Oracle Sued Google Over a Hamburger, Java-Android Jury Told

  • Google lawyer says in copyright trial it’s garnish that counts
  • Oracle claims it’s owed $8.8 billion for code used in Android

Oracle Corp. sued Google over the equivalent of a hamburger.

That’s a Google lawyer’s message to jurors at the companies’ copyright infringement trial. Robert Van Nest showed the jury a menu with only “hamburger” written on it and likened it to the packages, or APIs, of Java programming code Oracle claims Google stole to build its Android operating system.

“The API is hamburger there, it’s the menu,” Van Nest said Monday in his closing arguments at a trial that started two weeks ago. The exhibit also showed two burgers, one simple and the other garnished. The message: putting the word “burger” on a menu isn’t unique -- it’s what’s behind the word, how you build your burger, that counts.

Van Nest backed up his theme by reminding jurors in San Francisco federal court that Sun Microsystems, which developed Java, blessed and appreciated Google’s use of the “free and open” code. He cited testimony from two key witnesses, Eric Schmidt, the Alphabet Inc. chairman who served in the 1990s as Sun’s chief technology officer, and former Sun Chief Executive Officer Jonathan Schwartz.

Having adopted the hamburger comparison Schwartz used in his testimony, Van Nest quoted the ex-Sun CEO saying “absolutely, yes,” when asked whether Sun marketed not just Java, but specifically the APIs as free and open.

“It’s fair to say that the testimony of these folks was very clear and very consistent, and largely unchallenged by Oracle,” Van Nest said.

Android’s Success

Oracle, which acquired Sun in 2010 and sued Google the same year, is seeking damages of as much as $9 billion based on claims Android runs on critical components of illegally copied Java code. Google has reaped $21 billion in profit from the operating system used in 80 percent of the world’s mobile devices, Oracle says.

Besides the potential for one of the largest jury verdicts in U.S. history, a win for Oracle could change how software is protected and licensed.

U.S. District Judge William Alsup has told the jury it’s already been established that the Internet giant infringed Oracle’s copyrights on the code. That finding, from a 2012 jury verdict and appeals court ruling, set the stage for the current trial over whether the copying was justified under the legal doctrine of fair use. If jurors find Google didn’t make fair use of the copyrights, they will decide in a second phase whether Oracle is entitled to damages.

Witnesses for Google, including Schmidt, testified the company didn’t need to license the Java APIs, which stand for application programming interfaces, to build Android. The Java APIs at the heart of the lawsuit are shortcuts programmers use to work across software platforms.

Licensing Negotiations

Oracle lawyers scored points in the trial by revealing e-mails that showed Google executives and engineers expressed concern as they built Android that they needed and didn’t get a license for Java. Some of the evidence shows Google was worried that failed licensing negotiations would trigger a lawsuit.

Oracle lawyer Peter Bicks reminded jurors that Google “has the burden of proof” to show its fair use of the code, and loses if it hasn’t. He pointed to exhibits shown at trial that he said contradict Google’s witnesses and prove that the search engine company, while fully aware of the copyrights, was under competitive pressure to release Android and copied the code to get its operating system to market.

“I’m going to show you a mountain of evidence,” Bicks said in his closing argument.

He reminded the jury of a 2005 e-mail from Google’s Android manager, Andy Rubin, to co-founder Larry Page laying out the consequences if the company were to move forward without a license from Sun.

‘Two Options’

"If Sun doesn’t want to work with us, we have two options," Rubin wrote, adding that the first choice is "abandon our work" and adopt an inferior programming language or "2) Do Java anyway and defend our decision, perhaps making enemies along the way."

Bicks asked why a company with Google’s financial and engineering resources would copy coding if it wasn’t important to the Android project.

“Why didn’t Google just write their own declaring code?” Bicks said, referring to the APIs. “You bring common sense to this case.”

The case is Oracle America Inc. v. Google Inc., 10-cv-03561, U.S. District Court, Northern District of California (San Francisco).

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