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4/30/2012
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Oracle Insists Google's Clean Room Was Dirty

As the two sides deliver their closing arguments in the trial's copyright phase, Google maintains it played by the book. Did Google's file cabinet prop win over the jury?

Jacobs argued that Google knew it needed a Java license and that it chose not to get one. And the evidence he highlighted in his summary supported that conclusion.

"Google had decided early on if Sun didn't want to work with us, Google was going to do Android anyway and defend its position, perhaps making enemies along the way," he said.

Then it was Google's turn.

Google's lead attorney Robert Van Nest began by asserting that the evidence presented in the courtroom will only support one verdict, to find in favor of Google. Right out of the gate, he mentioned former Sun CEO Jonathan Schwartz's endorsement of Android.

"[Schwartz] testified that he didn't see anything wrong with what Google was doing with Android," Van Nest said. "He knew Google didn't have a license from Sun."

Van Nest further asserted that Google didn't copy Sun's code.

"There was no infringement, there was no copying," said Van Nest. "Google played it by the book."

Van Nest then dismissed Jacobs' assertion that Google's clean room operation was unclean and borrowed from Sun's copyrighted APIs. He said, "They talk about a dirty clean room? Nine lines of code, out of 15 million."

He later returned to quantitative comparison, noting that Sun's copyrighted work as a whole, Java SE 5, consists of 2,800,000 lines of code. The Google code that shares the structure, sequence, and organization of Sun's code adds up to only 10,000 lines. That's less than half a percent, he said.

"There is no way in the world that those could be found substantially similar," he said. "…Oracle's whole strategy is to say this is so complicated none of us can understand it."

All those Google emails? Van Nest said those represented discussions about whether to license proprietary Sun property and that when those discussions broke down, Google proceeded to create Android on its own.

Van Nest relied heavily on a prop, the file cabinet that he has used to represent the way API organizational structure works. Oracle, he said, was trying to make these issues seem too complicated to deal with.

Rebutting Oracle's claim that the company has been harmed by Android, Van Nest asserted the opposite was true. "The only fact is Java business is up 10% year over year at Oracle," he said.

On the chance that the jury doesn't buy his argument that no copying occurred, Van Nest insisted that Android is transformative and thus qualifies as fair use. He also pushed back against Oracle's contention that the APIs at issue are creative works. These things are not an opera, book, a song or a poem, he said. They're something made to be functional.

Van Nest attacked Oracle's claim that Android had fragmented Java. Pointing to internal Sun email about issues with Java, he said, "Java fragmented itself. Android had nothing to do with it."

And he recalled email from Schwartz that undermines the premise of Oracle's case. "[Schwartz's] judgment was [Sun] didn't have grounds to sue," he said.

"The evidence makes clear as a bell … that this kind of use is fair use," Van Nest concluded.

Jacobs was then allowed to address the jury again in a final rebuttal. He attacked Van Nest's file cabinet analogy as inadequate and disputed Google's contention that Android has not harmed the economic viability of Java. He also raised the Apache Software Foundation's conclusion that Java intellectual property requires licensing in an effort to counter Van Nest assertion that the Java language is open.

Oracle's copyright infringement claim now goes to the jury, which could deliver a verdict as early as Monday afternoon. Given that the jury will have only an hour or so to deliberate before being excused for the day, a verdict is more likely to be returned on Tuesday.

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