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Week 2, Day 7 at the Oracle v. Google Trial ~ pj - Rubin, Schmidt, Updated 7Xs
Tuesday, April 24 2012 @ 11:53 AM EDT

We have our first report from the courthouse, on day 7 of the Oracle v. Google trial. Today's witnesses are Andy Rubin and Eric Schmidt. Mirror_slap is back, and here's his first quick word, with plenty more to come:
Google chose not to cross-examine Andy Rubin, saying that they'd reserve their questions for when they begin presenting their case later today.

Eric Schmidt will be called next by Oracle. It sounds like he is the last Oracle witness.

So Google's up at bat next. As Robert Van Nest, Google's lead attorney, yesterday told the judge, they hadn't had a chance yet to tell their side. Today it begins. And mirror_slap brought a laptop today, his wife's, so he hopes he'll be a lot faster sending us the news, instead of taking paper and pen notes and transcribing them when he gets home. So stop back by when you see the title says Updated. It should be a super-interesting day.

Also, while sparse, in that it's Twitter, there's a stream of tweets just about the trial with several reporters tweeting that feldegast has put together for us. Mr. Schmidt has taken the stand, and David Boies will be the lawyer for Oracle asking Schmidt questions.

Jump To Comments

[Update 1, Update 2, Update 3,
Update 4, Update 5, Update 6
Update 7]

There are some legal things the reporters are missing, but that's only natural. It's not their field. But at least you'll see a blow by blow. Here's an example. A couple of tweets seems to imply that Rubin was dodging truth by refusing to acknowledge an email. But Rubin noticed that the indentation was off in the Oracle exhibit. That could be an indication of doctoring the exhibit. Or not. But if you don't know, you can't authenticate it. You really, legally can't, because the issue is whether or not it's what was really sent. If it's doctored, it's not what was sent. This is, after all, an Oracle-prepared exhibit, so do you wish to assume, after the doctored video in the Microsoft antitrust trial years ago?

Rather than tell you, I'll show you, so you can be da judge. Caleb Garling tweeted:

Oracle's Boies visibly aggravated with Rubin right now. Rubin maintaining he can't be sure who wrote an email because the indents are off
And James Nicolai tweeted:
That was rare, Boise lost his temper. Rubin refuses to admit an email with three names in the header written by one of those three people
See what I mean? The reporters are assuming, I think, that if there are three names in the header of an email, it proves one of the three must have written the email. But in the law, you have to prove that a document was written by one of the three. You can't just guess. Because, as I explained, someone could have cooked the email to make it look like it was written by one of the three, or even not on purpose misprinted it in such a way that some essential bit was lost, or the paralegal making copies got the pages shuffled wrong. Things do happen. So the law requires a much higher standard of proof than just that you have a paper copy of an alleged email that allegedlly three people either wrote or received. All those steps have to be proven, and if the indents are off, there is strong reason to doubt.

In other words, even if the email is real, Oracle didn't prove it so. Keep in mind. Rubin is a techie, not a reporter, so he knows very well all the tech tricks that could result in a document that looks real but isn't. And remember when Larry Page noticed that there was something off in the pagination of an exhibit he was shown? I'm just saying, this doesn't happen in trials every day, that the exhibits have flaws. Or maybe non-geeks don't notice when they do.

Dan Farber has a report up already, titled Google's Andy Rubin dodges David Boies' bullets. Larry Page was able to do that too. The bullets were the emails that I analyzed and reported on in this article a couple of days ago. I don't think they show what Boies tried to make them show, but you can look through them for yourself and make your own determination. Here they are, collected in a PDF.

Update: Dan Levine is tweeting something I didn't know:

Schmidt says Sun wanted roughly $30-50 mln for mobile partnership with Google, and Google would have paid. Dispute was abt control
He also reports his impression that Schmidt is much more relaxed than Larry Page. And now it's cross examination time, with Robert Van Nest, Google's attorney, getting into evidence Google's side of the emails about licensing from Sun.

Update 2: The Verge's Nilay Patel is providing coverage too specifically of Eric Schmidt's testimony, based on Bryan Bishop's providing details from the courtroom:

11:59 am: Judge Alsup telling Van Nest that this whole discussion is coming out of Google's time. Van Nest: "Whoa whoa whoa, if you'd told me that I would've objected!" Big laughs all around — the jury clearly loves Van Nest.

11:55 am: Eric Schmidt, the former CEO of Google, is now explaining to the jury a JavaScript function that finds the bigger of two numbers as a way of describing APIs. Just think about that for a minute.

11:50 am: Van Nest now showing off an email in which Vic Gundotra suggested the full rights to Java would cost $100m. Google considered paying but didn’t think Sun would go for it.

11:50 am: Did anyone say your code was copied before this lawsuit? "No." And that's been avail since 2008? "Yes, I'd say about 3-4 years." Cute, but honestly — who else would say Android was copied?

Well, that's not the right question. The question is, why didn't Sun object? It's clear, from Schmidt's answer, that they never did.

Why does that matter? Because this appears to be a U-turn by Oracle, to close up what Sun left open. They are suing people who are saying they relied on Sun's position and had no reason to think anyone would ever object.

Oracle seems, to me, to be trying to develop a kind of proprietary alternative to Linux/FOSS. If you license Java, you get extensible software. What else would you need? Freedom? That's not an Oracle meme, from all I've seen. So I now have come to suspect that this is about forcing FOSS into a very sad and limited corner, where it actually can't compete any more, because FOSS developers don't have the big bucks, other than Google, to pay for licenses and patents. Even if it's not a plan, or a plot, it's what this case will result in, if Oracle prevails.

We've talked a lot here on Groklaw about what an API is, and eventually I hope to have the time to collect all your input, but here's what the Verge says Schmidt said about it, and they very appropriately highlight it:

11:44 am: Schmidt answering the question, drawing the distinction between the API name and code used to do the work. "The difference between calling "print" and the code that actually does it."...

10:47 am: That was a bravura performance by Robert Van Nest and Eric Schmidt. We'll see how Oracle deals with it on re-cross after a short break.

10:45 am: And we're back for just a few more questions, says Van Nest. Are APIs blueprints? Schmidt: "No, APIs are the way you make something happen... the way you do that is completely up to the other side of the interface." How long have you thought that? "For as long as I've been a computer scientist, so 40 years." And with that, Google rests....

9:31 am: Schmidt saying he was "the executive in charge" of Java at Sun, and "the language itself is not useful unless you can make something happen," which is what the APIs do. Google's clearly trying to establish that Schmidt designed Java at Sun to be open-source and include the APIs.

He means rest, I assume, in the sense that Google's examination of Schmidt was done. But there is lots more to come from Google.

Update 3: They are now done for the day, the Verge is reporting, and what a great job of reporting Bryan Bishop has been doing for them. From their Andy Rubin report, including the section when Rubin was called back to the stand after Eric Schmidt was done:

12:33 pm: Rubin wanted to have a conversation with Sun and convince them to open source elements of Java as they had done with other partners. Looking at an email between Rubin and a Sun sales person responsible for Java in which Rubin wrote, ""Looks like there are no roadblocks to us taking a license and then open sourcing our implementation... Right now we are moving ahead with the project, and doing an independent implementation."
In other words, since there were no fabulously wonderful alternatives to Java, they'd do their own.

Dan Levine has just tweeted this:

Google atty: if APIs are copyrightable would be a "substantial departure" for the computer industry.
I'm glad to hear Google put that out there. I hope it was in front of the jury, so the judge and jury both understand that Oracle is asking for a huge change in the law, and we'll find out when mirror_slap files his report for the day. [Update: It was not. It was said at the end of the day, after the jury was dismissed.]

Update 4: Here's mirror_slap's report on the discussions between the judge and the lawyers before the jury entered for the day, followed by the testimony of Andy Rubin:

Oracle v. Google, Day 7, 2012-04-24

Before the Jury Comes In

Google: Supplementary response, ref interrogatory #4, specifically reference Jonathan Schwartz' blog. It was specifically referenced there. And by reference in #10(?) We go on one interrogatory, registered patent disclosures, May 26 2006

Google: Oracle was aware of Android in advance of Sun purchase, Open Handset Alliance. Oracles statements and Google's claim is that Oracle's knowledge and statements speak to waiver, estoppel, and laches.

Judge Alsup: It does seem to me that this interrogatory called out the blog.

Oracle: Never identified any witness who had done so. Never said *who* at Google relied upon Oracle's statements.

Oracle: At this point, bringing up witnesses who say that they relied on it, regardless of the fact that this has not come up into discovery.

Judge Alsup: Possibly an pattern of acquiescence regarding what Google has been doing. Sun was an enthusiastic supporter of Google.

Judge Alsup: Google should be given an opportunity to prove that.

Judge Alsup: No [Google] witnesses have said that they relied on it.

Judge Alsup: The pattern should come into evidence.

Two, if Sun themselves thought that Android was "going to strap rockets to" Java in a spaceship going into outer space, then it seems to me that Google has a counterclaim against unjust enrichment. [ laughter ]

Judge Alsup: Fair game. Objection overruled.

Oracle: Mr. Schmidt and Mr. Rubin today.

Google: Van Nest- one category of documents… the "large number" documents, #431, for ex. financial docs, October 2010, please do not show this in the courtroom. Getting the same large #'s with a B in front of jurors. No problem with witnesses being examined regarding how Google was going to make money off Android. Object to Oracle using these numbers. May be relevant to phase three.

Oracle: Boies .- ref ext 431, not throwing around billion numbers. The more revenue obtained by an infringer in a copyright case, the more indicative of unjust profit from the infringing. The law with respect to "fair use".

Judge Alsup: That is a good point.

Google: The amount is not speaking to fair use. These are general statements of all of Google. Includes not only Android, but other business units such as Chrome, search, display, etc. Also, these are projections. The amounts are irrelevant.

Judge Alsup: I am not so sure that you are right about that. With reference to your protesting your case, it has been put forward as a charitable case. Boies can say that it is greed, greed, greed.

Judge Alsup: Read me the entire statute.

Judge Alsup: You left out the part about "commercial".

Google's Van Nest: The whole point was to get Android out there, for Google's products to work better. What I am objecting to is throwing large (prejudicial) numbers out there. 403 objection.

Judge Alsup: Overruled, unless Boies goes overboard. Unlike the situation where I excluded Mr. Norton saying how much Oracle paid for Sun. These are Google's own internal docs showing how much Google expected to make off this (A). Intended for commercial purposes, therefore [ possibly not fair use ]. You [Oracle] can use two of them.

Judge Alsup: Never got a ruling of 207 from yesterday.

Judge Alsup: Mr. Rubin is on the stand?

[ Yes ]

[ Jury is seated. ]

Judge Alsup: Re your question on why lawyers have to ask to approach… old tradition of lawyers leaning over the witness stand, putting their arm around the witness, and shouting in their ear. The witness would say anything to get rid of the lawyer.

Judge Alsup: Mr. Rubin, you are still under oath.

Andy Rubin Testimony Resumes

Oracle: [Boies] - Identify documents that you may recognize.

Oracle: TX207, is this a document sent to you May 11, 2007?

Andy Rubin: Yes it was. May 11.

TX 248- an email from Eric Schmidt, May 18, 2006?

Oracle: Andy Rubin: yes, it is.

Oracle: TX215, June 1, 2007, subject Aj class libs.

Andy Rubin: Yes.

Oracle: TX216, was this an email to you, from Mr. Schmidt on January 15, 2007?

Andy Rubin: Yes.

Oracle: TX 217, email to you from Dave Burke, Nov 2?, 2007?

Andy Rubin: Yes.

Oracle: TX 221, email from you August, 2007?

Andy Rubin: Email thread, my response to it.

Oracle: TX 223 email from Larry Page July 16, 2007.

Andy Rubin: Email to me.

Oracle: TX 230, email from you August 11, 2007?

Andy Rubin: [Missed answer.]

Judge Alsup: Have these all been objected to, Mr. Van Nest?

Google: No objection to emails to/from Larry Page.

Oracle: 273,382, 389 431,433, 438, 618, 619,1002, 1044, 1050, 1051, 1060, 2233

Judge Alsup: All exhibits into evidence.

Oracle: TX1061 - Not something that you prepared, but you participated ?

Andy Rubin: Draft presentation; not clear that I participated.

Google: Objection, 403.

Judge Alsup: Overruled.

Oracle: We were talking about cleanroom implementation.

Oracle: This is a July 26, 2005 press release: "develop a cleanroom implementation of a JVM"

Andy Rubin: Yes.

Oracle: OTX 12- an email you had written?

Andy Rubin: Yes.

Oracle: Says that a cleanroom implementation would be tough given composition of the team?

Andy Rubin: Yes.

Oracle: TX 147- is that in evidence? [yes]- a document that includes an email that you wrote, and a response to that .

Andy Rubin: Partial email.

Oracle: An email that Andy Rubin wrote. Do you see that?

Andy Rubin: Yes, I do.

Oracle: Cleanroom implementation would be hard, especially with a large number of former employees form Sun.

Andy Rubin: Yes.

Oracle: They would have too much knowledge?

Andy Rubin: They had too much specific knowledge of Java, yes.

Oracle: You said that [ we are walking away from negotiations with Sun"?

Andy Rubin: Yes.

Oracle: You wrote that in July 2006?

Andy Rubin: Yes.

Oracle: Regarding fragmentation.

Andy Rubin: [Asks for definition.]

Oracle: You say in email to Larry Page that "we need to take a license… run the TCK… to avoid fragmentation.

Andy Rubin: Yes.

Oracle: Sun wanted to avoid fragmentation?

Andy Rubin: I am unclear on what exactly Sun wanted.

Oracle: "Although this has the makings of another stare down"… If we don't show strong efforts towards avoiding fragmentation, we are also going to have to make …"

Andy Rubin: I don't think that I wrote this email.

Oracle: Do you agree with it?

Andy Rubin: I am not sure.

Oracle: Tim Lindholm wrote it?

Andy Rubin: Yes.

Oracle: TX9- email fm TL to AR- OCt 2005. "Alan [ Brenner] presumably wants this both for tactical reasons and strategic ones." Did you ever ask what fragmentation means?

Andy Rubin: I have my own definition of what fragmentation meant.

Oracle: But you knew what it meant, didn't you, sir?

Andy Rubin: I am not clear what their definition was, specifically.

Judge Alsup: Back then, did you have any reason to believe that they understood the term differently?

Andy Rubin: There was some caution on my side for using the term "fragmentation". Sun's term might differ. Mine is fragmentation is about compatibility. Incompatible implementations of Java.

Oracle: TX21- Email fm Andy Rubin to Dan Borenstein, April 13, 2006, in reply to Dan Borenstein email.

Oracle: "Java has very little fragmentation" -- see that?

Andy Rubin: Can we go back to broad email so I can see the whole thread?

[Exhibit is provided to Rubin ]

Andy Rubin: I am unclear whether Borenstein said that or the other person cc:ed replied. Indentation differences.

From this email, it is clear that Dan Borenstein is replying to another email.

Oracle: You are testifying that you don't know whether Mr. Borenstein wrote this, or whether someone else did it?

Andy Rubin: Yes. It could have been from a forwarded email. Not all the headers of the responses are here.

Oracle: Nobody else listed here.

Andy Rubin: Signifies to me that there is a missing header.

Oracle: I don't want to spend too much more time on this. 3 responses, 3 people included.

Andy Rubin: I'm not sure -- not seeing cc: of the Android team… that's four parties.

Andy Rubin: Email was addressed to somebody, and the party is not in the header.

Oracle: *Somebody* at Google wrote, "There is very little fragmentation in Java"? Andy Rubin: Yes.

Oracle: You didn't ask what fragmentation was?

Andy Rubin: No.

Oracle: TX180- email thread… Nov 14, 2007… middle of page. Eric Schmidt wrote to you.

Andy Rubin: Apparently responding to me, yes.

Oracle: Email discusses certain statements that Sun was making, correct?

Andy Rubin: Email re PR team regarding launch messaging.

Oracle: Page 2. See email ant from Stephen Shankland [ reporter] to Eric Schmidt, re a statement of Mr. Green, Sun VP, re the announcement of Android.

Andy Rubin: Yes.

Oracle: People at Sun made comments.

Andy Rubin: Yes, I suppose.

Oracle: Do you remember comments from Mr. Green?

Andy Rubin: Not until I saw this.

Oracle: Quote: "very interested in working with Google to ensure that Java doesn't become a fractured environment" -- you see that?

Andy Rubin: Yes, I do.

Oracle: Saw that at the time in 2007?

Andy Rubin: Faint recollection.

Oracle: Ever ask anybody what fragmentation meant?

Andy Rubin: No.

Oracle: Email says that Google would work to help solve fragmentation issue?

Andy Rubin: Proposing revised statement.

Oracle: Don't know what he is talking about re: fragmentation?

Andy Rubin: No.

Oracle: Ever ask him about it?

Andy Rubin: No.

Oracle: None of you thought that fragmentation was a good thing?

Andy Rubin: No.

Cross Examination of Andy Rubin
Van Nest: We reserve our questions until our case begins later this morning.
Judge Alsup: The witness may step down. Next witness.

[ Next witness, Eric Schmidt. ]

Update 5: Here's the first section of the testimony of Eric Schmidt, being asked questions by David Boies, once Mr. Schmidt arrived -- he was 15 minutes or so late, after which Oracle finished its case in chief, and Google began with its first witness, Eric Schmidt:

Judge Alsup: While we are ascertaining Eric Schmidt's whereabouts… Dawn, will you hand out another one-page guide, approved by lawyers on both sides, a list of witnesses and their positions, including spelling of their names. [ handed out ]. Stick it in the back of your steno pad.

Google's lawyer Robert Van Nest: The witness was scheduled for 8:30. I apologize.

Judge Alsup: Anything for Oracle to get in, stipulations, interrogatories?

Oracle: No.

Judge Alsup: We'll take a 15-minute break now. [Admonitions.]

Google: He will be here in 5 minutes.

Judge Alsup: Any issues for the Court?

[ none ]

[ Judge Alsup takes a break, too. ]

During the break, Eric Schmidt comes in, meets with Van Nest at the head of Oracle's table, then they move over to Google's side and talk. Eric Schmidt looks relaxed, as does Van Nest.

Judge Alsup comes in. Eric Schmidt is seated. Jury comes in. Eric Schmidt is sworn in.

Testimony of Eric Schmidt

Oracle: [ Boies] May I approach? TX6- Presentation in August 2005, with regard to Android to the GPS (Google product strategy) group.

Eric Schmidt: Yes.

Oracle: You were present for this?

Eric Schmidt: I believe so.

Oracle: [References page 8 of the exhibit.

Oracle: Google has more control of user experience and built-in Google apps?

Eric Schmidt: Yes.

Oracle: What are Google apps?

Eric Schmidt: I didn't write this… apps that [ lost the words].

Oracle: You certainly expected Android to result in more revenue for Google search?

Eric Schmidt: Yes.

Oracle: You said, "would pay for Android, and a whole bunch more"?

Eric Schmidt: Yes.

Oracle: "It's not an OS, It's an Open Handset" slide.

Oracle: References: "Disrupt the closed and proprietary dominant Industry players: Microsoft and Symbian. Eventually build... (p 24) Plan: beat Microsoft and Symbian to volume by offering an open handset solution.

Oracle: You wanted to get your handset out there.

Eric Schmidt: Volume means more users. Certainly more customers. Vast majority of revenue is from search. In principle, we would wind up with more revenue.

Oracle: After it had been announced and had been out for a while, this is what you found was happening?

Eric Schmidt: Yes.

Oracle: [TX158] Do you recognize?

Eric Schmidt: um… not particularly. I have it in front of me. Pease proceed.

Oracle: You remember it?

Eric Schmidt: Probably.

Oracle: Presentation on Android. You saw this on or at the time it was produced?

Eric Schmidt: I don't recall explicitly. Similar to others I saw at the time.

Oracle: TX 251 -- another, related document. Same subject matter. Have you seen it before?

Eric Schmidt: I haven't seen it before.

Oracle: Back to XT158- a presentation from Andy Rubin?

Eric Schmidt: It's not clear to me.

Oracle: TX 151. You've seen this before?

Eric Schmidt: Yes.

Oracle: GPS notes taken at a GPS meeting, Eric Schmidt: taken by a note taker, yes. 3/17/2007.

Eric Schmidt: Not the same as previous TX's referred to.

Oracle: Go down to the end, do you see note attributed to Andy Rubin?

Eric Schmidt: I do.

Oracle: "Still shopping for libraries and JVM's"

Eric Schmidt: Yes.

Oracle: Has to do with Android?

Eric Schmidt: Yes.

Oracle: Andy Rubin says that this is a hotspot. What does he mean by that?

Eric Schmidt: Not sure.

Oracle: Not having class libraries and JVM were slowing Android down?

Eric Schmidt: Yes.

Oracle: there was as time when you didn't had class libraries or JVM.

Eric Schmidt: Yes, because we chose to build them ourselves. We chose to use Apache software.

Oracle: For SE?

Eric Schmidt: Defers to technical folks.

Oracle: You understand that software had not been authorized for mobile use?

Eric Schmidt: I was not aware of technical details.

Oracle: In laymen's terms.

Eric Schmidt: I was not aware of details of licensing of the software that was available to us.

Oracle: Don't you investigate?

Eric Schmidt: Not personally.

Oracle: Aware of anyone who did investigate it?

Eric Schmidt: Now aware.

Oracle: TX- EM -- Google Peso on Open Handset. P 7 of TX. -- Possible deal between Google and Sun -- "Why do the deal"?

Eric Schmidt: Yes.

Oracle: "Critical to our Open Source handset?

Eric Schmidt: Yes.

Oracle: Drastically speed up development schedule?

Eric Schmidt: Yes, that was their belief [ presenters… ES didn't prepare the presentation.]

Oracle: TX10- email from TL to Andy Rubin, Dan Grove. I don't expect that you have seen it. It's not to you. Have you seen it?

Eric Schmidt: No.

Oracle: "We have been asked by LP and Sergei…" -- Were you aware on or about August 2010 that Larry and Sergey…

Eric Schmidt: We were trying to figure out what to do. This email speaks to that.

Oracle: "We conclude that we need to negotiate a license for Java."

Eric Schmidt: Yes.

Oracle: Was this reported to you?

Eric Schmidt: Not reported to me.

Oracle: In august 2005, ref TX1, presentation on July 26, 2005, to GPS. Were you at this?

Eric Schmidt: I don't know. I don't recognize it.

Oracle: You generally attend GPS meetings?

Eric Schmidt: If I am in town. I do not recognize this document.

Oracle: Page 9, do you see " must take license?"

Eric Schmidt: I see that. Given what I recall, this is not accurate.

Oracle: move to strike, non-responsive.

Judge Alsup: [ Strikes ]

Oracle: Look at document in context or what we were talking about a moment ago re: Apache and field-of-use restrictions. May 30, 2008, from Bob Lee to Eric Schmidt. 2nd paragraph, "Sun puts field of use restrictions for Java SE", you see that?

Eric Schmidt: Yes.

Google reserved its cross examination until Google presents its case, shortly. Oracle's case is now presented, and it rests.

[PJ: You know what's salient to me? Oracle didn't call Scott McNealy. He's still alive. If it were true that Sun was upset at Google's Android when it began, or if he could rebut the testimony from Jonathan Schwartz that Sun was fine with Android, don't you think they would have called him to the stand?]

Judge Alsup: We've reached a milestone. All motions of Rule 50 have been deemed to have been entered at this time.

Judge Alsup: [to Google] You may call your first witness.

Google: Google calls Eric Schmidt.

Judge Alsup: Welcome back! [ laughter ]

Testimony of Eric Schmidt, Google's First Witness

Google: Background… Berkeley, graduated in CS PhD, 1982, went to Sun, 14 yrs. Engineering manager, ran operations, then CTO, primary executive in charge of Java.

Eric Schmidt: The joke was that CTO was Chief Talking Officer.

Google: Was Java developed at Sun while you were CTO?

Eric Schmidt: Yes.

Google: What was your role?

Eric Schmidt: Taking from primary author, James Gosling, working with Bill Joy.

Google: Duration of development?

Eric Schmidt: 1989 to 1994. "Attempt to build a new religion around a new way of thinking."

Google: When was language released?

Eric Schmidt: In 1994, here in the Moscone Center.

Google: How was it released?

Eric Schmidt: It was released with the understanding of developing with partners. [He negotiated licenses with Netscape and Oracle.]

Google: Why do this?

Eric Schmidt: We, who had come out of Berkeley and Unix, put the software out there to allow others to modify it. You could use Java under license, or you could make your own, as long as you did not call it Java.

Google: How did you promote it?

Eric Schmidt: Education, conferences.

Google: JavaOne? What is it?

Eric Schmidt: A series of conferences for developers. Demos of what was great about Java, but not many apps. We hoped for 500 people, but got a huge response.

Oracle: I've been relatively patient.

Google: Brought in by Reinhold. will move on soon.

Google: When Java was introduced, were the APIs released too?

Eric Schmidt: Yes.

Google: What is the purpose of the APIs?

Eric Schmidt: Language is useless without the APIs.

Google: How were APIs made available?

Eric Schmidt: Book by Bill Joy, documentation.

Google: APIS were developed at the same time as JPL?

Eric Schmidt: Yes.

Google: How would Sun make money off it?

Eric Schmidt: You could pay a modest license fee, or do your own implementation.

Google: Did anyone at Sun ever call APIs blueprints?

Eric Schmidt: No.

Google: Is that an accurate phrase?

Eric Schmidt: No.

Google: When you left Sun…

Eric Schmidt: I went to Novell. Stayed in touch with Sun folks working on Java.

Google: You went to Google as CEO?

Eric Schmidt: Yes.

Google: Now?

Eric Schmidt: I am Executive Chairman of the Board.

Google: Doing?

Eric Schmidt: Lots of travel, giving speeches, working with governments.

Eric Schmidt: Before, on anything really important, all three (him, Larry Page and Sergey Brin) had to agree.

Google: What was the purpose of buying Android?

Eric Schmidt: Larry Page and Sergey Brin were interested in mobile. Interesting tech.

Google: What was the strategy?

Eric Schmidt: It evolved 2005-2006. Build a platform that would be free and clear of other licensing restrictions that were slowing down others in the industry. It would allow things to grow really quickly.

At the time we were very concerned about Microsoft's mobile strategy. Before the iPhone revolution.

Google: See series or presentations from Andy Rubin for strategies?

Eric Schmidt: Yes.

Google: Was it always certain on how to proceed?

Eric Schmidt: No. The goal was always clear.

Google: Variety of options on how to proceed?

Eric Schmidt: Yes. Discussion with Andy Rubin regarding specific issues, including $2M for buying out licenses for codecs.

Google: TX1- very early in Android.

Eric Schmidt: Yes.

Google: Your first meeting?

Eric Schmidt: I was not at this meeting.

Google: Andy Rubin: "need coffee cup logo for carrier certification", do you understand what that means?

Oracle: Objection.

Judge Alsup: Overruled. please explain what that expression means as it relates.

Eric Schmidt: The judge wins. In 2005, Java had evolved to being primarily used on mobile carriers. Sun's strategy was for mobile development manufacturers to use the Java coffee cup logo.

Google: You said that the next line is wrong, "must take license from Sun"

Eric Schmidt: [ referred to using the coffee cup logo "

Google: Google contacted Sun.

Eric Schmidt: Yes.

Google: You contacted other companies.

Eric Schmidt: Of course. Qualcomm, Sun, etc.

Google: email communication with folks at Sun?

Eric Schmidt: Yes.

Google: What was the purpose of talking with Sun?

Eric Schmidt: Always better off working with everybody else, talking. McNealy was boss and a friend for 14 years. He'd call me up and try to sell me Sun servers, which we didn't need.

Google: You had direct contact with McNealy?

Eric Schmidt: Yes.

Google: TX205 -- recognize it?

Eric Schmidt: I do.

Eric Schmidt: It's an email from me to Scott McNealy, and his response.

Google: [Displays email.] Starting with it, highlight whole first paragraph. Read that and tell us what you are trying to communicate to Sun.

Eric Schmidt: Andy Rubin is talking with Alan Brenner, "very interesting partnership proposal" -- Does is make sense for Google to work with Sun? Second paragraph: Google has engaged with Sun's Java platform team to form an alliance for your Open Handset platform. "we should do this together"?

Google: Did Mr. McNealy respond?

Eric Schmidt: Yes.

Google: What was response?

Eric Schmidt: "Typical Sun response, saying Jonathan and the team are on top of this. Worried about replacing revenue that this would submarine. Need to understand the economics.

Google: You continued to have dialogue with people at Sun?

Eric Schmidt: Yes.

Google: Who was Jonathan Schwartz?

Eric Schmidt: CEO.

Google: You knew him well?

Eric Schmidt: I hired him, yes.

Google: You talked regularly with Mr. Schwartz?

Eric Schmidt: Yes.

Google: TX245.

Eric Schmidt: It's an email from Jonathan Schwartz to Eric Schmidt, cc'd to Scott McNealy.

Google: TX 435.

Eric Schmidt: Jonathan Schwartz to me. Google: "Eric, my team has alerted me that our negotiations to jointly create a Java-Linux mobile platform are at an impasse". April 2006. "I believe that this effort is an important project for both of our companies. We're at a critical stage in the industry" "Don't hesitate to let me know how Scott or I could move this forward." Eric Schmidt: "Sun is ready to embrace Google's innovation". We are not willing to cede complete control of management ( hosting, authorizing committees) for key components of the stack"

Google: What Sun components were you hoping to leverage form Sun?

Eric Schmidt: Their APIs and their source.

Google: Is your understanding that to use their source, you have to take a license?

Eric Schmidt: Of course.

Google: This idea was still in-play in 2006?

Eric Schmidt: Yes.

Google: TX2372- recognize this?

Eric Schmidt: I do.

Google: What is it?

Eric Schmidt: A message from Andy Rubin to Jonathan Schwartz.

Google: Page 2 of exhibit… recognize email exchange? [Exhibit entered into evidence, no objection.]

Google: Congratulating Jonathan. Why?

Eric Schmidt: Promoted to CEO, July 2006.

Google: Partnership between Google and Sun mobile.

Google: Concerns?

Eric Schmidt: We, Google, should have the final decision regarding what part of Sun's technologies that we take in. Subtle and important differences.

Google: Were you able to reach an agreement?

Eric Schmidt: Unfortunately, no.

Google: Why not?

Eric Schmidt: Contributors have little control after release. Sun wanted much tighter control.

Google: Was money the reason?

Eric Schmidt: Not really, $30-$50M. Money as not the big issue.

Google: After the negotiations broke off in 2006 …

Eric Schmidt: Date of exhibit is May 2006.

. Google: At that point, what did you do?

Eric Schmidt: Wanted to make sure that we could support the Java language.

Eric Schmidt: We started cleanroom implementation. Totally different form the way that Java worked internally.

Google: What do you mean by that?

Eric Schmidt: We went with a route that didn't use the byte code approach.

Eric Schmidt: This is referring to Google's activity after 2006.

Google: Google wanted to continue developing Android. Sun was no longer in the picture?

Eric Schmidt: Best approach was to go partnership. Unable to seal the deal, so we invented a different approach. Didn't use team from Sun, didn't use their IP.

Google: Were you still using an open source approach?

Eric Schmidt: Yes. G'oogles opinion is that OSS is the best way to go about developing software.

Google: Were parts of Android developed using OSS?

Eric Schmidt: Android was developed to implement the Java APIs.

Google: How did Google go about using the Java language?

Eric Schmidt: Programmers used the Java language to write the code.

Google: And you knew that you could do this without a license?

Eric Schmidt: Yes.

Google: In 2006, when you went in a different direction, what was your understanding about using the Java language?

Eric Schmidt: We could use it as we saw fit. A language by itself is not very useful. When I say "language", I mean the language with APIs.

Google: Sun knew you were using Java?

Eric Schmidt: Yes, absolutely.

Google: Did anyone at Sun ever tell you that you couldn't use Java language?

Eric Schmidt: No.

[More to come]

Update 6: The day continues with Eric Schmidt on the stand, Google's Robert Van Nest asking the questions:

Eric Schmidt: We put our Google technology under the Apache license. It is unusually liberal. I can modify your code and not give it back to you.

Google: Are there some fairly well-known commercial entities that are using Android that are not under the Apache license?

Eric Schmidt: They are all under the Apache license. Amazon Kindle is an example of someone who implemented something radically different.

Google: Announcement was on behalf of the Open Handset Alliance, not Google?

Eric Schmidt: Yes.

Google: Where was devkit placed?

Eric Schmidt: Handled the same as source.

Google: Would anyone who wanted to know what APIs Android was using find out?

Eric Schmidt: Looking at the Android devkit.

Google: Java APIs Android APIs?

Eric Schmidt: Yes.

Google: TX3441, email from Jonathan Schwartz to Eric Schmidt.

Eric Schmidt: 3 emails Nov 2007, above it, Nov 9 2007.

Google: At bottom of email, read…

Eric Schmidt: "Let us know how we can support our announcement next week. We're happy to do so."

Google: Refers to?

Eric Schmidt: Release of an SDK.

Google: Next part, your response.

Eric Schmidt: "Thanks, Jonathan. I will review right now."

Google: Schwartz response?

Eric Schmidt: "A few of your alliance partners have reached out to us to start a similar but separate effort."

Google: What was the gist of his message?

Eric Schmidt: Would love to have one big tent, as opposed to having a lot of splintering.

Google: you knew Jonathan Schwartz well?

Eric Schmidt: Yes.

Google: Met often with him?

Eric Schmidt: Yes.

Google: What is a blog?

Eric Schmidt: Describes blog.

Google: Was his blog widely read in Silicon Valley?

Eric Schmidt: It was.

Google: You read it frequently?

Eric Schmidt: I did.

Google: TX2352- Jonathan Schwartz blog.

Eric Schmidt: Yes.

Google: "Congratulations, Google, Red Hat and the Java community" "heartfelt congratulations to Google."

[PJ: You can read the blog entry yourself here.] Google: Reference to NetBeans for Mobile platform. What is NetBeans?

Eric Schmidt: A developer environment. This is Sun's entry in the area.

Google: "We've done a ton of work to support developers on all Java based platforms, and were pleased to add Google's Android to the list."

Eric Schmidt: "And needless to say, Google and the Open Handset Alliance just strapped another set of rockets to the community’s momentum..."

Google: Did you continue to have discussions with Sun?

Eric Schmidt: Yes.

Google: Jonathan Schwartz?

Eric Schmidt: Yes.

Google: McNealy?

Eric Schmidt: Yes.

Google: Google was a big customer of Sun, right?

Eric Schmidt: Yes.

Google: What other items did you [collaborate on]?

Eric Schmidt: Java toolbar for MS IE. Microsoft was making it difficult to get to Google. Whenever a customer installed Java, they got this toolbar installed too.

Google: What about StarOfice?

Eric Schmidt: Describes.

Google: Did you and Jonathan Schwartz continue to discuss Android after the launch?

Eric Schmidt: Yes.

Google: What did you discuss after the release of the SDK?

Eric Schmidt: Jonathan Schwartz wanted Java to be successful.

Google: Building Sun products on top of Android?

Eric Schmidt: Yes.

Google: TX 3446, March 2008, Eric Schwartz to Jonathan Schwartz, cc: Andy Rubin.

Oracle: Objection, hearsay.

Judge Alsup: Let me see exhibit.

Google: Fairly routine email from Eric Schmidt to Jonathan Schwartz, like dozens we have been seeing.

Judge: Incomplete objection?

Oracle: References two other articles, one is license itself, other is something else, neither of which is attached.

Google: This is how the document was produced.

Google: These are links, your honor.

Oracle: Also informed that this was added to the exhibit list in the last three days.

Judge Alsup: Has it been on the list for the required length of time?

Oracle: For 2 days.

Google: Document is complete.

Judge Alsup: Before we allow 3446, you must establish more foundation.

Google: Did you meet earlier with Jonathan Schwartz on this?

Eric Schmidt: Yes.

Google: What happened?

Eric Schmidt: I met with Jonathan Schwartz in Sun's cafeteria. Details of their licensing approach vs. our licensing approach. Jonathan Schwartz asked for more technical details. I was concerned about miscommunications amongst technical teams.

In the Java community, Google was winding up with a Java mobile. Maybe there was critical software that Sun had that would make this possible. What were Sun's choices?

Google: Jonathan Schwartz asked for information?

Eric Schmidt: Yes. This email is the response.

Oracle: Objection.

Judge Alsup: Admit with instructions to jury that there is no proof that there was anything in the public domain. It shows communication between Eric Schmidt and Jonathan Schwartz.

Google: Paragrah 1, the whole paragraph says: "Our license is Apache v2, public domain. Google technology is forced on no one."

Eric Schmidt: The user can choose what they use. No patent assertions for Google patents. If a competitor of Google wanted to take any Google technologies out, they were free to do so.

Google: Paragraph 2, Sun would be able to take Android and "do whatever you like" with it. Did you and he discuss that subject previously that day?

Eric Schmidt: It was both a technical question and "is it permissible", so the second part was answered yes.

Google: TX 2531 -- recognize it?

Eric Schmidt: Yes.

Google: What is it, May 2008 email between Jonathan Schwartz and you.

Oracle: Objection.

Judge: May I see it?

Google: Offered in same vein. All I am asking is what he heard.

Judge Alsup: Denied. [PJ: Means that the objection by Oracle was denied.]

Google: Did you continue to speak with Jonathan Schwartz about Apache licencing?

Eric Schmidt: Yes.

Google: Remained a customer of Sun?

Eric Schmidt: Yes.

Google: How frequently? [did they talk?]

Eric Schmidt: Once every 6 months.

Google: Did he ever express concern about you using Java or Java APIs?

Eric Schmidt: He did not.

Google: Did they ever express any concerns?

Eric Schmidt: No.

Google: Did he ever say that there was any need for Google to take a license?

Eric Schmidt: No.

Google: What was your understanding from Sun?

Eric Schmidt: Our usage was permissible. Very comfortable that what we were doing was legally correct [and within the spirit of our agreements with Sun].

Google: Did Jonathan Schwartz ever say anything that contradicted that?

Eric Schmidt: He did not.

Google: Were you aware of any other platforms that used Java technologies?

Eric Schmidt: Where were a lot.

Google: Who?

Eric Schmidt: IBM.

Google: Were there any objections from Sun regarding IBM's use?

Oracle: Objection. Hearsay.

Judge: Sustained.

Google: Any other companies using Java APIs?

Eric Schmidt: Mobile phone manufacturers.

Google: Was it your understanding that Java APIs were in wide use?

Eric Schmidt: Yes.

[Google wants to make a proffer, asks for a sidebar. After a few minutes, Mr. Jacobs goes over. Judge Alsup is leaning over the bench, listening with his left hand clasped on the back of his neck. They've spent perhaps ten minutes at the sidebar. 10:44 AM sidebar discussion ends.]

Google: Are APIs blueprints?

Eric Schmidt: They are not.

Google: Why not?

Eric Schmidt: It's the way you make something happen, for example printing, or show something on a screen. The *way* you do that is up to the other side of the interface… It can be executed in any way by the other side.

Google: For how long have you held this view?

Eric Schmidt: For my some 40 years as a computer scientist.

[Break. Jury exits. Witness steps down.]

Cross-examination of Eric Schmidt by Oracle's David Boies

Oracle: You gave the impression that you had many conversations with Jonathan Schwartz. Where did you meet with him?

Eric Schmidt: Sun cafeteria.

Oracle: That was where you remember Jonathan Schwartz not saying that there was any problem with Google using Java?

Eric Schmidt: Yes.

Oracle: When did you recall these meetings?

Eric Schmidt: Don't recall.

Oracle: [Recital of Eric Schmidt's deposition:]

Oracle: What, in you view, led you to believe that what you were doing was not infringing?

Google: What what we had done was free and clear.

Oracle: Who at Sun gave you that impression?

Eric Schmidt: Jonathan Schwartz.

Oracle: Anyone else at Sun?

Eric Schmidt: No.

Oracle: Orally, or in writing, or both?

Eric Schmidt: Orally.

Oracle: Anyone else present?

Eric Schmidt: No.

Oracle: Where else did you meet?

Eric Schmidt: At his office at Sun. I don't remember his exact phrase or … this is just my impression.

[End of deposition read-back.]

Oracle: You stand by this testimony today?

Eric Schmidt: Yes.

Oracle: You understand that Google doesn't have any rights to use Sun's technology?

Eric Schmidt: Correct.

Oracle: You are not claiming that Google got any rights [to Sun's technology] under the Apache license?

Eric Schmidt: No.

Oracle: You are not claiming that any of the rights that Google got came through the Apache license?

Eric Schmidt: Correct.

Oracle: Are you aware of any other companies that are using Sun APIs (other than Google) that do not have a license?

Eric Schmidt: Not aware either way.

Oracle: You are aware that Google doesn't have a license from Sun to use Sun's Java APIs?

Eric Schmidt: Yes. Oracle: Sun and Oracle ...

Eric Schmidt: I do.

Oracle: There were a number of licenses available to Google to be able to use Sun's APIs?

Eric Schmidt: Yes.

Oracle: GPL.

Eric Schmidt: GPL makes JAva APIs available under the terms of the GPL.

Oracle: Google could have used the GPL to get a license for the Sun APIs?

Eric Schmidt: GPL gives rights to access to the source code.

Oracle: GPL would have given all the access to the Sun APIs?

Eric Schmidt: That would be a question to ask of a Sun person.

Oracle: Let's take Mr. Rubin… what did he say?

Eric Schmidt: He said that we were going to use the Apache license. They are very similar in approach.

Oracle: TX154. Do you see where Andy Rubin wrote, "GPL license doesn't work for us"?

Eric Schmidt: Yes.

Oracle: Did he tell you this?

Eric Schmidt: I am sure that he did.

Oracle: TX 1048, ZDNet article, "Sun concerned Google's Android will fracture Java", Aug 2008.

Eric Schmidt: I see it.

Oracle: Did you see this news report on or about when this came out?

Eric Schmidt: I did not.

Oracle: Did you see ANY report about this?

Eric Schmidt: I don't recall seeing one.

Oracle: Android was announced in Nov 2005, but didn't release SDK until much later?

Eric Schmidt: It was about week later.

Oracle: After Google did release the Android SDK which told people which APIs were in there, that was when the ZDNet article was published?

Eric Schmidt: I see that.

Oracle: You say that you have to use APIs to use a language in a particular way.

Eric Schmidt: Yes.

Oracle: Did Google have to use Sun's APIs?

Eric Schmidt: There is no difference.

Oracle: Are you aware of any company that programs in Java that doesn't use the Sun Java APIs?

Eric Schmidt: I'm not aware of any. As far as I know, every company uses Sun's APIs. You might be thinking about the class libraries.

Oracle: Has anyone talked with you about a European company named "Spring"?

Eric Schmidt: No.

Oracle: From the beginning of Android, you intended to use Sun's Java language?

Eric Schmidt: Yes.

Oracle: You decided to use Sun's APIs?

Eric Schmidt: Without the APIs, the language is useless. There is a language interface and the library.

Oracle: Distinguishing between Sun APIs as being the 37 Sun Java APIs.

Eric Schmidt: [I understand that this is your definition.]

Oracle: You were told by somebody that Google had to use 37 of Sun's APIs to be able to use Sun's Java?

Eric Schmidt: I don't recall specific technical conversation about this.

Oracle: As far as you are aware, did Google make any effort to create your own API?

Eric Schmidt: I'm having trouble with your question, because I don't agree with your use of the word "interface". I want to answer your question truthfully.

Oracle: I want you to answer truthfully. [PJ: James Niccolai's coverage adds that at this point, Schmidt laughed, which almost certainly wasn't the reaction David Boies was hoping for.]

Oracle: Just to be clear… you copied the 37 Sun Java APIs.

Eric Schmidt: We used the function names.

Oracle: Is what you are saying is that you only copied the names?

Eric Schmidt: [Tries to answer with an explication, is asked to answer y/n] Yes.

Oracle: How many of the APIs did you copy?

Eric Schmidt: As I understand it, the implementation uses the API definitions.

Oracle: You know that you went out and hired a company to work on Java… Noser?

Eric Schmidt: I don't know who Noser is. Is it a company or a person?

Oracle: [Shows scope-of-work to Schmidt.] Do you recognize this?

Eric Schmidt: Not that I can recall.

Oracle: Did you ever hear anyone at Google describe Noser as being "super shady"?

Eric Schmidt: NO.

Oracle: Google is interested in J2SE 1.5.

Eric Schmidt: I see that.

Oracle: Is it your understanding that ...

Eric Schmidt: I was not briefed and am not familiar with the technical details at this level.

Oracle: Regarding "must take license with Sun… were you talking about a trademark license?

Eric Schmidt: I want not to speculate. I said that we'd be combining the second and third.

Oracle: Tou knew that this had to do with more than trademark?

Eric Schmidt: No.

Oracle: Points out "Tim Lindholm negotiates first OSS J2ME JVM license with Sun."

Eric Schmidt: Was not possible to license the trademark without the code. It's true that if you get the OSS J2ME license that you get a trademark license, too. The copyright is a small part of the license.

Oracle: [Harrumphs about what is large or small.]

Eric Schmidt: TCK license was something that came after I left Sun.

Oracle: What does TCK stand for?

Eric Schmidt: I don't know. What does TCK stand for?

Oracle: You are saying you don't know?

Eric Schmidt: I left Sun 20 years ago. Things change.

Oracle: Email that Andy Rubin sent to TL: "Google needs a license for TCK." Did anyone tell you that?

Eric Schmidt: I don't recall.

Oracle: TX7, Andy Rubin to Larry Page Oct 7, 2005, seeking license to Open Source Android.

Eric Schmidt: This is not a message or email thread that I was on.

Oracle: [Some question regarding what rights a TCK license would provide.]

Eric Schmidt: TCK license is a test of compatibility. I don't know if it conveys any copyrights.

Oracle: Did you know what licenses Java required?

Eric Schmidt: No. That was a detail that I was not familiar with.

Oracle: There came a time when when Google was sufficiently worried about being sued that they considered buying all the rights to Java?

Eric Schmidt: Yes. Let me modify that. Do you mean the executives?

Oracle: Yes, the executives.

Eric Schmidt: Yes.

Oracle: You didn't want to be sued over Java?

Eric Schmidt: Correct.

Oracle: TX406 email from a Brett Slatkin (sp?), Jan 2009, proposal to buy full rights to Java from sun, to fix lawsuits faced by Google. Recall?

Eric Schmidt: I do.

Oracle: Apologies, I used TX406 before it was entered into evidence.

Google: Objection.

Judge: It's an email from the witness on the stand?

Oracle: Yes.

Judge Alsup: Overruled.

Redirect of Eric Schmidt
Google: Get some terms clear. Did Google need a license of any kind to use the Java language?

Eric Schmidt: We did not.

Google: Why not?

Eric Schmidt: Languages are in the public domain. Sun wanted everyone to use the Java language.

Google: Did Google need (in your view) a license from anyone at any time, need a license for the APIs?

Oracle: Objection.

Judge Alsup: Witness is not a lawyer. "Too raw a legal question" -- not allowed.

Google: Regarding the source code in the libraries, what was your ability to use them?

Oracle: Objection.

Judge: I will allow this line of questions in a slightly different way, as follows. It seems that you are drawing a distinction between the implementing code and the organizational structure.

Google: That is exactly right.

Judge: Coming sideways in my brain, may be the case with the jury, too. If someone needed to use a cleanroom… [ missed ]

Google: What is the difference between the language, the source code, and the implementation?

Eric Schmidt: From the first year of computer science… 2+3=x; print x. The word "print" is calling the API to do something that involves a lot of code to cause something to appear on the printed page.

Google: You say a lot of code, why?

Eric Schmidt: It takes a lot of code to do something complex… some nice company or nice person provides the API and says that I will take care of the print statement.

Google: [Asks for description of cleanroom, and the print code].

Google: Which one of these elements are the Google engineers implementing in the cleanroom?

Eric Schmidt: The libraries that implement the APIs.

Google: In your discussions with Mr. Schwartz, did the use of the APIs ever come up?

Eric Schmidt: Never.

Eric Schmidt: We wanted our software to be as widely open as possible. Helps to find bugs, fix problems.

Google: Once the source code is public, anyone can have access to look at it?

Eric Schmidt: Yes, worldwide.

Google: Did anyone make this claim [APIs] before this lawsuit?

Eric Schmidt: No.

Google: TX 406 -- start with text from bottom, from Mr. Slatkin. Do you know who he is?

Eric Schmidt: No. It looks like he is on the Google app engine team (not part of the Android team at Google)….

Google: He mentioned that Google could buy Java from Sun?

Eric Schmidt: He did, and you can see by my response that this would not likely work (JAVA stock ticker symbol, etc.). [ Indicated some exasperation at the time with the length of what he considered to be a fruitless discussion].

Google: Want to dismiss Eric Schmidt, but have one question to ask out of hearing of jury.

Judge Alsup: Fine, but put up diagram from Josh Bloch (on easel). Can you see that?

Eric Schmidt: Yes.

Judge Alsup: Can you tell what it's doing?

Eric Schmidt: Describes the comparison of 2 values.

Judge: Using this exhibit, which part is the API, which part is the declaration?

Eric Schmidt: I understand it's confusing. The print example is something from the 1970's. This is a description of making a comparison between two things. The declaration is still part of the application's interface. Everything below the declaration is the implementation, and would be proprietary. The stuff above it is the interface.

Judge Alsup: What command would you put in this code to call up this comparison?

Eric Schmidt: In my code, java.lang.max(1,2), would return 2. To be completely precise, result=java.lang.max(1,2).

Judge Alsup: What role does the declaration serve?

Eric Schmidt: Back to printing… it has to know whether it is printing an integer or a floating point. Multiple implementations are possible for the same function.

Judge Alsup: I am done, but this is coming out of your time, though.

Google: In your understanding, the API that is in the public domain is in the declaration; the name and variables, available in the public domain for anyone to use?

Eric Schmidt: Yes, without the declaration, you don't know anything about how to call it [the library].

Google: But how about the cleanroom?

Eric Schmidt: If I had seen this source code, and vehemently disagreed with it, I could not have worked in the cleanroom; I would no longer be clean.

Re-cross of Eric Schmidt
Oracle: References Java Class Libraries poster…. a list of Java class libraries. How much of what's on this chart did Google use or copy in its Android product? Eric Schmidt: I'm not familiar with the specifics.

Oracle: More than half?

Eric Schmidt: I don't know.

Oracle: TX18, discussion about whether Java APIs are the same or different. March 24, 2006, Andy Rubin says "The Java APIs are copyrighted." You see that?

Eric Schmidt: Yes.

Oracle: Is your understanding that the Java programming language is copyrighted?

Eric Schmidt: I don't know.

Oracle: Did he ever say this to you [about copyrights of the API requiring license]?

Eric Schmidt: Not that I recall.

Oracle: No further questions.

Google: Mr. Schmidt can be excused.

Judge Alsup: Both sides agree?

Google & Oracle: Yes.

Google Andy Rubin Back to the Stand
Judge: Welcome back, still under oath.

Google: Introduce yourself.

Andy Rubin: Apple, Danger, Android.

Google: First became interested in computers?

Andy Rubin: Lived in same town as Reader's Digest. His father's friend took him to work and he fell in love with computers.

Google: When you came to Apple, what did you do?

Andy Rubin: Statistical process control for manufacturing.

Google: Yesterday, questions about Danger. What was the product?

Andy Rubin: TMobile sidekick, first cell-phone sidekick.

Google: What was interesting about it?

Andy Rubin: It allowed people to surf the Internet, as differentiated from flip-phones.

Google: How much additional functionality did you need to get to a smartphone?

Andy Rubin: [A lot of work.]

Google: The license you took at Danger from Sun. Explain why you took one.

Andy Rubin: We wanted to be able to have everyone be able to build apps, Java was being taught in schools, we wanted to use all those developers. Did some press, word got out, and Sun got in touch with us to sell us some of their technologies. We wanted access to ther TCK.

Google: Slow down, why did you want access to that?

Andy Rubin: We wanted programs written on our device to run on other companies devices.

Google: What else?

Andy Rubin: We wanted to get "marketing lift" from the recognition of Sun's Java.

Google: Did you believe you needed to get a license from Sun for the Java language or the APIs?

Andy Rubin: No.

Google: Why did you start Android?

Andy Rubin: I am an enterpreneur. I wanted to make it more mainstream, something that everybody would have. Wanted to give it away for free so that it [buying it] becomes frictionless.

Google: How were you going to make money?

Andy Rubin: If we were right, then we'd know that a lot of people were using our software, and we knew then that we could sell services to large carriers.

Google: Was it an advantage from the point of view of the manufacturers?

Andy Rubin: I think so. It was free; they didn't have to pay anything for it. We estimated that the cost of the phone was 20% accounted for by the cost of the software.

Google: How did you come to work for Google?

Andy Rubin: I knew Larry Page, and emailed him to let him know that I had left Danger and started Android, [and one thing led to another].

Google: How did you ship that?

Andy Rubin: Build service that we were going to offer services for.

Google: What was the benefit to Google for making available the platform and open sourcing the code?

Andy Rubin: It made Google apps available on a mobile platform, making them universally accessible.

Google: Putting the business strategy aside, were there different ways that you could build the product?

Andy Rubin: Tens of thousands of ways to do that.

Google: Had you made the decision by the time you had gotten to Google regarding whether you were going to build it yourself?

Andy Rubin: Still undecided. We knew we were going to create an open platform, and knew that we were going to put together the OHA (Open Handset Alliance).

Google: Who was in the OHA?

Andy Rubin: Motorola, Samsung.

Google: Who else?

Andy Rubin: Many other technology platforms. We actually paid some of these other companies to build products (focused tech) and give them away.

Google: At the beginning, talking with partners, had you decided for sure that you were going to use the Java language?

Andy Rubin: we hadn't decided for sure...

Google: What other languages might have worked?

Andy Rubin: Python.

Google: What other languages were considered?

Andy Rubin: Languages that were being taught in universities. Javascript, Python, lua.

Google: Is javascript any relation to Java?

Andy Rubin: No, just a poor naming decision.

Google: Drawbacks to using Java?

Andy Rubin: Not as fast as C, interpeted language.

Google: Did you get in touch with Sun?

Andy Rubin: Yes.

Google: Were you involved directly in negotiations with Sun?

Andy Rubin: Yes.

Google: In 2005?

Andy Rubin: Yes, early discussions.

Google: What then were you talking about?

Andy Rubin: Open sourcing Java, making our product come out sooner.

Google: TX1… what is TX1?

Andy Rubin: Presentation given to executives at Google in July 2005.

Google: How long had you been at Google at that point?

Andy Rubin: Two weeks.

Google: Who would have been there?

Andy Rubin: Google executives.

Google: Tell us what's on the page "What is Android?" Explain what "The Model" is.

Andy Rubin: Starting to get locked into what the model is… take OSS and integrate it into their platform. Google has direct connection to the consumer.

Google: "Java" page 9 of 10. "Java +javascript/XML = Key differentiator". Java vs. Javascript.

Andy Rubin: Cleanroom implementation of Java, plus web tech (javascript) plus XML.

Google: [XML discussion.]

Andy Rubin: Talked about getting a TCK to ensure compatibility and to get Java trademarks for marketing.

Google: What does that mean?

Andy Rubin: Get us a license to open source the Android platform with Sun components.

Google: TX617- end of document, email chain. Starts at bottom. You recognize it?

Andy Rubin: Yes.

Google: What is it?

Andy Rubin: Email thread between me and Sun over licensing of Java, June 2005. An email discussion between me and Leo Cizek and includes Tim Lindholm.

Google: You said, "I understand that… Looks like there are no problems with moving forward with plan to Open Source."

Andy Rubin: Yes. Sun had to make a decision whether to partner with Google. They'd have to throw out their standard license.

Google: Is this an email from you to Cizek a few days later… "sorry, I was unclear, I was asking for you to modify the various agreements to allow our model, per our discussions with Vineet. I'm really hoping that is the approach that Sun is comfortable with".

Andy Rubin: Yes.

Google: Who is Vineet?

Andy Rubin: Someone high up in Sun.

Google: TX11- what is this March 2006 status update? Page one, background, first paragraph. Read the first sentence, slowly.

Andy Rubin: Google was seeing partnerships with leading wireless companies and service providers. … "Sun is considering providing a Java implementation as a key component of the platform."

Google: Would include source code?

Andy Rubin: Source code and proprietary implementation.

Google: If Sun provided their source code, would you need a license for that?

Andy Rubin: I'd think so.

Google: Picture at the bottom, what does that show?

Andy Rubin: A depiction of the ecosystem. Wanted to memorialize in writing what we were talking about.

Google: First paragraph of last page: "Sun and Google jointly develop an Open Handset solution. Sun's main responsibility is the Java code VM class libraries, MDP stack and relevant JSR's. Google's main responsibility is the OS, system framework, graphics, telephony.

Google: TX18… document you were asked about last night by Mr. Boies. Starting at the bottom, who is Greg Stein?

Andy Rubin: First interaction with him. A Google employee who was asking questions about J2ME.

Google: J2ME is proprietary?

Andy Rubin: Yes.

Google: [missed question]

Andy Rubin: He was being vague. He was under a confidentiality agreement.

Google: What was he proposing?

Andy Rubin: Open sourcing the Sun J2ME.

Google: What was your initial response?

Andy Rubin: Couldn't see how you could open source Sun's J2ME.

Google: What did he say?

Andy Rubin: He had some scheme to open source it.

Google: Did you respond?

Andy Rubin: Yes. I told him that the Java libraries are copyrighted.

[ missed a bit here ]

Google: Along the way with your discussions of Sun (2 years), did you present various statuses to Google management?

Andy Rubin: [ yes ]

Google: What is this?

Andy Rubin: A template we present to management if we are proposing to spend a large amount of money.

Google: TX 331 offered into evidence.

Oracle: Objection.

Judge Alsup: Let's see the document.

Google: This is a proposal to the EMG, it's the same as many that we have already seen.

Oracle: It's a draft.

[Juror #1 is wearing a zipped-up poofy jacket (down?). It's not all *that* cold in the courtroom. Maybe this juror is getting sick?]

Judge Alsup: I think it's best to find out from witness first-hand.

Google: Were there in Spring '06 presentations to EMG?

Andy Rubin: Yes.

Google: By time of spring, generally what were these presentations about?

Andy Rubin: Paying Sun to open source Java.

Google: What would Google be providing?

Andy Rubin: Donating the Android code and paying money to Sun.

Google: Why pay money with Sun when it was going to be open sourced?

Andy Rubin: It would be a change in their business model.

Google: How large a payment?

Andy Rubin: $28-$34 million payment to Sun.

Google: Did you get approval?

Andy Rubin: Yes.

Google: Was this presented to the EMG?

Andy Rubin: It was.

Google: Was this your work or the work of your team?

Andy Rubin: Yes.

Google: Move TX331 into evidence.

Oracle: Objection, hearsay.

Judge: Sustained.

Google: What was it that prevented there from being an agreement?

Andy Rubin: the definition of "open"… cannot still charge money for it or control it. Sun still wanted to control it.

Google: When did negotiations with Sun end?

Andy Rubin: 2007. Still needed to come to market with a cleanroom implementation. Andy Rubin: You were responsible for getting the Android platform to market?

Andy Rubin: Yes.

Google: Names of engineers working on Android?

Andy Rubin: Brian Swetland, others.

Google: Cleanroom implementation?

Andy Rubin: Separated folks working with Sun businesses. I set the rules… engineers couldn't get access to proprietary source, no click-through agreement-protected technology.

Andy Rubin: We wound up shipping the cleanroom implementation.

Google: Visual depiction of Android components?

Andy Rubin: An architectural diagram.

Google: TX 2881(?), what is that?

Andy Rubin: The Android platform architectural diagram.

Oracle: May I ask 3-4 Q's?

Oracle Asks Andy Rubin Final Questions

Oracle: Android was launched in Nov. 2007? Was this on the web site in 2007? Exactly this version?

Google: Not represented that this was exactly the document. Not produced for this trial.

Oracle: It's a demonstrative. Needs foundation.

Google: is this a good time (12:59) to start that?

Judge Alsup: 25th anniversary of court clerk, Dawn.

[ jury dismissed ]

[witness dismissed]

[time breakdown: Oracle: 780; Google: 589 minutes.]

Judge and Parties' Lawyers Confer After Jurors Have Left

Judge Alsup: Juror that had problem with employer, no longer needs assistance.

Judge Alsup: Issues? None.

Judge Alsup: Next witness?

Google: Dan Borenstein built Dalvik, worked on Android platform.

Judge Alsup: Are we going to have any more testimony about names… how anyone would write a program using these names, etc?

Google: Yes, Your Honor.

Judge Alsup: It has been said that there is an elaborate series of relationships amongst the APIs. Want to learn more about how programmers use the APIs.

Google: There will be an expert witness who will do that. Will walk through that and invoke the APIs.

Judge Alsup: Will he do this for both Java and Android?

Google: Since they are the same, they will work fine on either or both.

Judge Alsup: Is there going to be an exhibit?

Google: Yes.

Judge: Equal time for Oracle. Mr. Jacobs?

Oracle: Distinguished the difference between writing an application program and copying the whole API, and when an application programmer writes a program, they do not implement the class library.

1) What words and symbols are necessary versus what Google copied.

2) An application programmer may rely on the API, but Google copied the class library APIs that use the SSO.

Judge Alsup: What is the work, as a whole? You both want me to figure that out. Mr. Jacobs used the phrase "stand-alone", referred to each advertisement being a stand-alone unit. Does this mean that we have to analyze each API to see their relationship? Seems like Oracle wants to have it both ways. If it stands alone, how can it be tied into all these other APIs?

Oracle: To state precisely, the 37 APIs are packages.

Oracle: Google took several volumes, copied the collection of volumes.

Judge Alsup: But then they can't be stand-alone, if they have cross-references.

Oracle: We know that the packages come from JSR's. There may be interfaces that are relied upon elsewhere. What is quite powerful was what Google was trying to bring into evidence, the document that had links in it.

Google: Not analagous at all.

Judge Alsup: In order to make sure that you understand one chapter of Westlaw, you have to go read another chapter. How much record is there that when a method invokes some other method and requires it to be run, I've heard lawyer arguments but nothing is in evidence. Maybe it's in the big thick book?

Google: You will get an explanation for that from Professor Astrachan.

Google: You cannot do anything with the language without the basic building blocks. Every new JSR builds upon packages that are already there. They are all dependent on the fundamental packages. [Differentiates literature and computer languages.] With regard to Oracle's claim that Google took the whole thing, if Google had taken just the max and not java.lang.math.max. [ lost something here ]

Judge Alsup: No decision on point that says that computer languages have not been copyrightable.

Google: API's are not new to computer languages. Every component in your computer is because everybody knows the APIs. They are the nuts and bolts for how computers work. The issue of APIs specifications not being available would be a substantial departure from the way that the computer industry works today. There are proprietary APIs. Banks have them. Financial institutions and closely held, because any outsider could use it; keeps data protected.

Judge Alsup: Poems?

Google: Poems are not a method of operation.

Judge Alsup: 102b argument.

Google: Exactly.

Judge Alsup: Johnson controls decision… SSO of a computer program was copyrightable.

Google: There is a way to address that.

Judge Alsup: I've said to both of you about how that works in the industry, trade secrets…. none of it is in the record as evidence.

Adjourned for the day.

Update 7: 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.

  View Printable Version

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