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Day 11 at the Oracle v. Google Trial -- Closing Statements, Goes to Jury ~pj - Updated 5Xs
Monday, April 30 2012 @ 03:40 PM EDT

The copyright phase of the Oracle v. Google trial is in the hands of the jury. I'll have the full report transcribed for you shortly. Our reporter in the courtroom, mirror_slap, says that last thing that happened, after the jury left to begin deliberations is that Google's lead attorney Robert Van Nest, of Keker & Van Nest, went and shook hands with the lead attorneys for Oracle, Michael A. Jacobs of Morrison & Foerster and David Boies of Boies Schiller & Flexner.

That's how it is with lawyers. Nothing personal. In SCO v Novell, Boies and Jacobs fought against each other. Here, they fought side by side. Lawyers fight hard for their clients, but it's not like CEOs getting into it. Very polite and frankly, it's why courts work at all. And why sometimes you do need a court to settle a complex dispute.

So, now we wait. It could be minutes, hours, or days. Then the patent phase begins. And eventually, an appeal by whoever loses, I would assume.

Jump To Comments

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

Update: We have three reports, but I'll do the two closing arguments together as one:

Oracle v. Google, Day 11, part 1

[I arrive in the courtroom 7:25 AM. Galley is pretty full. The lawyers all seem tense. Oracle's table looks pretty glum. Some smiles at Google's table.


7:32 Judge Alsup enters. Court comes to order.

Judge: So, good morning again. I've [read] your comments on the final jury instructions.

Judge: The best way to go through this… Most objections are denied. We are not going to argue them.

Judge: All good things must come to an end. [ chuckles ]

Judge: Minor things that I am going to change:

Jury instruction #25, minor changes, grammatical corrections.

#26 s/public/anyone/

#27 adding "To be clear, with regard to a different issue. The parties are in agreement that the SSO of the API packages is more than de minimis." I think you all agree? [Yes, both sides.]

#30, line 18, change to read, "but the parties agree that the issue is for the judge to decide."

Also, line 17. The burden would be on Google to…. this statement of the law is to put some of the evidence you've heard into context.

Special verdict form #3 -- s/ yes, infringing, no not infringing

#? "Your answers to 4a and 4b impact what the judge has to decide, not on what the jury has to decide.

Judge: Any heartburn?

Google: No, Your Honor.

Oracle: No, Your Honor.

Judge: I cleaned up copy with these changes to you in time to use in your closings.

Google: Can we get that in electronic form?

Judge: Dawn tells me that [one of the jurors] wants to stop jury service. It is complicating her life. I think that we should bring her out and ask her some questions.

Oracle: [ use a sidebar for this ]

Google: Before we do that, small item, the transcript for the 18th. THe transcript says testimony on the 18th says that exihit TX 1041 was entered into evidence but it was not. 434, line 16 of Larry Page.

Judge: The way to do this is to leave the record as it is, but there will now be a subsequent record [ today ]. Deputy will correct clerk's record.

Judge: let's bring [juror] out.

Juror: There's an audience? [ waves at gallery ].

Judge: you want to do this as a sidebar? Juror: Yes.

[Sidebar w/ both lead attorneys, Judge Alsop, and juror. She is a slight woman in her 50's, red, shag-cut hair, glasses, dressed in black jacket and gray slacks. She is earnestly making her case, with lots of hand gestures. "Beseeching" is the word that comes to my mind. 7:46… still at the sidebar.]

[ 7:48 sidebar ends. ]

Judge: First 1/3rd of instructions will be read to the jury before closings, second 2/3's after the closings.

Judge: Question on the "implementation" files… is it true that the entire file was copied?

Google: [ Baber] It appears that the source code was derived from de-compiled bytecode.

Google: [Van Nest] Yes, they are copies, but they appear to be minimal.

Judge: I told the jury to compare the contents of the file, but if the entire copy of the file has been... "Minor issue".

Oracle: [Jacobs] Housekeeping matter - joint list of exhibits that the parties have prepared.

Judge: Jointly agreed upon?

Google: Yes.

Oracle: List of deposition exhibits.

Judge: Let me see what the form of that is…. "We send that in without explanation?"

Google: Yes.

Oracle: TX1090 Astrachan, 1091 Agrawal; 1092, Clark.

Judge: OK.

Judge: Jurors present?

The Clerk [Dawn]: Yes.

Judge: Thanks the members of the public and the press for staying so quiet.. Encourages us to continued cooperation that we stay quiet. Some members of the audience want to leave when jury instructions are read. Probably will take 10-12 minutes… there are so many of you…

[ jury comes in ]

Judge: Welcome back. Here's our plan:

1) read jury instructions, burden of proof, what is evidence, what is not evidence, telling you what the law is. 2) turn it over to the lawyers for several hours for closing arguments.

3) matters of law covered.

4) turn it over to you.

Judge: [To jury] Are you all able to stay past 1PM today?

[All can stay ]

Judge: [Reading of instructions.]

Judge: Members of the jury, it is now time for me to give you instructions. It is your duty to find th facts, whether the burden of proof has been carried. Must follow all instructions, not just some. The evidence consists of

1) sworn testimony of witnesses

2) items entered into evidence.

3) stipulations.

Here is what is not evidence:
1) argument, statements and objections by lawyers. Lawyers are not witnesses. Your memory controls.

2) questions by a lawyer is not evidence, unless it is adopted by the court as evidence.

3) stricken evidence.

4) limiting instructions w.r.t. evidence.

5) evidence may be direct or circumstantial.

5a) direct, what the witness personally saw or did.

5b) circumstantial-- example of water on a sidewalk in the morning [PJ: indicates it probably rained or someone spilled or washed car and left, etc. - Update: The actual, final jury instructions [PDF] say this: "Circumstantial evidence is proof of one or more facts from 19 which you could find another fact. By way of example, if you wake up in the 20 morning and see that the sidewalk is wet, you may find from that fact that it 21 rained during the night. However, other evidence, such as a turned-on garden 22 hose, may explain the presence of water on the sidewalk. Therefore, before you 23 decide that a fact has been proved by circumstantial evidence, you must consider 24 all the evidence in the light of reason, experience and common sense."]. Must consider all evidence based on reason, and common sense.

6) jury must decide how much weight to give each piece of evidence.

7) belief of witness' testimony. Witnesses' memory, manner while testifying, interest in outcome of case, contradictory testimony, whatever impacts believeability.

8) testimony of 1 witness worthy of belief is sufficient to establish fact. Cannot weigh just by number of witnesses, but the convincing force of the evidence. 9) witness may be discredited or impeached. Your decision regarding that. Inability to recall is okay.

10) a witness willfully false in one part of their testimony means that you can reasonably distrust everything else they say.

11) charts and summaries are only as good as the underlying material.

12) burden of proof… preponderance of evidence. This is a burden on both sides. Must decide whether a claim is true or not true. Scales must tip somewhat on its side. "More likely than not".

Judge: That is whaere we will pause in reading of instructions.

Judge: Closing argument instructions:

Judge: Burden of proof is on the plaintiff [Oracle].

Judge: Plaintiff goes first, then Defendant, then plaintiff rebuttal. 90 minutes per side.

Judge: Nothing that is said by cousel is evidence, but it is an important opportunity [PJ: to see how each views the overall picture].

Judge: On behalf of Oracle America, Mr. Jacobs.

Oracle's Closing Statement, by Michael A. Jacobs:
Oracle: Good morning. Thank you again for your service on this jury. The evidence is complex and technical. It's really important, large companies. Large numbers of lines of code, number of Android devices, amount of money.

We come from all different backgrounds. "People like us decide these titanic questions". Thanks again for carefully following along.

The issue is pretty simple: Did some company use another person's property without permission? Like camping on your land, using your bathrooms without permission. You are fully equipped to address this. Walk through the evidence.

One company deciding to use another company's property without permission. There were negotiottions between Sun and Google. Mr. Rubin's testimony… what did Google want Sun to do? Throw away their existing license and change their business model. He had an idea of how to open source in a way that nobody had conceived. Sun said No, we want to stick to our business model. WORA [Write Once, Run Anywhere] is important to us. Disagreement persisted, and so here we are.

Now we know about what is in dispute: the copyrights. "Why would anyone write a good book, compose a beautful song, or write a great API, when you know that somebody would just rip you off?"… like a great symphony. Cleanroom was not clean. Copying is in Android, 750K activations per day. Oracle's SSO [structure, sequence and organization] has been turned on 750K per day, without Google ever acknowledging. No permission from Oracle for Android. Designed to protect compatibility and WORA. We proved from top to bottom that Google executives knew that they needed licenses. We know exactly what they were saying to each other, and that Google's executives knew that this day would come.

Was Google's use "fair use"? Sun didn't sue everyone, why are you suing us? -- You don't have to sue everybody in order to protect your IP from commercial use. The Jonathan Schwartz blog post is not permission; it is not a license.

Walk through the verdict form:

1) Copyright case. You saw copyright registrations. TX450-455 and 460-464, all the exhibits. Sun registerd copyrights for version after version, release after release. You might wonder about what was sent…. no issue about what was copied, no issue on ownership. Registrations covered that property.

Question 1: As to the compilable code, for the 37 Java API packages, taken as a whole, has Google infringed on the SSO of the code?

Instruction 17, the line, "I instruct": "what is protectable in the Java software"? We say that it's the SSO, and the code.

Instruction #19. Google agrees (line 5) the SSO of the 37 API packages is substantially the same as the 37 API's in Java. ( page 10 of 19).

Structure of names, page 20 of instructions, last sentence, "individual names are not protected, but the names, as a part of the SSO, are protectable by copyright."

Dan Bornstein: "the names are the same"

Dr. Astrachan… package names, class names, method names are the same. Structure is the same.

Google said that the implementation is different. Judge will say that the SSO is protectable. You saw source code in this trial that showed you that the SSO is the same. SSO is visibly the same.

Oracle: In the trial, you heard about 15M lines of code in Android. We are not comparing the 15M lines of code. "You don't escape infringement by adding". Copying was extensive. 400 classes, 4500 methods, 7K declarations.

Google's example of math.max. Not a representative API specification. Doesn't even show up on the Java poster TX1028. "Extensiveness and importance of what Google took". Java SSO are complex. math.max is trivial.

You will hear from Google that the copying wasn't extensive. Oracle asked Dr. Astrachan, What if you took out the offending lines? Android would not work. It's important and substantial. Ask you to vote on the verdict form, "yes."

Google's excuses: Fair use. Will get a lengthy instruction on fair use. Here is the breakdown for each of those parts. Fair use is a very important part of copyright law. Law allows us to use other people's copyrighted work under fair use. Fair use "may include use for" criticism, comment, news reporting, teaching, scholarship, research. Google's use was none of these. Google took the APIs and the SSO from our code and put it in their code. Doesn't even fit in the character of "fair use."

Fair Use factor 1:

1) purpose and character of the use… commercial vs. educational… "good for humanity might favor that analysis" But that's not why Google did it. "Google launched Android to make money." Cites Eric Schmidt's testimony. "Android is hugely proficable for Google"… cites Schmidt and Mr. Agrawal.

Whether the work is transformative… whether Google added something new… [mirror_slap: Hmmm. An open smartphone where there wasn't one before?] Google took the 37 APIs and put them in the Android software for a business purposes. Why? to leverage Java developers. Java has been used for smartphones… Danger, Inc. HipTop, Blackberry, Nokia series 60. "Is Android cool? A hot new thing? Of course it is." [PJ: Is it possible Jacobs does not understand the difference between a Blackberry and an Android phone?]

Fair Use, factor 2:

Nature of copyrighted work… creative, functional, factual. Example of Jon stewart writing for Comedy Central's The Daily Show. "API design requires significant expertise and time". Larry Ellison and Mark Reinhold testimony. [PJ: Huh? Wait. How about Oracle's API claims are like Jon Stewart writing for Comedy Central's The Daily Show?]

Designing APIs requires creativity and skill, cites Ed Screven, etc.

Josh Bloch., entertaining witness… Google's own witness.

Fair Use, factor #3:

Amount and substantiality of the portion of use in relation to the copyrighted work as a whole. 37 packages out of 166. About 1/6th. Very substantial. Important qualitatively. Google and Oracle experts agree that these 37 APIs are important. "They took the crown jewels of the 37 API packages." Bornstein, Bob Lee.

Judge: coming up on 40 minutes so far.

Oracle: Fair Use, factor 4:

The effect upon the potential market. Google is harming Oracle's Java licensing businees. Reference: case form Oracle's witnesses. Kindle fire is Android. "The harm is very concrete." Why sign for a license if I can take for free? "This is the very deep threat that Android poses to the entire Java community." Consistency is critical to Java. Android fragments Java, and "Android fragments the Java application developer community." "Google understood that it should avoid fragmenting Java. October 11, 2005 Andy Rubin to Larry Page. Octobr 26, Tim Lindholm to Andy Rubin: Avoid fragmentation.

Android blocks Oracle's Java opportunities. Edward Screvan. Safra Katz: "It's really hard to compete with free." Harm to Java is at all levels: licensing, fragmentation ... We think that you will conclude that Google's use was not fair use. Really important, large, direct harm. "Has G proven that what they did was fair use"? Suggest you check the "No."

Oracle: Documentation… Google "paraphrased" the Java documentation." Cites Bob Lee on "paraphrasing." Instruction on documentation is different. SSO is protected for compilable code. For documents, do they look "virtually identical"? You will conclude that they are virtually identical. Fair use on the documentation: "Google copied Java documenation across the board". Mr. Lee said that he would have prefered to send people to Sun's site for the documentation. Conclude that Google's use of the documentatin was not fair use.

Copied code. "Google literally copied files" Decompilation. Not by accident. An overt, deliberate action. 8 files taken as a whole. This copying is infringement.

Rangecheck… "only 9 lines of code", but it is important… called 2600 times just in powering on the device. Significant. "Even lay people like us can recognize that this is significant. Files are still available to the public. Cites Dan Bornstein.

Other issues raised by Google:

1) are the APIs a part of the language? Except for a small number, the APIs are not a requirement for the Java programming Language.

2) only need a license if you are using the brand. "Sun's Specification License applies regardless of whether a company uses the Java brand"

3) Google knew that the APIs were copyrighted and licensed.

4) Google's Android is not a "cleanroom" implementation.

5) "Google knew it needed a license if it did not partner with Sun for Android"

6) "Has Google proven that Sun and/or Oracle engaged in conduct that Sun/Oracle knew or should have known that would have led Google to think that Android would be "off the hook"? Click-through license. "Sun refused to modify its license for Apache Harmony". Nothing quiet about the Sun/Apache Harmony dispute. There never was a license given to Apache for Apache Harmony.

7) "Schwartz's blog post is not a license". No written agreement. McNealy said that it was not an official statement of Sun's position.

[PJ: Well, it's true he said it, but is what he said true? [Cf here and here.] Even if it were, as one Groklaw commenter puts it, "Oracle wants Google to be bound by the opinion of an engineer (Lindholm) but doesn't want Sun to be bound by the word of its Chief Executive Officer (Schwartz)." Mr. Jacobs. Really.]

8) Schwartz blogged with "gritted teeth"… Sun was in a weakened position at this time. "Sun publicly expressed concern (TX1048) regarding Android"

9) Sun told Google that they needed a license.

"Sun warned Oracle about battle with Google/Android". "You are going to have a big issue on your hands."

What was Google thinking? "No document, not a single document" showing that the Scwartz blog can show that Google relied on what Schwartz said. "Google chose to make enemies early on". "Google was bent on its strategy". Dan Bornstein said that he made the decision to use Java before the Schwartz blog post. After the blog post, Andy Rubin said, "This is touchy". TX405, Bob Lee… restrictions on using Apache Harmony for mobile devices.

"Google knew that it faced lawsuits." "Google tried to avoid discussions with Sun." Oracle steps into the picture, "There's a new sheriff in town". Schwartz was unable to enforce. If there is no evidence that ..

Judge: Past 60 minutes [9:10]
Oracle: Email August 6, 2010, Tim Lindholm to Andy Rubin: "what we have been asked to do from Larry and Sergey", says nothing about blog post. "Google still needs a licence" slide. End of slides.

So here we are in 2012. Google still doesn't have a license. Google is still using Java. Took IP. Leverage off Sun/Oracle's investment in Java. Our system asks you [to get a license]. Blog post is not a license. Hold Google accountable for its use of IP in Android without permission. Thank you.

[ rests ]

Judge: Time to take a 15-minute break.

[ jury leaves ]

Judge: anything for the court?

Google: No, Your Honor.

[ break ]

[ 6 very intent Oracle lawyers confer. Fred Norton talking with Michael Jacobs, then David Boies talking with Michael Jacobs. Some smiles. ]

9:30, Judge Alsup comes in.

Judge: Any issues?

Judge: Admonishes the public that nobody will be let in once closings start again.

Judge: Anyone waiting?

Judge: bring in jury [ jury enters after a bit of a delay… we still have all 12 ]

Judge: Full attention now? [ to jury ]

Google's Closing Statement

Google: [Robert Van Nest] "It's been a great privilege to represent Google. Evidence that you've seen and heard from Google can only bring verdict for Google. Jonathan Schwartz, CEO of Sun, knew that Google was using Java and didn't have a license from Sun. Schwartz: "We didn't have grounds to sue". "There is no copyright infringement, and we don't have grounds to sue."

No infringement, no copying. Google played it by the book.

Android is for phones. Transformed Java to something that was a full stack. Not a word about the Java APIs with Sun. Not a word. Once it was clear that Google and Sun could not reach agreement, Google went on its own.

Google's use of the 37 APIs from Java in Android was open. Everyone knew about it. What is Android? It is an Open Source platform. Nobody is excluded. Anyone can work on it. Sun just failed to build their own smartphone.

Schwartz: "Android strapped a set of rockets onto Java." Profits on Java are up at Oracle. Most popular language in the world, due in part to Android. Despite all the buildup in this case, I don't think it's even close."

Google deserves a Google verdict. Point-by-point. Key points of evidence:

1) Sun gave the Java language to the public.

2) Google built Android independently using free and open technologies. "Dirty clean room? 9 lines of code was [found] copied after scouring."

3) Google made fair use of the Java language APIs to promote transformation, to the public good.

4) Sun publicly approved Android's use of Java. Not just the Schwartz blog… meetings, JavaOne conference.

a) Sun gave Java language to the public. "Open and free for anyone to use." All they can accuse is the SSO. They cannot accuse anything else.

b) Sun's business plan: Free and available APIs". Points to Josh Bloch's example code. APIs were promoted, put in books, taught in university courses, promoted at conferences. "I never realized that anyone could protect an API". Lots of examples of Sun encouraging use of APIs… Apache Harmony. Schwartz: "No reason why Apache cannot ship Harmony today". "Cannot use Apache Harmony in mobile devices? -- not so!" Schwartz: "They just can't call it Java." "On mobile devices?" "Sure".

Apache Harmony wasn't the only example: GNUclasspath, in the 1990's. Created their own VM, own class libraries. People at Sun were helping people implement these independent implementations. Sun would sell services. "Doing it with Sun's blessing."

c) copyright infringement…. the biggest part of this trial. Copyright infringement requires copying.

Google knew that it could not use Sun's source. The whole question is on Jury Question #1. #1a. Copyright infringement… Oracle has burden of proof. If it's too confusing, or they mucked it up,[ you have to find for Google.] Jury instruction #25… determine if the copyrighted work, the work as a whole… Java SE. 2.8M lines of code in Java SE. Compare that with the SSO. Direct comparison slide. The source code is all completely different. Other than the 9 lines of code in rangeCheck, the rest is all completely different. So Oracle is down to the SSO. You might be asking yourself, "What the heck is that"? You won't find that discussed with any of the parties of the day. It's not the names, not the … just the "system of organization." What is that? My file cabinet. I am not going to apologize for that."

There is some similarity, yes. But that's not the comparison. [All the talk about comparing of the 37 APIs in the J2SE to the 37 Android APIs is not the correct scope of comparison; it has to be analyzed as a comparison of the work as a whole; the 166 in the J2SE versus Android, 37 of which will be found to have the same SSO.] It's wrong legally. Cites Astrachan, Mitchell, Bloch. Similarity comes fromm the fact that if you are using a language, you have to use the qualifying names. It's all 166, not just the 37.

Instruction #18: what's in the compilable code? names, declarations, implementing code. "There's my glasses" Java SE 5.0 2.86 million lines of code, 166 API packages. 166 filled-in red blocks. Compared to gray outline boxes spread around of 37 blocks. Have to establish that the thing on the right is substantially similar to the thing on the left. They haven't proved it.

Source code implementing Android is totally different. Dr. Mitchell admitted that on Friday.

What about the numbers? Oracle JDK 1.5 vs Android. Abut 7000 lines that make up the declarations in the 37 APIs. 2.8 million lines of code vs. 10,000 lines of code. Less than 0.5% -- And Google got those from Apache Harmony.

Entire functionality of J2SE vs. SSO. Oracle's burden of proof. Dr. Astrachan said, " Those are very different" when asked, "Have you formed an opinion as to whether those two things are substantially similar or not?"

Oracle said that we copied. What about that? We have 9 lines of code that are copied. Told Noser not to use proprietary code. Use Open Source, okay.

Comment on one tactic: Oracle's whole strategy is that they have said that this is all so complicated. Uses Dr. Mitchell's slides, overlays it with file cabinet, drawers, file folders. Extending objects. Uses cookbook example. On Question 1, we will ask you to check no. Comparison of 37 API SSO to entire J2SE.

Licensing… not relevant to infringement. Google tried to negotiate a licence with Sun for a partnership and a license to Sun's source code technology, December of 2005. Need a brand license for the coffee cup logo. All the discussions you have seen fall into the period where Larry Page was negotiating for a partnership that would have required a license. TX 1 TX 7, TX 12 -- all irrelevant to infringement. All from late 2005, and early 2006. One exception was the 2010 Tim Lindholm email. You heard from Lindholm, not a part of the Android team. Had been asked by someone at Google to do something. Nothing in his email has to do with copyright.

What's the best evidence that Google didn't need a license? Right here: Jonathan Schwartz's testimony:

Q: Mr. Schwartz, as CEO of Sun, did you make a decision not to pursue litigation against Google over Android?"

A: Yes, we didn't feel we had any grounds."

Google: Fair use regaring question #2…. which only goes into play if you decide that there was copyright infringement. I have to be thorough. Google has the burden of proof on 1b. We are not talking about using the source code. We are not talking about the Java language. [Fair use balances the rights of the public vs. the copyright owner. Owner cannot prevent someone from fair use. "If it would advance the public interest". Google made fair use that was fully known to Sun by making Android fully avaialble to the public for free. It was a huge benefit to the public. Sun wasn't able to use them. Blackberry used Java, but it was not a full Java stack. Nobody proved that to you.

Four factors for fair use, all equally weighted:

1. purpose and character of use. Android is an open and free use.

2. nature of copyrighted work. Referenced Shakespeare.

3. amount of use. Just the SSO.

4. effect on potential market. No *proof* of impact. No facts proved. Java business is up 10% year-over-year at Oracle.

[PJ: Here's the official list of fair use factors, on Stanford University's Copyright & Fair Use page.]

Transformative. Google's use was transformative. Android was always intended to be Open Source. Put the product together, make a brand new product, and give it away. Yes, Google makes money on ads. Google doesn't make any profit on licensing and selling Android.

December 19, 2005, Google wanted to collaboratively develop an Open Source platform. Google invited Sun to join in this. Mr. Schwartz and Mr. Schmidt's discussion… Sun would be able to take Android and do whatever they like subject to the Apache license. Sun took Google up on this offer. Sun went ahead and developed their own product running on Android, and showed it off in 2008. Example, Connected Life, a Sun Java product, running on Android simulator. Oracle tried to use Android to make a SmartPhone. Oracle hasn't been able to do it. Nobody has to pay Google to use/develop Android.

Transformative use… the very essence of fair use. Can use it for playing games, shopping on the Net. What was Sun able to do on Java? Sun's internal docs showed that Java was stagnant. Acadia, Daneel, SunDroid, all failed projects.

Nature of the copyrighted work… functional, allows people to use the APIs. "Method is an operation that does something". Not an opera, not a book, not a play, not a song. Cuts in favor for using it in an informative way. Limited use… 10K lines of SSO v. 2.8M lines of code in J2SE 5.

Effect of use of copyrighted work. No evidence of any harm. Never able to bring to market an operating stack. Not competing. The only evidence is that the Java business is growing at a 10% rate. Schwartz: We welcome Android. I'd rather have Android using Java, rather than have them going off and using another language, making Java irrelevant."

You have heard a lot from Oracle about fragmentation [ repeats ]. Java fragmented itself. Android had nothing to do with that. Internal documentation from Sun. TX3508. From Mark Reinhold: Show "Java has always been fragmented" on mobile J2ME, there was CDC and CLDC. From Sun: "compatibility is optional". Sun, Oct 24, 2008 TX 2707: many independent and incompatible versions of Java.

Recommend you find that Google did use under fair use. Trying to achieve compatibility requires the use of the SSO.

Question 2. As to the documentation for the 37 Java API packages: "Absolutely massive failure of proof here". Burden of proof is on Oracle. The plain English description. Not talking about substantial similarity here, must be virtually identical. When writing in a technical field describing the same thing, the description will be substantially the same.

"Did they do that? Did they come even close to proving that?" "You've got to be kidding me." I got the following from Mr. Mitchell: Comparison of KeyPair. Pointing out that Dr. Mitchell failed to even meet the substantially similar point. TX6102, javax.crypto.CipherInputStream. "Massive failure of proof, all the way around.

Question 3, the 9 lines of code. Dr. Bloch. Wasn't even a part of the Android team. Joined the team in 2009. Rewrote the file timSort, gave it to Sun. Sun put it into Java. Josh made a mistake. He apologized for it right here. The current versions of Android have it removed. Definition of de minimis. Short piece of code… inconsequential. Total of 9 lines of code out of 3000 in RangeCheck.

Line-by-line copying. Files from Noser, source code comments. TX1072. The only files that made it onto a handset that were copied were these 9 lines.

#3a… no, please.

Verdict form #4. Has Google proved that Sun/Oracle knew or should have known [ that they gave Android a green light ] after Sun knew that Android was launched? It was never a secret, TX617, Fall 2005. No mention APIs from Cizek, but makes it clear that Google is using Java. Google said, "We are fine with releasing our product and not calling it Java".

Confidential CEO-to-CEO discussion, TX3441, "Let us know what we can do to support your announcement." November 5, 2007. Two key points here. "We're going to commit resources to Android." "We're pleased to add Google's Android to the list". Making our (Sun's) products available to use for develping Android. [ rocket slide ] [ giggles ] "You knew that was coming."

More people are writing code using Java than ever before.

TX3466, personal meeting between Schmidt and Schwartz. "How can we (Sun) profit from Android?" Schmidt came out of that thinking, "We've steered clear of their IP." Schwartz went ahead after getting permission he didn't need, to put Android on JavaFX.

Larry Ellison… "Isn't Java free to use?" Ellison: I don't know". First things done with regard to Java after purchase: 1) Java phone efforts and 2) JavaOne conference, "Our friends from Google". Told in 2007, Welcome to the community. In 2008, Sun said, we'd like to use Android on JAvaFX. All these things require effort, money, and time. According to Mr. Schwartz and Mr. Gupta. the point of Q#4b, speaks to all the work that Google continued to do after Sun welcomed Android.

Mr. Schwartz told you in point-blank terms that he put the APIs out there for the public to use. He is the one person who knew the situation [ from the POV of Sun].

Android is not a copy of the Java 5.0 platform. Different functionality and different success in the market. Using a subset of the APIs is fair use.

Ask a final favor: after I am done, I will sit down, and Oracle will talk again. What would Oracle say?

Thank you for your time and attention, and good luck in your deliberations.

Judge: another 15 minute break. [ no issues for the court, judge leaves ]

[ back to it ]

[More to come]

Update 2: Here is Oracle's rebuttal closing, and then the rest of the day:

Oracle's Rebuttal:

Judge: Mr. Jacobs… the floor is yours.

Oracle: The implication of what Google is saying to you is that the SSO is not copyrightable.

Oracle: Instruction #17. If you were listening carefully, you heard that Google's counsel said that the SSO was a "system", and that systems are not protectable. But the instructions say, I think, that the SSO is protectable under copyright.

Oracle: instruction #19, Google agrees that the SSO of the 37 APIs in Android is substantially the same as the SSO of Java. Google is saying that, "nobody has ever heard of this". This is substantial. To the slide used by Google for their file cabinet…. this structure is what is protectable. Google is saying, "Forget that the judge is telling you that the entire system is protectable.

The instructions tell us that this is protectable. The evidence shows you that it is important material.

Additional important instruction that we haven't focussed on: instr #28. The infringer doesn't escape liability by adding material. That's what Google's counsel is trying to argue… ignore that we copied, we added all this additional material.

Argument of similarity. What Google's expert told you is that Google's work was word-for-word, symbol-for-symbol copying. [Asks for closing slide #6 ]. Astrachan is asked about all the differences. Package names, class names, and structure have to be the same. These are the essence of what a software designer does.

To damages… somebody takes my IP, and uses it for free, the damage is obvious. TX205, Scott McNealy to Eric Schmidt, cc to Jonathan Schwartz: "I'm worried about how we are going to replace the revenue that … this effort is going to submarine". Sun was concerned about its revenues.

Fragmentation… TX 147 sorry, slide 147… "Google only showed you a part of the presentation", "compatibility is optional". This very presentation says for independent implementers is that "the Specification Licenses grants IP rights only for implementations that satisfy the compatibility requirements."

Instruction #30… The burden is on Google to prove that it had an such license or sub-license. The fact that Google used Apache Harmony under the Apache license doesn't give Google permissions.

TX1045.. The Apache Software Foundation Blog… says interesting things that are completely at odds with what G has told you. "The Apache Foundation has concluded that the JCP is not an open specification process, that Java specifications are proprietary technology… it is impossible to distribute open implementations that prevent users from litigation". Sun has a veto. TX18, Doug ?? to Andy Rubin...

Google: objection, outside scope of argument.

Judge: overruled, please continue.

Oracle: Andy Rubin:" Wish them luck, Java Language APIs are copyrighted And Sun gets to say who they license the TCK to." Very different from what Google's counsel has told you. Specification License requirements, from JSL… no supersetting/subsetting, cleanroom implementation, full implementation. Jonathan Schwartz said that the GPL's "give and force back". Cannot pick and choose what you want, as Android did. Google would destroy Oracle's ability to enforce. Very hard to compete with free… not discussing the missed opportunities for Java. Not even addressing the Java impact.

[We need to help of the justice system to enforce our rights.] [ ends ]

[Judge allows people to leave before the remainder of the jury instructions are read, if they wish. ]

Judge's Instructions to the Jury

Judge: very slight changes to the instructions. If you see some difference, it is inconsequential. The discrepancy is the judge's fault. 45 minutes to go through this. Most of us went to law school for 3 years. You get to go for 45 minutes. We have worked hard to put this in the clearest terms possible. Your part is the fact part. You are duty-bound to follow the law part.

"Has oracle/Google proven" -- Law: Oracle seeks relief from Google for alleged infringing.

Google: use was protected use. If you find any infringing, then we we consider it in the 3rd phase of the trial.

Copyright law = exclusive rights, for 99 years. Recast, transform, adapt. Distribute to the public. Owner may exercise the exclusive rights. Copyright owner retains rights to make copies. Registration with LOC. Can include books, literary works, manuals… computer programs. Only original works. De minimis, fair use, never confers ownership of ideas. Protects the particular expression composed by the author. Compare with patent or trade secret laws. "For purposes of your deliberations, I instruct you that the copyrights in question do cover the SSO of the compilable code." [PJ: This is in harmony with what he's decided to do -- let them decide the issues of fair use, etc., and after that, if they find no liability, he doesn't have to decide if SSO of compilable code is copyright protected. IF they decide there is liability, then he reserves the question to himself to decide.]

TX475, J2SE 1.4, J2SE5 covered.

Compilable code and documentation of API packages.

The term "API compilable code" refers to method names, class names, declarations, implementations." Does not include the English language comments that are in the code.

For the 37 API packages that overlap, Google admits that they do use the same SSO. Google says that its copy is not infringing.

The law about names: copyrights do not cover the names. Applies to the name Java, which is registered as a trademark. This is not a trademark case.

API documentation… Oracle claims copying of the API documentation. Google agrees that there are similarities, but denies that they were copied. Statutory defense of fair use.

Specific items that Oracle says Google copied verbatim:

1) rangeCheck method.

2) files

3) two other files

4) one other file

Google says that this copying is de minimis.

Oracle must prove that the work is original, and that Oracle owns the work. No argument from either side on ownership. Oracle says that the copying is more than de minimis. These are issues for you [ the jury ] to decide.


1) copying

2) defendant had access

3) substantial similarity for code, or virtually identical for API documentation.

To determine substantial similarity or virtually identical, you must look at the work as a whole. When comparing the work as a whole, you cannot look at the unprotectable parts of the work.

Fair use- would benefit the public at large. Google has burden of proof. Factors:

1) purpose and character of use. Commercial, novelty. Commercial use cuts against fair use.

2)transformation. It cuts for fair use.

3) amount and substantiality of what was copied.

4) effect of use on the market on the impairment of the copyrighted work.

Google says that the amounts of code copied are de minimis. Google: SSO is more than de minimis. Oracle has burden of proof to show more than de minimis copying.

The entire registered work is NOT the work as a whole for these purposes. Example: an entire magazine issue may be copyrighted, but an article, ad or photograph may [ belong to someone else ]

Must compare with all 166 API packages. Excludes the JVM.

Same for the documentation. All 166 API packages.

For Q3, this applies to the compilable code.

Unless you find that the copying was de minimis, unless Google has an express license or sub-license, then it has infringed. Google has not asserted that they did. Google can aquire no greater right than the 3rd party got.

The judge will decide on the license issue.

This statement of the law regarding licenses is to put the evidence you've heard into context

Concluding statements
Notes are only to assist your memory.

Cover up work notes in case someone from the judge's staff needs to enter the room.

Introduced the U.S. Marshall.

If a question is sent out, the judge will confer with the lawyers, which may take some time.

"Do not disclose any vote count to the court".

"Recommends deliberating from 8AM to 4PM."

Let clerk know what hours you will be deliberating so lawyers can be in the courthouse (to answer questions). May only deliberate when all of you are together.

[Marshall takes oath] Google: Before jury is excused, requests sidebar.

[Sidebar begins 12:10PM… ends pretty quickly ]

[Jury retires to begin deliberations.]

Judge: Any issues?

Judge: Work with Dawn to make sure that the exhibits are ready for the jury. I will go back into chambers to get the modified jury form. As soon as we get the schedule, will pass it on.

[ adjourns ].

Mr. Van Nest shakes hands with Mr. Jacobs and Mr. Boies. I think you could sum it up like this: Google says everybody at the time said it was fine to do what we did, and they surely knew what we were doing. Nobody at Sun objected. Oracle says there is a new sheriff in town.

Update 3: Caleb Garling at Wired has a good summary of the day, including this segment:

During the trial, Oracle has tried to show how much work is needed to build APIs. Van Nest did not disagree. But he said that Oracle had stretched the definition of a work of art by saying that APIs were akin to a symphony or a book. “They’re functional,” he argued, saying that an API simply takes and processes code.

Van Nest also attacked Oracle’s complaint that Android has fragmented the Java platform. “You haven’t heard a single developer come in and say, ‘Gee, I’m unhappy about Java because Android fragmented it,’” he said to the jury. He then presented a number of slides and emails that ostensibly show that Sun fragmented Java itself. “And they recognized it,” he said.

After each side’s closing argument, the jury began deliberations. But as of Monday afternoon, they had not yet reached a verdict. They will resume deliberations Tuesday morning at 8 a.m. PDT.

Brandon Bailey at the San Jose Mercury News highlighted this part, which some in the media have seemed confused about:
In the current trial, U.S. District Judge William Alsup has told jurors to assume the design of the APIs is covered by copyright, so they can weigh whether Google's use of the APIs amounts to infringement. But the judge has told attorneys he will make a final decision based on the evidence and the jury's findings.
If the jurors find no liability, then the judge won't decide about the APIs and whether or not they are copyrightable. If they do find liability, then he will. So for the purposes of the jury's deliberations, they are to assume they are copyrightable. But the judge reserves that decision to himself, and he hasn't indicated one way or the other yet.

And ZDNet's Rachel King adds this:

Also on copyrights, Van Nest pointed to the jury’s instructions about judging “the work as a whole,” which actually consists of all 166 class libraries and all that entails (i.e. implementing codes, names, declarations, etc.) — adding up to 2.8 million lines of code in Java 5.0 SE. Van Nest added that Oracle has to prove that it was “more likely than not that copyright infringement occurred.”

“This kind of use of APIs in this way where you use the minimum you need to be compatible is fair use,” Van Nest declared....

Judge Alsup previously warned both parties that the jury could take up to a week to deliberate, but he predicted that they would come back within a day and a half. The decision must be unanimous.

And Joe Mullin at ars technica writes:
Oracle is "not even in the ballpark" when it comes to proving similarities between the 37 Java APIs it claims ownership of, and Android's own APIs. And, he emphasized, Oracle isn't accusing Google of copying code—because it can't. After designing a computer program to analyze Android's millions of lines of code, Oracle found only nine lines of copied code in a function called rangeCheck(). That code, accidentally inserted by a Google engineer who testified last week, has been removed from all current versions of Android. "Other than the nine lines of code in rangecheck, everything in Android is original," said Van Nest—created entirely by Google engineers, or with Apache open source code.

As to Oracle's claim about the "structure, sequence, and organization" of the programming, Van Nest claimed since Oracle lacked evidence of true copying, it came around to the idea of "structure, sequence and organization"—a concept that Van Nest said was "something made up for this lawsuit," and was never fathomed by anyone at Sun or Google during their negotiations over Android and Java.

While Van Nest made it clear to jurors he thought Google should be in the clear on the primary question—and that it doesn't infringe copyrights at all—he presented a second defense as well. Because Android was transformative, APIs are "functional" tools, and Android didn't hurt the market for Java—profits in Oracle's Java-related businesses were up about 10 percent last year—any Android use of a copyrighted work should be found "fair use," in any case, Van Nest argued.

And Bryan Bishop at the Verge has the slides Oracle used in its closing argument and says he will add the Google slides if they become available.

Courthouse News Service's William Dotinga fleshes out some details regarding Google's closing:

Google did try to license Java, but ultimately decided to use the lines of code under the fair-use clause by transforming them into something they had never been before, Van Nest added. "Once it was clear Google and Sun couldn't reach an agreement, it went on its own with Apache Harmony code," he said. "It was open source. Sun had been making the Java language available for years."

"Android is transformative," he added. "Android strapped a set of rockets onto Java. Android has made Java even more popular than it was before. And Oracle hasn't shown anything anywhere near what they needed to prove infringement. Google deserves your verdict."

Google's close also focused on the cleanroom process by which software is developed and tested as a statistical experiment. Though Oracle says nine Android files in the range-check function had code identical to that of Java, Google says this came from the cleanroom process. "They talk about a dirty cleanroom," Van Nest asked. "Nine lines of code out of 15 million! So don't talk to me about a dirty cleanroom. That's a pretty darn good job, and the evidence is Android."

Google didn't steal from Oracle, it made fair use of the Java APIs in Android, something Sun publicly approved of and many other companies have done, Van Nest continued. "Sun said it themselves: APIs are out there for everybody to use," he said. "Companies compete in the implementations." Apache and GNU Classpath, for example, have used Java for free, and with Sun's knowledge or blessing, he added.

IDG's James Niccolai in NetworkWorld focused in on the Schwartz/McNealy issue:
The jury must also decide whether Sun's public statements about Java could have led Google to believe it didn't need a license to use the technology. Google has repeatedly cited a 2007 blog post from former Sun CEO Jonathan Schwartz congratulating Google on Android's release.

"Google's a big company, they know business isn't done by blog posts," Jacobs told the jury on Monday.

No? Are you sure about that? I took a look at Sun Microsystems' SEC filings, to see if they'd ever mentioned then-Sun-CEO Jonathan Schwartz's blog that McNealy testified under oath was personal, not corporate. Lo and behold, I found this, Sun Microsystems' Annual Report for the fiscal year ended June 30, 2008, its 10K filed with the SEC on August 29, 2008:
Our Internet address is The following filings are posted to our Investor Relations web site, located at as soon as reasonably practical after submission to the United States (U.S.) Securities and Exchange Commission (SEC): annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, the proxy statement related to our most recent annual stockholders’ meeting and any amendments to those reports or statements filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended. All such filings are available free of charge on our Investor Relations web site. We periodically webcast company announcements, product launch events and executive presentations which can be viewed via our Investor Relations web site. Additionally, we provide notifications of our material news including SEC filings, investor events, press releases and CEO blogs as part of the Official Investor Communications section of our Investor Relations web site. The contents of these web sites are not intended to be incorporated by reference into this report or in any other report or document we file and any references to these web sites are intended to be inactive textual references only.
Emphasis mine. Does that sound like the CEO's blog was strictly personal or was it corporate? Too bad the jury doesn't know about this, but I didn't think of it until today, sadly, and I guess no one else did either. But at least the rest of us know. I don't know about you, but that filing settles it for me.

And just so you can have a happy moment walking down memory lane from the SCO days, Maureen O'Gara has her own garbled version of the arguments, all in favor of Oracle, surprise, surprise. Guess who she quotes and clearly relies on for her explanations? Yes, of course, FOSSpatents. What a couple! I won't link to either of them on Groklaw. You know how to find them if you want to. Just a little footnote for the old timers here to enjoy.

Update Gazillion: OMG. Even Rob Enderle shows up, opining away about the trial, litigation expert that he is, as amply demonstrated by his loyally pushing SCO as ultimately winning its litigation fantasy, sticking by them almost until they failed. Guess who's side he's on!?

Update 4: We have the trial exhibits entered this day, 2012-04-30:


Update 5: 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.

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