Van Nest acknowledged that Android in its 15 million lines of code has nine lines of code from Java, but characterized the overlap as inconsequential and a mistake, according to San Jose Mercury News reporter Brandon Bailey.
Google's position is that it didn't need a Java license to create Android because the Java programming language and its APIs do not represent protectable intellectual property.
[ Learn more about the lawsuit. Read Oracle, Google Trial: Goliath Vs. Goliath. ]
Oracle disagrees. CEO Larry Ellison testified that Oracle wouldn't be able to invest $5 billion annually in research and development if people just copied its software, according to the Mercury News. He also acknowledged that Oracle had considered acquiring either Research In Motion or Palm to make its own smartphone, but ultimately decided against it.
Oracle laid out its case in documents published on Monday evening. Much of the company's evidence against Google consists of internal Google email debates about whether to license Java from Sun, purchased by Oracle in 2010 largely to extract value from the intellectual property associated with Java.
Among the evidence Oracle plans to present to the jury is a March 24, 2006 email from Google's head of Android, Andy Rubin, that appears to support Oracle's argument. "Java.lang api's [sic] are copyrighted," he wrote. There's also the now infamous 2010 email from Google engineer Tim Lindholm to Rubin: "We conclude that we need to negotiate a license for Java under the terms we need."
Yet, the case is not so clear cut. Oracle's initial patent and copyright claims have been winnowed since the company first filed its complaint. And the copyright claims depend on the extent to which computer languages and APIs can be copyrighted. Google argues that Oracle is claiming the right to ideas--not subject to copyright--rather than to fixed expressions of ideas--which are subject to copyright.
"The issue is to what degree is [Android's] Dalvik [virtual machine] a 'clean room' implementation of Java, which ultimately rests on how similar if not identical the code actually is," said Al Hilwa, IDC program director of applications development software, in an email. "The copyright part of the lawsuit is affected by how the jury feels about this question. This is why Oracle is driving that point hard. Of course there are also the patents, but that is a different argument. I think Oracle's goal is to get a judgment in its favor, not just to get some revenues that justify the R&D investment in Java, but also to force Google to license Java and bring the benefits of the Android innovation and ecosystem to the broader Java community."
David Long, an attorney at Washington, D.C., law firm Dow Lohnes, said in a phone interview that copyright issues are dominating the early part of the trial because a lot of the patent case got cut out. He said that a key issue will be what happens when you have critical intellectual property in a standard like Java that companies have elected to follow. "Is presence in a standards body enough to mean that you will allow people to take a license?" he asked.
Long sees a parallel between FRAND in the patent world--an obligation to offer a patent license on fair, reasonable, and non-discriminatory terms--and the resolution options Oracle and Google will have to consider. He questions whether Oracle can give away Java as a language but still require licensing for Java tools and API access. A possible outcome, he suggests, is that Oracle's ability to seek damages and to obtain injunctions may be limited.
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