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?

Thomas Claburn, Editor at Large, Enterprise Mobility

April 30, 2012

6 Min Read

Oracle v. Google: Tour The Evidence

Oracle v. Google: Tour The Evidence

Oracle v. Google: Tour The Evidence(click image for larger view and for slideshow)

In the San Francisco courtroom where Oracle has been arguing for the past two weeks that Google's Android operating system infringed Oracle's Java copyrights and patents, it was quieter than usual on Monday. The two sides were ready to deliver their closing arguments in the copyright phase of the trial. All they needed were a judge and jury.

Judge William Alsup arrived promptly and proceeded to address the objections to the judge's proposed jury instructions that the two sides filed on Friday. He denied most of the objections.

The judge then conferred with a juror and the lead attorneys from both sides. The juror wanted to be excused from the case because she claimed attendance presented a personal hardship. The juror balked from discussing her issues with the judge in open court. After a sidebar conference, she returned to the jury room without comment from the judge. Presumably, the judge persuaded her to remain.

[ Oracle, Google Trial: Who Wins Round One? ]

The judge then thanked the public and the press for their silence during the proceedings and asked for continued silence as he read the jury instructions and as the attorneys delivered their closing arguments.

Silence is important because, he said, "This is the one moment that the jury learns the law."

Oracle attorney Michael Jacobs began his summation by thanking the jury for serving and by acknowledging "the evidence has sometimes been complex, technical."

The basic question, he said, is did somebody use another company's property without permission. And Jacobs' contention is that it's vital to protect such property.

"Who would sit down and write a good book or compose a great song or write a great API if someone could just rip it off?" he said.

Referring to Google's so-called clean room effort to replicate Java's APIs in Android, Jacobs said, "The clean room was very dirty."

Jacobs argued that Google wanted Sun to throw away its standard Java license. Google SVP Andy Rubin acknowledged, he said, "that what he was asking Sun to do was change its business model."

Jacobs insisted that the trial so far has been mostly about Google's excuses. And he did his best to dismiss one such excuse, a blog post by former Sun CEO Jonathan Schwartz that endorsed Google's Android. "A blog post is not permission; a blog post is not a license," he said.

Jacobs proceeded to address whether Google's use of the structure, sequence, and organization of the 37 Java APIs at issue qualified for the fair use defense against copyright infringement. Whether infringement qualifies for fair use depends on four factors: the purpose of the copying; whether the copied work is creative; quantity and quality of the copying; and the effect on the market for the original work.

Jacobs cited examples of fair use: criticism, comment, news reporting, teaching, scholarship, and research.

"What Google did was take the APIs … from our code and put it in their code," he said. "What Google did doesn't even fit within the spirit of those examples." 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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About the Author(s)

Thomas Claburn

Editor at Large, Enterprise Mobility

Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful master's degree in film production. He wrote the original treatment for 3DO's Killing Time, a short story that appeared in On Spec, and the screenplay for an independent film called The Hanged Man, which he would later direct. He's the author of a science fiction novel, Reflecting Fires, and a sadly neglected blog, Lot 49. His iPhone game, Blocfall, is available through the iTunes App Store. His wife is a talented jazz singer; he does not sing, which is for the best.

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