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Alphabet Executive Chairman and former Google CEO Eric Schmidt revealed May 10 in court that his company was “under a great deal of pressure” in 2007 to develop the Android mobile operating system due to the release that year of Apple’s first iPhone, which led to Google’s use of parts of the Java programming language during Android’s development.
Schmidt was the first to testify on Day 2 of the continuation of the Oracle vs. Google copyright infringement case in federal district court in San Francisco. He is scheduled to return May 11 for more cross-examination. Alphabet is Google’s parent corporate entity.
Oracle, which acquired Java creator Sun Microsystems in 2010, contends that Android borrows heavily from the open-source Java language without obtaining licenses and is asking the court for $9.3 billion in copyright damages and lost revenue.
The dispute between the two IT giants is whether Google made “fair use” of these elements, called APIs, which are key components in the open-source Java programming language and used in all 3 billion Android mobile devices currently in use.
Google Started Using Java APIs Before Oracle Owned Them
A key fact that may play an important role in this case is that Google starting using Java APIs in the development of Android three years before Oracle took ownership of the ubiquitous programming language, which is used extensively throughout the Internet and is embedded in virtually every connected device in the world.
Sun open-sourced Java in 2006, making its elements—including its APIs—open for fair use by any developer on Earth, provided that those developers contribute back into the Java community value that they have gained from the technology.
Oracle tightened the licensing of Java after it took ownership in 2010; the question the court will have to answer is whether Google used the APIs within the “fair use” guidelines of the U.S. Copyright Act.
APIs are specifications that allow applications to communicate with each other. For example, when someone types into a document and then hits the “print” command, an API is being used that enables the word processor to talk to the printer driver, even though all the software was written by different people.
‘Fair Use Excuse’
In opening statements to the 10-member jury, Peter Bicks, an Orrick, Herrington & Sutcliffe partner representing Oracle, criticized Google’s central defense that it could use Java without a license or compensating Oracle under the “fair use” exception to federal copyright protections.
“I call this case the ‘fair use excuse,'” Bicks told the jury.
Oracle’s long-running legal challenge to Google rests on evidence that Google, in a rush to enter the mobile phone market, built its Android operating system by using Java technology in violation of federal copyright law. The result, Bicks contended in his opening remarks, has given Google a $42 billion revenue windfall that is the fruit of Oracle-owned innovation and which has come at Oracle’s expense in the marketplace.
“Google made a deliberate business decision not to take a license and to copy and use Oracle’s valuable software illegally,” Bicks said. “Why? Huge profits.”
Google’s “fair use” defense, the basis of this latest trial between the two companies over a seven-year span, is the central target of Oracle’s evidence, based on Bicks’ opening statement. Google has the legal burden of persuading the jury that its copying of 37 Java core library API packages during the advent of Android amounted to fair use.
Time ‘Was Not on Google’s Side’
In addressing the jury, Bicks emphasized that Google’s behind-the-scenes effort to accelerate development of Android with the use of the Java API packages was fueled by worries about being left out of the emerging race to capture the mobile phone market. Time was not on Google’s side, as Bicks demonstrated with internal emails suggesting that Google’s only way to speed up Android’s release was to rely on what was then Sun Microsystems’ Java programs.
The court released a list of witnesses who will be making appearances in person or by video during the trial. They include former Sun CEO Jonathan Schwartz; Oracle co-founder and CTO Larry Ellison; co-founder and former CEO Andy Rubin of Android, Inc.; IBM Java CTO John Duimovich; Josh Bloch, former Sun Java libraries and language architect and former chief Java architect at Google; former Sun evangelist and blogger Simon Phipps; former Sun Distinguished Engineer Rick Cattell; Donald Smith, Senior Director of Product Management at Oracle Corp.; Google Android developer Dan Bornstein; and Java developer Andrew Hall.