Page Revisits ‘Making Enemies’ Over Android at Oracle Trial

  • Alphabet CEO confronted with 2005 e-mail on witness stand
  • Database maker trying to show Google knew it was stealing code

Google co-founder Larry Page was presented with a choice 11 years ago: whether to abandon the use of Java to build Android or march ahead “and defend our decision, perhaps making enemies along the way.”

“Obviously we didn’t do the first one,” Page testified Thursday as he played defense in a Oracle Corp.’s $9.3 billion lawsuit in which his company is accused of illegally lifting Java without a license. Oracle sued Google in 2010, shortly after acquiring Sun Microsystems, where Java was created.

Page, 43, was responding to an Oracle lawyer who was trying to show jurors that at the highest levels, Google was aware of the theft of its copyrighted code.

It was Google’s Android manager, Andy Rubin, who wrote about ”making enemies” in a 2005 e-mail and urged Page to impress upon a Sun executive, that “we love Sun.”

Now the chief executive officer of Google parent Alphabet Inc., Page stood by Google’s use of Java in his testimony, saying “we didn’t pay for free and open things.” He also said it was "established industry practice" to use the application programming interfaces, or APIs, at the heart of the lawsuit. Java’s APIs are indispensable shortcuts programmers use to work across software platforms.

E-Mail Issue

Oracle has shown the e-mail to jurors throughout two weeks of trial. The October 2005 message from Rubin to Page was sent two months after Google acquired Android. Rubin explains how Sun is concerned that Android’s preferred use of Java will make "licensing ’enforceability’ impossible." It also describes how critical Java is to Android, and the possibility of taking a license.

"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."

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 decision, set the stage for the current trial to determine whether the copying were allowed under the legal doctrine of fair use. If jurors find Google didn’t make fair use of Oracle’s copyrights, they will decide in a second phase of the trial whether the company is entitled to damages. The panel is scheduled to hear closing arguments and begin deliberations on May 23.

Battle of Words

Page spent most of his brief testimony Thursday engaged in the same battle of words over the APIs that has marked much of the trial. Page told Oracle’s lawyer Peter Bicks that Google was free to use the Java API "headers," also called libraries, or declaring code. Google relied on its own “implementation” of the code, Page said.

"For me, code is not declaring code," Page said.

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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