An economist testifying for Oracle in federal court May 18, Day 8 of its copyright infringement case against Google, told the jury that the search company's use of Java APIs in Android should not be considered "fair use" of the open-source programming language.
The testimony by economist Adam Jaffe was the final word of the day in the third Oracle v. Google trial, litigation that began six years ago when Oracle sued Google for its use of 37 Java APIs that Oracle acquired when it bought Sun Microsystems earlier that same year.
During the same session, Oracle filed a motion to end the trial in its favor before the matter is resolved by the 10-member jury. Oracle, in court papers, told the judge that no reasonable jury could back Google's fair use argument, based on the evidence previously presented in the trial.
The trial will continue while U.S. District Judge William Alsup considers Oracle's legal arguments. If the trial continues as scheduled, closing arguments in the trial should begin May 23.
In 2012, Alsup had ruled that APIs are techniques—not creative works—that cannot be copyrighted, but an appeals court two years later overturned that ruling, putting Oracle in the driver's seat.
Now, in the final stage of the case, in which Google must prove "fair use" of the open-source Java programming language, Oracle has asked the court to award it $9.3 billion in lost profits and damages.
Jaffe told the court that "if Google hadn't copied the 37 Java APIs in question, Android very likely would not have been as successful ... while Java was poised to enjoy continued success" in the mobile space, the economist said.
"Google's use of the Java API packages in Android is not the kind of copying fair use was intended to allow," Oracle lawyer Peter Bicks said.
Jaffe testified that Java—and therefore Sun's (and later Oracle's) business—was "undermined by the introduction of Android."
In assessing the stakes, Jaffe said Android had reaped $42.3 billion in revenue between 2008 and 2015, a windfall that would not have materialized without the copied Java technology.
"The whole enterprise may have failed without it," he told the jury.
Google's timing was good in deciding to develop a smartphone operating system when it bought the Android franchise, Jaffe told the jury. Java-powered phone OS developed by Sun were installed on about 1 million handsets in 2005, he said.
"If you come late, you're playing catch-up. It's hard to convince people your network is going to be big enough to be worth joining" if you're late to market, Jaffe said.
The market soon discovered that Android phones—which came out in 2007, only months after the first iPhones—worked faster and better than Java phones, and sales started to take off. Sun's "window of opportunity" began to close, he said.
Jaffe posted a slide that showed Android-related revenue—mostly from advertising—was $16.8 million in 2009, $600 million by 2011, and $13 billion by 2014.
Sun released Java to open source in May 2006. Apple's iPhone with its iOS operating system launched in 2007, and Google, feeling the pressure to get its own smartphone system into the market, released Android later in 2007.
Since Google launched Android, the system has generated some $42 billion in revenue—at Oracle's expense, the database maker contends, because Google copied components from the Java programming license into Android without getting a license from Oracle to do it.
Android is the most prevalent OS in the world, and Oracle believes it deserves a piece of profit from all that success. More than 3 billion devices globally currently use Android; 1 billion devices running Android shipped in 2014 alone. There are about 19,000 distinct devices that use the operating system.
As a result, Oracle has been on a seven-year legal mission to reclaim damages, in the realm of $9.3 billion, it believes it is owed by Google.
Google contends that it used Java APIs in a "fair use" manner, according to open-source software licensing rules. "Fair use" requires the developer to contribute back to the open-source community new components that others could also utilize in future software development.