Oracle President Safra Catz and Android lead developer Dan Bornstein were the spotlight witnesses on the stand May 16 on Day 6 of the third Oracle v. Google copyright case. Litigation has been going on for six years and undoubtedly has made several lawyers wealthy.
Oracle is seeking $9.3 billion in damages and lost profits because it claims Google has made more than $42 billion on the extremely popular Android mobile device operating system, which Oracle says borrows heavily from the open-source Java programming language without obtaining licenses. Google, as one might imagine, doesn’t intend to pay.
Catz provided one of the more humorous responses thus far in the trial. At one point, she dismissed Google’s suggestion that Oracle acquired Sun Microsystems and Java specifically to trigger a litigation showdown with Google.
Asked by Oracle attorney Annette Hurst whether Oracle bought Sun “to file a copyright lawsuit against Google,” Catz replied: “No. We did not buy Sun to file this lawsuit.”
Within several months after Oracle acquired Java when it purchased Sun for $7.4 billion in January 2010, the company filed a lawsuit claiming Google infringed its copyrights by using 37 Java application programming interfaces (APIs) in its development of Android.
In 2012, a federal district judge ruled that APIs cannot be copyrighted—that they are tools and not techniques—but a federal appeals court reversed that judgment. The Supreme Court in 2015 refused to hear the case, so it bounced back to the federal circuit court in San Francisco to decide the final contingency: Google’s “fair use” of 37 APIs in the open source software, which Java has been since 2006.
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.
Bornstein, testifying on behalf of his former employer, Google, returned to the stand for his second session.
Why Bornstein Scrubbed Certain Words Out of Comments
On May 13, an Oracle lawyer had asked Bornstein about emails in which he scrubbed references to “Java,” “Oracle,” “Sun,” “license” and “patents” in the code as identifiers in the code.
“You were asked about scrubbing for the ‘J-word,’ or Java,” Google attorney Christa Anderson said. “Please tell the jury why that was done.”
“I’m not a lawyer, but I do understand that there’s this thing called trademark law,” Bornstein said. “And I do understand that companies care very much about how their trademarks are used. In order to [use the Java language], you need to use the word Java, literally, in many places in the code. That said, we wanted to be conservative with how to use that term. We did not want to inadvertently violate a trademark.”
Bornstein said that nearly all the scrubbing took place in the comments—not in the actual code. He also said it wasn’t only trademarks that were scrubbed; most of it was a hunt for other terms he wasn’t going to say in court.
“Literally, we were looking for bad words,” Bornstein told the jury. “This was code that was going to be visible. And, you know, the S-word and the F-word are not generally considered … professional. So we wanted to get those out.”
‘Scrubbed’ Evidence Is Gone
Following Anderson’s questioning, Oracle’s Hurst had a couple of questions for Bornstein.
“You say you scrubbed the ‘J’s’ for trademark reasons?” she asked.
“That was the primary concern,” Bornstein said.
“We don’t know exactly what you scrubbed, because we don’t have it anymore, right?”
“Well, I don’t know what you have in evidence, but the way a source code works is that there usually is a historical record.”
“Did you bring here any examples today of what you had scrubbed out from the Android source code?” Hurst asked.
“I did not,” he answered.
Testimony continues May 17; the trial is expected to continue for at least a few more weeks.