'm embarrassed for him that Jacobs had to say this misleading bit:
After that brief explication, Jacobs wasted no time in showing jurors an e-mail from Google engineer Tim Lindholm to Andy Rubin, the head of Android. That message has been the subject of contentious litigation already, and Google lawyers tried, unsuccessfully, to keep it out of court. It reads in part: Sigh. Lawyers have a hard knock life. They have to argue things that they might not personally want to, sometimes. Look at the date of the email, see above. And Lindholm is not a lawyer. He's a programmer, asked to investigate alternative software for Android after Oracle threatened to bring this litigation, not before, and definitely not before Android was already complete, all of which Mr. Jacobs must know, since Google has pointed it out.
"What we've actually been asked to do (by Larry and Sergei) is to investigate what technical alternatives exist to java for android and chrome. we've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."
It was the first of many e-mails Oracle presented that show Google knew it needed a license for Android, but just blew it off. "This was not a mistake, this was not inadvertence," said Jacobs. "The decision to use Oracle intellectual property in Android was done at the highest levels of Google with consciousness and awareness of what's going on."
(Google has argued that the Lindholm e-mail is simply a strategic discussion of what to do, that was only initiated after Oracle filed suit.)
To me the Lindholm email is proof that Google did *not* know that Oracle would be upset with Android until 2010 when Oracle showed up threatening to sue if Google didn't pay them. After all, the reaction was to investigate alternatives. The fact that they needed or felt they needed to look into that is, to me, proof there was no attempt to get away with anything, because if they'd planned it all along, they would have done that investigation long ago and they would have had a Plan B ready, just in case.
I hope, personally, that Google finds some alternative software or designs some and just works away from Java someday. It's not worth all this.
Update 6: Our second reporter, Elena Elkina, a law student, just filed the notes for the entire day, so we finally get to hear the details, not just the overview:
Parties in attendance: We'll have another report from reporter 1, mirror_slap after he has it done. Meanwhile, Law.com's Ginny LaRoe has this tidbit, with a picture of Michael Jacobs:
Judge prior to jury selection:
Michael A. Jacobs,
Dan Muino, MOFO
Chief Financial Officer from Oracle
General counsel of Oracle
Robert Van Nest
Lucebera, corporate representative from Google
Judge did not like people in the front row on the jury side. He does not want people so close to the jury. There are people in that row who are here specifically for jury selection only (Oracle side). [PJ: That's likely their jury specialists, who advise them on who to accept and who to dump overboard. Corporate firms do that.]
[Reporter Note: it seems that the Judge is more friendly towards Google than Oracle. Google's lawyer, Robert Van Nest, speaks much softer than Oracle's. I really like Google's lawyer.]
Judge explained the process of filing motions. This is a public trial and press and public can see and hear and have access it. If there is something that will be released about your clients or cause embarrassment, unless it is a Coca-Cola case, it will be released to public. [PJ: He means don't overseal. The public is invited for a reason.]
One of the issues the judge will decide related to copyright infringement. It is not only a legal question but it also depends on the act in the records of the trial, therefore, you must prove it during the trial.
Judge described the difference between being conclusive or proved: Before I rule on Oracle’s motion, please submit a brief re: items be conclusive or proved by 5 pm today (regarding items Oracle has pending). If both of you agreed it is good, if not, we will have to see.
Judge: We need a clear-cut way to use terms, like specification. User manual or technical way in which it works, which might not be user manual. I urge you to be clear with your vocabulary when you talk to the jury.
Oracle’s objections: Topic on the independent issue of law, and it is different from the facts. For the jury to hear the names.
Google: would like to tell the jury certain items.
Judge said that we will not show any law or judges' decisions. Denied Oracle objections.
Oracle showed some records from the website and the judge said that they can make a statement but this is about it. No records showing.
Oracle motion: Schwartz's statements cannot be admitted. Judge denied.
Google requested to state that Java language was open sourced. And asked to present the slide. Judge allowed.
Google asked that the number of Oracle's claim is pretty high and jury should not hear that. It has no bearing on the issue itself or Java.
Oracle objected saying that Java asset was a significant asset and Java was the most significant acquisition of Sun. Oracle has a witness to testify about it. Judge allowed.
Judge said that even though he denied Oracle’s motions previously, he trusted that Google’s attorney will use the number accordingly and said to Oracle that he has suspicious about Oracle’s motives in this case. And Oracle should be careful.
Google: Slide 84 is an exhibit that references Java lawsuit. It was never shown to any witness in the case. It will not make the difference in the case. Oracle: said they this slide shows the contrary idea and Google knew that Sun was very concerned about Java and Sun would assert its life. The legal issue for Google has issue with Java and Android. This email threat shows that Sun was concerned about legal risk and was not quiet. It was before Oracle purchased Sun. The communication included threat. Judge decided not to rule on it now. It is too prejudicial. He thinks that Oracle can make an argument openly about Google and who knew about Sun’s concern.
Google: Slide 8 with licenses on it that are not relevant to the case. They have not been relied upon by the experts. Oracle: said that this slide is relevant to copyright. There is a mechanism established that is relevant to Java. Our mission in this lawsuit is to protect Java. Judge allowed this slide. But judge stated that issue here is not Java or Android; it is a very specific issue of Java that is protected by copyright and patent. We should not go with a case Java v Android.
Google: stated that Oracle issued a press release basically with an opening statements. We should be careful. Judge agreed: refrain from press releases during the trial. Oracle: was not sure what press release and asked for a copy of it.
Jury Selection Process:
Jury is not ready yet. Judge explained how jury will be seated. Seat number 1 is outside of the box, close to the judge.
Break for 15 minutes.
Jury candidates walked in. Parties introduced themselves. I like how Google introduced ladies first.
Judge explained the case, its length. And a brief description: A few years ago Google came out with a mobile platform, Android, used in mobile smartphones and in this law suit Oracle is accusing Google and Android in violation of copyright and patent and seeks money damages. Google denies these violations. The trial will have 3 phrases with the same jury. 1 is the copyright part, 2 is patents, and 3 is damages, if any liability found.
Judge asked about any diseases that might prohibit them from serving at trial. Everyone seems healthy. Judge is very nice and kind to the jurors.
Judge explained that people on the left side are public and media. This case is a high-profile case, and the judge gave a direct order NOT to look at a TV, radio, internet, newspaper, magazine story, anything about this case. This is important because the case must be decided based on the evidence at trial and not what some newspaper will say. Their articles are point of view only. This is a high-profile case. Also, you cannot talk to each other or friends/family regarding this case. Until case is resolved, no talking about it.
The goal is to seek 12 jurors.
1. A young lady in grey sweater was released since she works for Oracle. Dismissed.
1. Replacement for number 1. Around 40 years old. Male. SF resident. High School (HS) graduate. Works for MTA. No club membership. Goes to the gym. No kids. Not married. Had a case against the city. He is a driver and he got into an accident. He was not named as Defendant. Case was finished. He won.
2. Looks like an Hispanic lady with black color frame glasses. Lives in Oakland. HS and college. Medical office administration. Married and two children. Hobby: time with family. Never served in a jury and never was in law enforcement or in court. Husband is a handyman.
3. Man, middle aged. HS. He works with computers (drawing), machine parts for scientists, no memberships, married, wife is an appraiser, no kids, no prior service in jury, military, had involvement in a case before as a witness.
4. A very tall man, around 40-50 years old. Has master degree. Works in finance department. His hobby: PlayStation 3. Married and she is a lawyer at Tuckerhouse in SF. No kids, no military, no jury or trial experience.
5. An Indian woman around 50. Bachelors in medicine from India. Educator in Fremont high school district. No memberships. She is a creative writer and likes to read and enjoys music. Married and husband is a computer engineer, Rocket incorporated. He is hardware engineer. Two kids of 12 and 21. Prior jury many years ago, no military experience, no trial experience.
6. Asian man around 60. Lives in SF. 11 years of education. Works as a plumber for unified district. Likes fishing. Married, wife not working. 2 boys. Oldest son works as a clerk for SF Superior Court. Was in the Navy. Never a party in court.
7. Asian woman in purple sweater, around 40-50 years old. Works at US Environmental Protection Agency as a secretary. No organizations. Likes shopping. Married, husband is a mechanic. 3 kids, 15, 20, 12 years old. Never in the Army, no court experience.
8. Asian lady in her 30's. Lives in SF , bachelor in architecture. Store designer for Gap. Likes graphic design, running. No kids, single. No military, law enforcement, no party to court.
9. Middle-aged man. Lives in San Mateo. Had JD. Used to work in a law firm, now in-house at CNN Insurance (?) as attorney. No clubs. Likes reading, movies. Married to professor of chemistry, in Notre Dame. Son 9 years old. No prior jury duty, military.
10. Second row begins: Male. Associate of fine arts degree. Worked as photographer. Retired. No clubs. No hobbies, many interests. Divorced. Spouse is probation officer. One son: 36. Prior jury service, a murder case. He looks to be in his 60s, maybe 70. Looks very presentable, a little bit nervous. He has done some law enforcement job. He has been sued but won (auto accident). Also served as a witness.
11. Man. Fremont, BA in business administration. A retirement plan specialist. Belongs to Sierra Club and another recreational organization. Married to a flight attendant. One child, 26. Likes hiking and cycling. No jury duty before, no military. Called as a witness twice. Once was a party in small claim representing home owner association.
12. Woman, graduated from Berkeley. She is a program manager at Hewlett Packard (HP). Likes gardening and writing smartphone apps, a gardening app and a weather app. She is familiar with the lawsuit. She does not have opinion about the lawsuit. Married to someone who works for a member of Congress. Has kids. Served on jury before. Never a party, no military. EXCUSED.
12. Woman had heard about the companies in this case. But it would not influence her decision. HS graduate. Belongs to some organizations. Married to someone in Postal Service also. Two girls. Likes gardening. No jury, military. Was in a car accident and she sued the driver but it was settled.
13. Male: Bachelors in computer science. Director of Engineering at Cisco. No hobbies. Married. Kids. No jury, no military. Current party to litigation (patent infringement case and he is patent advisor). He is not an inventor. Did not hear much about the case. He believes he can be fair and forget what he learned in his own case. He is middle-aged, looks very intelligent, with glasses, around 50-60 years old. Has his own opinion about patents. EXCUSED
13. Woman, never knew anyone but heard about the companies. But it would not influence her decision, she said. BA in sociology and English. Job: teaching but retired. Married. No memberships. Hobbies: Reading, writing, foreign movies, music. Husband a doctor of chemistry works at USSF in dermatology. Two kids, 43 and 44. One works in cinematography, the other is a musician and poet. Served on jury before. Verdict was guilty. No military or law enforcement. Friend asked her to be a witness in court once.
14. Woman. Bachelor in Mathematics. Financial analyst at Charles Schwaub. Likes cooking. Single. Partner is a carpenter. Has prior juror service. No military, no party to any litigation.
15. Man. Master’s degree in library science. Works at SF public library, is a member of American Library Association. Likes sailing. Married. Two sons, one at US Davis and another in HS. Served as juror in Alameda County. No military, court. Judge said that he knows his wife, and the man said it will not affect his decision.
16. Man. Master's degree. Pastor. Member of ministry associations. Likes gardening. Married. Spouse is a secretary at a high school. Daughter 29, son 27. No prior jury service, law enforcement. Long time ago had court experience. EXCUSED.
16. A patent attorney. A litigator. BS in engineering and JD. Worked for a small IP firm in Mountain View. Likes pottery. Not married, no prior jury service. Representing a client in Santa Clara court.
No litigation with patents or patent rights.
Prosecution was with PPO. Secured one. It was re data mining.
Will be able to decide the case based on the records and not supplement it.
Had heard of the companies, Java, Android.
Any history records or practice that may cause concern? --
Will be impartial. She is familiar with law firms. She applied for job at Morrison & Foerster but did not get it. Will not be biased against them. Never heard about the individual lawyers.
Oracle asked: what do you know about Java? She:
Any prosecution in software?
In Santa Clara it is a real estate property dispute case. I represent the plaintiff.
Did you apply to Morrison & Foerster?
Was offended that she didn’t apply to his office. Joking.[Laughter]
She is working on patents for medical devices. She is not comfortable doing software. She does internet, like Group-on application, data miming, databases. EXCUSED.
17. Female. Pediatric nurse. Single, no kids. Likes hiking. No court experience or military.
18. Female. Bachelor in psychology. Works at Nordstrom. No clubs, likes hiking. Married to a tennis professional. No kids. One on the way in August.
Lady in purple raised hardship issues. She has dry eyes and she needs to use drops and she needs to close her eyes to rest. She is not sure how often, every two hours. She can do it in jury room and it would not be problem. Judge decided they can manage it.
No other hardship issues.
Judge asked if anyone knows anyone in the room?
Two jurors know each other, because
they work together. In different divisions.
Oracle's lawyer introduced his firm's other lawyers there that day.
The prospective juror who is a retired lawyer had heard of Morrison & Foerster. But he had not had any business with them.
Google introduced his team.
The same prospective juror might have some cases with them. But he will not be affected by it. He also heard about David Boies but he said he would not be biased.
The lawyers for Oracle and Google then read the list of all the witnesses. Some jurors had heard of a couple of the witnesses, but again said it will not cause them to be biased.
Judge asked if there are any close friends or relatives of any of the jurors who work for either Oracle, Google, or Sun. No hands. Prospective juror 3 said his friend used to work for PeopleSoft which Oracle acquired, but they were laid off.
One juror said his son’s friend’s father worked at Oracle. She quit and it will not affect his ability to be impartial.
Juror 17 had a close friend who works at Oracle. "In meetings we always talk about tech things." Husband is an engineer at Cisco and "I do not know how it could affect me". She was excused.
Judge is friendly and makes a lot of jokes. Really like his style. Very professional, though.
Oracle's three juror objections: the one with views on patents and the one who works for HP, because there is a separate HP suit with Oracle now, and
the one who said that his friend was laid off after the acquisition of PeopleSoft.
If somebody coughs, judge gives away cough drops. Sweet. [PJ: Also pragmatic. He doesn't want anyone distracted.]
Judge said that there could be some familiarity with the case or the parties but it is important that they can do their job. Do any of you read computer magazines? he asked.
The one who works at HP said she reads computer web articles, she likes anything related to her business, mobile phones, software development, she is an engineer, software development. It means internal tools. Such a cool lady in her 60s but very progressive. Really liked her. She has been involved with patents, and she said it will be hard NOT to use her experience.
The one who works for Cisco said likes reading ComputerWorld about video demand. He is the one that said he has his strong opinions about patents. Judge told him that it is OK to have his opinion, but he cannot add anything to the records from it. The prospective juror said it would be hard to ignore his experience.
Both jurors excused. No objections.
General questions to jurors came next:
Parties are familiar and it is OK, but asked if there is anything particularly good or bad about either party that you feel, and if so, whether they thought it could influence their decision.
The retired lawyer said his relative was unhappy when she quit working at one of the companies. But it will not influence him to be impartial.
No one else.
Does anyone has a smartphone that uses Android system? Juror # 17 said yes. It is an HTC Droid Incredible. Had it since last September. "I am happy with the phone". Judge explained that you cannot reply on what she already knows about Android system. She said she can do it. Nothing against or in favor of Google.
Is anyone wanting to buy it, was the next question. One said he had one until 2 weeks ago, and he did not want to pay the money and so got rid of it. #16. Not a bad experience. Just the cost reason. He will be able to be impartial.
Raise your hand if anyone has specialized training in computer software or hardware development or design? # 17 and #14 raised their hands.
#14 works with databases and Oracle is in that field. She writes software using Linux, SQL. She will be able to be impartial at the trial.
# 17 worked in the film industry and worked in web worlds using different browsers. She will be able to be impartial at the trial.
Any specialized training in mobile computing technology including smartphones and tablets? --
Patents and copyrights? --
Any training, knowledge in Java or Android? --
No additional experience except what he stated.
Electrical engineering? --
There are geeky types of people and people who are not into technology. If you are on a geeky end, could you raise your hand? --
On the other hand? One said she does not care about technology and she has a basic phone, no texting. She has a computer.
Who has a plain cell phone without internet access? -- Same one plus two more jurors.
Anyone heard of open source software? --
#3 -- it means everyone has a right to it. Never had done it or known anyone. No strong opinion about it.
Another, #14: It is a code that is available openly to other individuals. She can put her knowledge aside and decide case based on the record.
Anyone applied for or ever acquired a patent? --
#3: patent is not pending. It was about laser beam and never got patented. The lab turned it down. The lab I worked for.
Ever worked for company that had connection with IP? --
#17: worked in a start-up in LA that had something to do with security purchasing. She can be impartial. #14:
every employment contract she had signed had an IP clause for all software she writes.
Judge explained what jury does and asked them to think about if they can do it. And how they will make their decisions.
If there is anything, he asked, that can influence you, so you are not impartial in this case? --
# 16 and 17 raised hands.
#16: he struggles with sleep issue and he is not sure if he can process a lot of information. He can do day-to-day things. But not a lot of intellectual information.
Will he fall asleep? No, but he might not be alert. And
#17: deputy attorney general and she works in administrative law. Education, teacher credential, licensing.
Next they were told that there would be famous names showing up, Larry Page and Larry Ellison. Does anyone have a strong opinion about them? -- No. Nobody.
Any opinion at all that you cannot put aside? --
Book or movie they'd read and liked during last months?
And if you think you will a good lawyer?
Oracle's lawyer questioned #9:
He said he'd heard about both people, Page and Ellison. What impression about Google? A little bit better than Oracle, he replied.
Any of you opposed to law of any kind? --
Last on 1st row raised her hand. Female. Could not hear her answer.
She said she has a blog. And
#5, she said she used to have a blog. She has not heard about the two companies in the news. She knows that the companies exist. That is it. She has a Gmail account.
Who uses Google docs? -- same girl, #8, said she uses Google docs.
Any strong opinions about Google or Oracle products? --
#14 -- she is found of Oracle databases. No, no knowledge of Java.
Any knowledge of Java programming language? --
#17 had heard about Java language, just heard about it. Living in the Bay area she'd heard about it. Never studied it or read manuals.
# 3 said had friends laid off from Oracle before. They both have jobs now but don't know where.
Both parties are in the news. What have you heard?
# 17 and lawyer nodded. Lawyer stated that he heard about another Google lawsuit.
#8 had heard about basic news about the case. No impression either way.
You have used Oracle’s database: anything with purchasing or maintaining? no. only negotiating with Oracle reps. Any relationships? No.
Judge asked both attorneys to come to the bench. Discussion, then #16
excused on hardship. Has a sick mother and he is a pastor. Some questions to
#16. She said she is interested in case and she thinks she can exclude knowledge be impartial.
If selected to serve she can listen carefully all evidence and decide the case in accordance with the law.
Judge asked other jurors to think about a book they recently read or a movie. Also, asked them to promise they will comply with his order not to review any news or discuss case with anyone. And asked if they thought they could be a good juror.
# 17: will follow the order.
a nurse. Said: I deal with kids and families. I care for everyone executing best care. Likes games.
Anyone else uses Oracle products at work or have any business relationship? --
Does anyone holds any copyrights? -- No involvement.
To # 4, what type of creative writing is your hobby? He wrote a book. And it is advertised on Amazon. Poetry. Has copyright on it. No other works.
Would the fact that Oracle holds copyright cause to lean you one way or another before hearing the facts? -- No.
Would anyone else on the panel lean toward a person who holds copyrights before hearing evidence? --
when you were in private practice what did you do? --
Insurance coverage for insuror, environmental law. Now does insurance between companies.
# 17: she heard something on the news about the case.
Yes, but does not follow it. It was more of a reference. But it was general and nothing specific.
Any bad experience with big companies and they are still upset? --
Anyone suffer significant economic loss? --
Last girl #18 said she has played
100 games, movie as well.
Good juror, she thought, because she is analytical.
All jurors promised to comply with the judge's order not to do research or talk to anyone about the case.
Lawyer said he saw the movie, The
Social Network. Said he's be a good
juror. Listening and analyzing, will be a bit distracted by lawyer’s performance because of his expertise.
Didn't hear her book. Would be a good
Will follow orders.
#7: no reading or movies. Good juror. Good listener, patient.
Will follow orders.
#6: doesn't watch movies. Watches Chinese channels on TV. He likes news and stories. Will be ok juror. Will follow instructions.
#5: will follow instructions. Movie Mirror, Mirror with Julia Roberts. Watched Dead Beauty too. Read: Road Less Traveled. Will be a good juror. Good listener and patient.
#4: Pirates of the Caribbean. Liked it. Likes the main actor. Good juror. He does a lot of cross functional staff, good listener. Can make decisions. Will follow order about research or talking.
# 3 will follow orders. Good juror, good listener, quick decision-maker but not too quickly. Didn't hear movie.
# 2: Mirror movie. Ok juror. Said is not patient but good listener. Will follow order.
# 1 will follow order. Good juror: hopes fully understand questions. English is limited. Does not read books. English is his 4th language. Vietnamese, Mandarin, Cantonese. English – speaks English for 20 years and he understands everything that happened today.
#10: will follow orders. Very good juror. Case is interesting. He would pay attention. Movie: Decedents.
# 2 on second row. Selfish Gin, book. Good juror. Can be impartial.
# 3 second row. Didn't hear the movie. Good juror. She does not know technology.
#4 will try to be good juror. Can keep an open mind until hears evidence.
Movie: Association, and Footnote. Follow orders.
#14: Could not understand her movie title. Good juror. She can prioritize.
#15: will be a good juror. Brings objectivity. Collects Jack London’s works. Sam and Fishing at the Amen, movies. Will follow court orders.
Judge: last chance to say anything for the jurors....
They can take notes.
Lawyers have a discussion where they each excuse 3 jurors:
Google: 5, 14, 16
Oracle: 3, 9, 15
Google lawyer objected that his opening statement would not be heard until tomorrow. Judge stated that he will have advantage tomorrow since jury might forget what the other party said today.
Judge gave preliminary instructions to the jury. --
You will decide based on the record of the court.
Plaintiff’s Opening Statement:
I speak for companies and thank you for your attention and dedication.
(Introduced: Ms. Katz, President and CFO, the GC, and an Attorney from Oracle's Legal department.)
Google used and built its business of somebody’s else's property without permission. Property is IP. IP fuels our country's economy and is an important element of our creativity. Permission is a license; it is like a lease with an apartment. This case is about Googles’s use and building its business using Sun’s and Oracle IP without a license. IP here is Java.
Why are we here? Did it happen by accident? August 10, a Google’s engineer sat down and emailed the head of Android, the software business at Google, saying that what we were asked to do by Larry and Sergei is to investigate what tech alternates exist for Java for Android. All of them suck and we need to negotiate a license for Java for Android. He concluded that Google needs a license for Java technology to use for Android. It was taken with awareness with what’s going on.
Java. What is it? This is a symbol for Java. Java is a programming language. Also, application programming application (API) and association class libraries.
By the time Google was looking for technologies for Android, Java was well adopted. It runs on numerous devices, included phones and computers. It is a very successful software and every company that uses it needs and has a license to use it.
There is a Java community process. When it was launched it was given to people to provide an opportunity to set up rules by which industry would be organized to use this technology. These are companies that are competitive but they came together around Java to explain how it works and move forward. This community relies on the components that Java relies on. They invested in Java.
Java was invented in the 1990s by Sun. In 1990 was first licensed. Sun created the technology, developed training and made a process for other companies to participate.
Oracle bought Sun in 2010. Oracle was founded by Larry Ellison. Java was a major reason why Oracle acquired Sun. Oracle was a major user of Java. Many of Oracle’s programs were written using Java. Oracle paid a lot of money to Sun to acquire Java.
In 2005, before the iPhone, Google was the dominant search engine on desktops. Google’s business is selling advertisements. Advertisements will show up on the screen and it was making a lot of money using the desktop search. Google decided to do search differently using smartphones. They bought Android Inc. so they would have an answer to a threat and opportunity. It is already 2005 when smartphones became very popular. They had to act quickly and jump in the market. One criteria is to attract developers. They asked for components of Java and met their requirements. The problem was copyrights and patents. Google had good business reasons to get into the business of mobile phones but it could not infringe on copyrights and patents. This is why they said, we must take license for Java from Sun.
Sun did not want to give a license on the terms Google wanted because it was inconsistent with what they wanted. They had a choice, go with Microsoft or employ Java anyway. Rubin writes to Schmidt saying that he is done with Sun and they would not be happy. But they would have alliances among other supporters. By 2010, Lindholm writes and says that they have no alternatives, to negotiate the license on the terms they need.
Lindholm, Page, Brin, 1 week before this suit was filed, realized they need to negotiate the license. They knew they do not have license and they knew they needed to negotiate it.
Java technology and why it is so successful. Java solves difficult problems for programmers. In the old days, when you developed software, you did it for particular computers, PC or Mac. Companies that developed software had to prepare different versions for different computers. It is like for different languages: English, Spanish, etc.
What if we write and prepare application only once? What if we do not need to worry about different versions and it can be done only once? To give the developers tools, Java can be placed on a machine and it would translate different programs to a common language.
We need to protect the ability to run this software anywhere. When Java prepares the program and it's written once, it can be run anywhere and translate. The challenge is you need to run consistently, computers need to be completely tuned.
The basic ideas of class libraries is simple. If there are programs writing functions why do not we have them write a code and put it in the library and have it prewritten and prevent developers from writing a new code.
APIs are blueprints. Class libraries are code. Blueprints tell you how to navigate the complicated structure. We now need to provide complicated class libraries on our machines. If all of that works and libraries are consistent, Java will flourish and we all have a common language.
It was an amazing success so quickly. 6M developers learned how to program in Java. Numerous software programs were developed with Java.
Google wanted to take advantage of this success.
How do you get everyone to follow the rules? It is a set of licenses and rules to keep Java compatible.
Using Java to read a book or write code with Java, no license required.
If you are a company, wanting to provide the code using the library, you need a license and agree to manage the library accordingly.
When you download Java, you click on the license.
What Google took was the software without permission or license. Google needed a set of software like Android and embed Google into mobile phone industry.
In Dec. 2005, Google said that if they did not get into mobile industry they are in trouble.
Android is building Java OS and we are making Java central to our solutions and we need its tools. We will make Java central to our solution because we need to have developers to write apps.
There are 37 API packages from Java used in Android.
This is from an email from Rubin to Page saying that we will take a license and pay Sun for the license. So they knew that they need a license.
Schmidt asks a good question: how are we doing with Droid development? If we do not get a license, we can not move on. Google took no license.
Google unwilling to share control with Sun, decided to release Android without license. Rubin knew that Sun would not be happy about it but they will do it.
Open source: Rubin wanted to negotiate OS license with Sun. Sun released Java under OS agreement called GPL (General Public License). They made their property available to the world, Google asks. Because Google did not agree to the terms of the license, GPL. It is when you take the code and write a new code under GPL you give it back to the community. But Google did not want to give back and did not give it back to the community.
Was Google right using Java in Android? You will see what Google did to Sun. What Google does is, it does not demonstrate Android to Sun.
Google profited immediately. Android is not a charity. Google made a lot of money from Android.
Video conference with Rubin: we do not make money from Android. We give it away for free.
Android is hugely profitable for Google. And Google stated they make money from Android as they do from any of their Google products.
What IP is at issue with copyright? --
When you create something, you file a notice with the Copyright Office to strengthen your right. Then you register and get a certificate. It creates a clear process. Sun and Oracle did exactly that with Java. Copyright rights are in the Constitution.
Google copied Java APIs and even copied actual lines of codes. These designs are complicated.
We will be showing you the copying in details during the course of the trial. It will be technical but we will have our experts who will show what it means and how. We will have pages with Google code to show you. Google needed the license and they knew it. And Rubin tells in his email that they needed a license from Sun.
Mentioned that it is important that Java remain consistent and compatible. Google did not follow the Java community and when Java brought so much to the world and Google did not follow the rules that is extremely important for Java.
Sun and Oracle will have a big battle with Google and Android. We will prove to you that from beginning to end, Google knew that if using somebody’s else property, they needed a license and they did not have it.
Sun and Oracle made many attempts to bring Google to the Java community but they were unsuccessful. When you hear explanations from Google on this issue, please keep in mind their own internal communications I presented to you earlier.
Judge reminded the jurors that nothing lawyers said is evidence. Defendant’s opening statement will be tomorrow. No research, no news, no talking with anyone. Everything you will learn in the court hearing.
1:25 PM: adjourn.
Right off, Jacobs pointed to his side's smoking gun: the so-called Lindholm email. The email, written by Google engineer Tim Lindholm to Google's head of Android, Andy Rubin, talks about the need to negotiate a license for Java. The alternatives to Java, he wrote, "all suck." Well, scrubbing the name Java wouldn't be an indication of guilt, to my way of thinking. Since Sun had said anyone could use Apache's Project Harmony, which Google did, so long as they didn't call it "Java", scrubbing the name would be an indication of trying to comply. I have no doubt Google will explain that more than adequately. Perhaps you'd like to see what Google's lead attorney, Robert Van Nest, looks like. Here you go, along with his bio and a list of honors.
Google fought hard to keep that email from the jury.
Jacobs told the jury Google tried to cover up its IP theft. Google employees, he said, were told to "scrub the j-word," meaning Java, from Android. And he said Google told workers not to demonstrate Android to programmers at trade shows who worked for Sun Microsystems, the company that created Java and was acquired by Oracle in 2010.
"You will see a lot of indications of conscious guilt," Jacobs said.
While Jacobs was front and center on Monday, a bigger name in litigation is expected to make a cameo: David Boies. The Boies, Schiller & Flexner partner known for his cross examinations represents Oracle in a variety of matters. He sat at counsel's table during jury selection but slipped out before opening statements, while other Boies, Schiller and MoFo lawyers backed up Jacobs. Van Nest's team from Keker is working with King & Spalding.
BusinessWeek has coverage now too:
Google’s top executives knew they needed a license for Java, a so-called “open source” language that works across different computer systems, Jacobs said. I think, if you ask other members of the Java programming community, like the Apache guys, they'd say it's Oracle who is breaking the rules by refusing to follow through on earlier promises.
“My proposal is that we take a license,” Google senior vice president Andy Rubin said in an October 2005 e-mail to Page shown to the jury. Rubin said Google would have to pay for the license.
Google engineer Tim Lindholm said in a February 2006 e-mail shown today that Google was in negotiations for a Java license. Yet Google didn’t agree to the terms of a type of license that allows companies to use Java code and write new code on top of it that “you have to give back to the open source community,” Jacobs said.
“You can’t keep it for yourself,” he said. “They broke the basic rules of the Java programming community.”
Update 7: And here's mirror_slap's report:
Oracle v. Google Wait. What license is required even if using the GPL code? You can't put an additional license on top of the GPL. And that's not what
I heard Google didn't use the GPL'd code. The problem was that Java for mobile, although open source code, included none of the innovation over the past few years (like JavaFX). Plus JavaME, unlike JavaSE, has no Classpath exception, so it was viewed as ambiguous. At that link, you'll find this snip from an article explaining Dalvik for us at Groklaw by an Android developer:
2012-04-16 Day 1
Jury slection, Opening remarks, Oracle
Judge Alsup (JA) Presiding
Lead counsel for Oracle (O) is Michael A. Jacobs
Lead for Google (G) is Robert Van Nest
My asides are in brackets: 
Courtroom 8 is on the 19th Floor of the new Federal Building in downtown San Francisco, two blocks away from the iconic City Hall.
There are 12 benches for the audience, in two columns of 6 on either side of the aisle. Each batch can seat 10 people. The right half
of the benches is reserved for prospective jurors. The left half is occupied by the press (first 5 rows) and the public (last row). All these
rows are filled. Once the jury is selected, the right half of the courtroom will open up.
I arrived a little before 7AM, went through security, and was the 4th member of the public to be seated.
Right on time, at 7:30 AM, Judge Alsop started the proceedings.
Google is seated on the left, Oracle on the right. The jury box is on the right side of the courtroom.
Judge Alsup asks Oracle to clear away any staff from the first audience bench on the right near prospective jurors, saying that he does not want any jurors to overhear anything from Oracle's representatives.
Deny motion to eliminate.
Explaining: he doesn't mind the expedited schedule, but that the parties need to understand that motions entered under seal take 36 hours to get to chambers. Judge Alsup uses the example of letters from Larry Ellison that were entered under seal. [This appears to be a dig at Oracle for last-minute filings.]
Filings under seal will are discouraged as a matter of procedure.
JA: "This is a public trial. Unless it's the recipe for CocaCola, it's going to be seen by the public", and cites a specific case under the 9th Circuit. [Sorry, didn't get the reference. I am in the back row.]
JA asks for glossary of the top-40 terms that will be used by the jury.
O produces the list
JA: Was this list agreed to by both parties?
O: Yes, your Honor.
JA: Thank you for doing that.
JA: It's a question of whether the 37 API's can be copyrighted. It's not just a legal question; it's based on facts that must be proven.
Summary of pre-trial motions:
JA denied 2 and granted one for G.
JA: O submitted 5, and has not yet ruled on them.
Setting some ground rules regarding the party's referencing judicial rulings in this case.
Judicial admission is conclusive, vs. items of proof, which must be established.
"I do not want, as a point of appeal, that the judge goofed that up".
"I want you [counsel] to tell me whether or not items are conclusive as a matter of proof. I need that by 5PM today. Is that enough time?"
G: need to confer about that".
JA: I need a clear-cut way to determine the meaning of the word "specification". It is used by lawyers in multiple ways. I urge you to be clear about what you mean.
O: Most urgent is item regarding opening slides for G, that the jury will hear that the names (of the API's) are not copyrightable.
JA: This is easy- we are not going to show the jury my rulings, or quote from my order (as a matter of law). In due course, I will tell the jury that.
O: statement from Jonathan Schwartz - we renew objection as to any reliance on that statement.
JA: denied. G can relate Schwatrz's statement.
G: regarding "deeming issues"
JA: you cannot quote me.
G: has 4 objections to O's opening slides.
1) payment amount that O paid for Sun of $7.4B. It's prejudicial.
O: G opened the door on this. Java was the most significant software purchase that O has made.
JA: Why isn't Google ecstatic to be able to cross-examine Larry Ellison on this issue?
JA to O: If you try to throw around big numbers in front of the jury just to inflate damages, you are doing so at your own risk; "there is no proof that Java is worth $7.4B. I am suspicious of your motives."
2) slide 34, "Java license necessary" [prejudicial?]
JA: Allowed, but this is borderline, and he issues a warning to O: "If you go out on a limb, that is a problem of your own making".
3) The other Java lawsuits mentioned on slide [missed slide #] are not in evidence
JA [to O:] how are you going to get this into evidence?
O: emails, emails to Messrs Lindholm and Lee (?)
JA: This suit didn't come along until a year later.
O: Email thread from G: shows that they were interested in buying Java.
JA: This is before O bought Sun? I am not able to rule on it now… but it is potentially too prejudicial. I will allow it once it is in evidence.
4) Slide 8, on the copyright issue, O is trying to insinuate that "everybody in the industry bought licenses, so G must be a bad actor".
O: It's critical that all versions of Java be compatible. G is at odds with the industry. O wants to protect the Java ecosystem.
JA: will allow the point, but O: this is about Android, not Java vs. Android.
G: The whole point of this slide is to introduce "Java v. Android"
JA: for opening statement purposes, this is not all that prejudicial. It will be allowed [but see JA's admonition to the jury later today that they should not take what the lawyers say as evidence, that evidence can only come from the witness box]
Back to the email…
JA: not allowed. Was it even presented by a deposition witness?
G: Jurors have been ordered not to read newspapers, but on Thursday (April 12), Boise Schiller issued a press release that essentially broadcast their opening arguments.
JA: Both sides need to refrain from press releases during this trial.
O: May we see this press release? [Hahahahaha.]
Jury selection Discussion
3 peremptory dismissals each, discussion of how overlaps will be managed.
8:05AM -- there are 44 potential jurors, pre-screened for availability.
[for brevity (I have 17 pages of hand-written notes), I will not cover much of the jury selection process here. Essentially, if a juror raised their hand to acknowledge any potential problem of any sort, that juror was eliminated. I will relate any instructions or questions that seem to be of import.]
8:19AM jurors are sworn in.
JA: To get the case O. v. G. started, the case will take a number of weeks, 8 to possibly 10 weeks. A brief description of the case is: "A few years ago, G. came out with a mobile platform named Android. O. accuses G. of violating certain copyrights and patents. G. denies violating.
The case will be held in 3 parts:
3) damages and willfulness, assuming that any liability is found in 1) and 2)
No web news site visits, no blogging, no news, no newspapers. If violated, an evidentiary hearing will be held. Jurors have to base their decision on evidence presented at trial and nothing else. So: no internet research, no web searching on this case. Jurors cannot talk about the case with anybody, including family and friends.
JA: "No talking about the case, no Googling the case, although I probably shouldn't use that term here."
JA: "Do any of you have a cell phone/smart phone that uses Android?
One juror says that she bought an Android phone back in September when she became unhappy with her iPhone.
JA: Fortunately, Apple is not a party to this suit.
JA: If any juror goes out and buys an Android phone during the course of this trial, we will have to have an evidentiary hearing.
JA: Have any of you heard the phrase "Open Source Software"? 4 of the 18 had and were asked about what they knew about it. [All were later dismissed.]
Jury selection completed:
11:50AM jury sworn in, 7 women, 5 men.
11:53 10 minute break.
12:03PM, re-convene without jury present
G: Given that O will likely conclude their opening statements but G will not, request admonishment of the jury to keep an open mind.
JA: "Yes, but tomorrow you will have the advantage that they will have forgotten what they heard today." [chuckle]
JA to O: Given the likely crowd that having Larry Ellison here will bring, the court security staff will need to know when he will appear.
O: he will be the first live witness, but we will probably not start with a live witness first.
Jury comes in.
JA: Today is the first day of a long journey together. This is all new to you. Be very mindful of what the facts are and what is in contention.
1) Not one word that a lawyer says in this courtroom is evidence. Evidence comes from the witness box with certain exceptions (stipulations). This is the single most important place where juries go wrong. We have excellent lawyers here. You are actually quite fortunate to be jurors in a case where the attorneys are of this high caliber. But juries can only consider things in evidence.
2) burden of proof.
3) The jury does not get a transcript of the trial. The transcript is for appeals. So if something seems important to you, write it down on the notepads provided.
Phase I Copyright Opening Statement
Michael Jacobs of Morrison & Foerster for Oracle America (formerly Sun):
Thank you for your service. This trial will be deciding a big question, and the importance is evidenced by the people from Oracle America who are at the plaintiff's table: The President/CFO for Oracle America and the General Counsel for Oracle.
Using someone else's property without permission. Property in this case is a special class of property called Intellectual property, which fuels our dynamic regional economy. Permission to use someone else's IP is granted in the form of a license. The IP in question relates to Java. G used Java-related IP in its Android business. [yes. "Java-related"]
Why are we here?
2010 -- software engineer Tim Lindholm wrote an email to the head of Android engineering, "What we have been asked to do by Andre and Sergei regarding alternatives to Java for Android", but that in fact, any solution other than Java sucks [from the email]. Lindholm concluded that G needed a license, as driven by the highest level of G.
What is Java, the Java Software Platform (JSP)? Java is 3 components:
a) Java programming language
By the time that G was looking at the the technology for Android, Java was huge - lots of adoption and lots of Java developers. Java is widely deployed on "feature phones".
b) a set of API's and associated class libraries
c) The Java Virtual Machine (JVM).
[shows slide of multiple large tech companies who O says have licensed the Java technology]
Describes the Java Community Process, or JCP. Points out that many of the participants are arch-rivals, but that they are all committed to make Java work. These companies have huge investments in developers and software written in Java.
History: Java came from Sun in the mid-90's. Sun had a vision of the JCP, which allowed Java to be hugely successful.
Oracle purchased the key IP for Java when it bought Sun in 2010, and that Java "was a major reason for O to buy Sun".
"Oracle had a huge stake for not allowing Java to fall into the wrong hands" [but still, it did…]
Where does G enter into the picture?
G feared losing revenue as people migrated from desktops and laptops to smartphones. G bought Android, Inc. (Andy Rubin) in 2005. Citing RIM and Microsoft research regarding Java and time to market. The key for G was to get to market quickly… they needed a lot of engineers developing apps. G decided that Android would use components of Java. This does not allow them to infringe, but in 2005, the strategists at G said, "we must take a license with Sun", referencing Tim Lindholm's emails. But what if Sun had its own agenda that did not align with G's?
In 2007, G saw that what they needed from Sun and what Sun was willing to license did not align.
Citation of Eric Schmidt about Sun not being happy "when we release our stuff" [presumably Android]
G knowingly used the IP without licensing it.
Why was Java so successful? It solved a big problem -- running on multiple platforms -- before Java, companies had to create specific versions of software to run on each different flavor of computer.
"Write Once, Run Anywhere", the "mission statement for Java". This is a huge requirement, having to maintain consistency across the whole environment. This was a huge challenge.
How to get everyone to use/learn Java? a huge investment in tools: API's and class libraries. Pre-written code components, written to the API (the spec). To use an analogy, the Class libraries are the house, and the API's are the blueprint. You have to provide both the JVM's, and the class libs along with the blueprint (the API's). "This was an amazing success", that it got so widely adopted so quickly, over 6M developers in 10 years. G wanted to take advantage of this.
How do you get people to follow the rules to keep this working/compatible? Via licenses. Ref: GPL/Open Source. Differentiated from commercial licenses.
When do your need to get a license?
Not when you are writing apps.
But if you want to provide your own JVM and class libs, you need to take a license. Example of click-through licensing.
G took the API design without permission, without a license.
Explanation of discovery process, and how it is that O had G's internal emails relating to this case.
G told its investors in 2005 that if they didn't enter into the mobile market, Go would be in trouble"
G (ref Andy Rubin, AR) said "We are making Java central to Android" in 2008
The API's in Java allowed Android developers to rapidly produce fast, high-quality apps.
AR to Larry Page in 2005: "we (G) need to take a license"
G knew "license was critical" ref Lindholm.
G hired key Java business, licensing and tech employees from Sun.
G knew, no Sun deal, no Java (May 14, 2006 email)
Sun was concerned about maintaining its revenue stream and java compatibility
GPL- O attacks issue of release by Sun of Java under the GPL.
G didn't agree to the terms of the GPL; they didn't give back. "GPL is viral".
G knew that even Open Source Java required a license agreement.
"Sun had good business reason for making this choice" to open source.
G copied from Apache Harmony, knowing that it was not licensed. G knew that Sun restricted Apache Harmony from being put on cell phones.
Was G forthright in its use of Android? G told its Android developers not to show Android phones to Sun employees at trade shows, and "scrubbed" the word "java" from Android.
Android is very profitable for G based on its revenue stream from advertising through its search engine.
Java materials are copyrighted:
1) creation of property
Sun did all of this with Java. Copyright is in the US Constitution, Art 1, Section 8, Clause 8.
2) addition of copyright notice
3) registered of copyrights with the Library of Congress
"Designing API's Requires Creativity and Skills" slide
O: why *wouldn't* we want to copyright protect *this* kind of writing, *this* kind of creativity"?
Essentially undisputed is that the 37 API's were copied, and some code was copied, too. If that copied code was printed, it would be about 11K pages in length.
G saw the copyright notices. G says that the API's are not copyrightable.
"The Java Programming language is different from the JAva API's" slide
Comparison of a book describing the Java language, versus the volume of shelf-feet it would take to print out the API's.
Here's the worst of it: Java requires continuing compatibility, plus a cleanroom implementation.
G knew that it needed to retain some compatibility, but that Android would fragment Java. So we have a splintering, an introduction of a separate dialect. And it was not a cleanroom implementation. G engineers got to look at the Java source.
Prior to the acquisition, Sun warned O about the Android battle. From 2005-2010, G knew that they were infringing. Sun and then O tried to "bring G back into the fold".
======end of opening statement======
JA to jurors: "Keep an open mind. None of the emails you were shown have been entered into evidence."
Witness disclosure deadline discussion
I mentioned earlier that there are many things that are called “Java”. Besides the syntax of the source code, some people refer to certain class libraries as being “Java”. Sun developed three major flavors of these class libraries, one for conventional desktop environments (Java SE), one for a limited mobile environment (Java ME), and one for server‐based Web applications (Java EE).
Android has class libraries. Some of those class libraries were written by the core Android team, made up of Google employees and contributors from other firms. The rest of the class libraries come from other open source projects. Notable among these is Apache Harmony, a project aiming to create a complete replacement implementation of all pieces of Java.
Specifically, Harmony offers a class library that is generally compatible with classes that come from Java itself — they have the same names for classes, for example. Android has included some — but not all — of the Harmony classes in the Android OS. Hence, Android developers can write code that use “Java” classes, despite the fact that those classes did not come from Sun and whose copyrights are not held by Oracle.
And here's an interesting look at the mood at Sun the day before it announced it was releasing Java under the GPL, Mark Reinhold's blog from November 12, 2006, he being at the time Chief Engineer for the Java Platform, Standard Edition, at Sun Microsystems:
Sun is open-sourcing its entire Java stack—ME, SE, and EE—under the GNU General Public License, version 2. Here's the follow-up in 2007, same blog:
The license choice—which has taken many by surprise (gotcha!)—is a giant leap. For more on the big picture, including a link to tomorrow’s webcast announcement, please see http://sun.com/opensource/java.
For the JDK we’ve taken two small steps with this announcement:
We’ve released two key components of the JDK into open source: The Java programming-language compiler (javac) and the HotSpot virtual machine. The rest of the JDK, modulo encumbrances, will follow in the ﬁrst half of 2007.
- We’ve created the OpenJDK project on java.net to host the code for these components and the foundation for the community around them. This project is part of the new OpenJDK Community.
I just left the keynote hall at JavaOne 2007, where Rich Green announced the full launch of the OpenJDK Community.
Three quick highlights:
As promised last November, the fully-buildable code is now available.
- We have an Interim Governance Board charged with writing an open, meritocratic Constitution for the Community.
- We’re on new infrastructure (openjdk.java.net) that’s much more responsive and ﬂexible.
The OpenJDK code available today isn’t entirely free because Sun doesn’t have the rights required to relicense some third-party code that’s been in the source tree for many years. We hope to work with others in the Community to replace these encumbered modules with free alternatives in the near future.
Update 9: Oracle has now posted the slides [PDF] used in the opening statement on its website.
Update 10: All the trial exhibits are now available as PDFs here. Some are also done as text. Look for the date nearest the day, as they are listed by the date they were entered, which could be a day or so after the date of their use in the courtroom.