The jury is asking the judge questions, so while we wait for a verdict, I'd like to settle a question from the Oracle v. Google trial once and for all. If you recall, when Scott McNealy was on the stand in the Oracle v. Google trial, he testified under oath that then-CEO of Sun Microsystem Jonathan Schwartz's blog was just personal, not corporate. Michael A. Jacobs, Oracle's attorney handling the closing argument yesterday, repeated that thought. Perhaps we should look at the Sun SEC filings and see what Sun told the SEC about the blog? I mean, these filings are certified as being true, are they not?
Here we go, from 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 http://www.sun.com. The following filings are posted to our Investor Relations web site, located at http://www.sun.com/investors 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. Does that sound like the CEO's blog was strictly personal or corporate? Some things are just obvious, but it's good to get it settled, once and for all. I wish I'd found this earlier, actually, but whatever the jury doesn't know, at least in the court of public opinion, we know now the answer.
Here's what the judge's instructions [PDF] to the jury told them about witness credibility:
7. A witness may be discredited or impeached by contradictory evidence or
by evidence that, at some other time, the witness has said or done something or has failed to say or do something that is inconsistent with the witness’ present testimony. If you believe any witness has been impeached and thus discredited, you may give the testimony of that witness such credibility, if any, you think it deserves. And while we wait for the jury to plow its way through all the questions and intricacies of the jury instructions, here's an aptly named article by Andrew Binstock on Dr. Dobb's on what happens if Oracle wins, Oracle And The End Of Programming As We Know It. He writes:
8. Discrepancies in a witness’ testimony or between a witness’ testimony and
that of other witnesses do not necessarily mean that such witness should be discredited. Inability to recall and innocent misrecollection are common. Two persons witnessing an incident or a transaction sometimes will see or hear it differently. Whether a discrepancy pertains to an important matter or only to something trivial should be considered by you.
However, a witness willfully false in one part of his or her testimony is to be distrusted in others. You may reject the entire testimony of a witness who willfully has testified falsely on a material point, unless, from all the evidence, you believe that the probability of truth favors his or her testimony in other particulars.
If Oracle prevails in its claim that APIs can be copyrighted, nearly every aspect of programming will be changed for the worse.
And that's why people are lined up at the courthouse waiting for this verdict. One correction, however. The jury doesn't get to decide the issure of API copyrightability. The judge will do that, if necessary, after the jury deliberates and reaches a verdict on the fair use and other Google defenses. If they decide Google's use was fair use, then there will be no decision on whether or not APIs can be copyright-protected in this litigation. On Forbes, Oliver Herzfeld, SVP and Chief Legal Officer at Beanstalk, explains that aspect, and he also remarks on what an Oracle win would mean for software development:
But the consequences of this landmark case are potentially much broader for the software industry, as a win for Oracle could fundamentally change the legal standing of programming languages from their current status as generally free instruments to create software applications, to an altered status as products themselves that must be licensed by platform developers, hardware manufacturers, app programmers, and all the other participants in the food chain. In other words, Oracle is asking for broadened protection under copyright law than a developer would typically expect.
Here's a screenshot of the blog post in question, from November of 2007, hence
a date covered by the annual report, which covered the dates June 2007 to June 2008:
You can find it and read it in full here.
Update: Caleb Garling reports on the day's activities, where the jury failed to reach a decision today. They'll be back tomorrow first thing.