oracle vs google second half

8/16/2019 Oracle vs Google Second Half

1/76

77

4/20/09

“Android is rippingoff” Oracle’s IP “

and getting away

with it”(TX 9201)

11/16/07“This is a really important

and legal issue” (TX 382)

1/29/09

“…buying the full rights to

Java… solve all of these

lawsuits” (TX 406)

8/6/10

Alternatives “all suck”…“we need to negotiate

a license”(TX 10)

5/30/08

“These restrictions prevent Apache Harmony

from independently implementing Java SE…not to mention Android (though that’s

water under the bridge at this point)” (TX 405)

4/17/08

“the copyright on the API is real and

hard to ignore.” (TX 5046)

3/24/08

“don’t demonstrate to

any Sun employees or

lawyers”(TX 29)

11/7/07

“Scrub out a few more J’s” (TX 26)

3/28/07

“We are beyond out of time”(TX 5114)

8/16/06

"we are

building a

java basedsystem: that

decision is

final”(TX 303)

6/1/06

Own APIs were

“half -ass at best”(TX 215)

3/24/06

APIs “are copyrighted”(TX 18)

Google Acted in Bad Faith

10/11/05

“We’ll pay Sun for

the license”

“Do Java anyway…perhaps making

enemies along

the way.”(TX 7)

2 0 0 5 2 0 0 6 2 0 0 7 2 0 0 8 2 0 0 9 2 0 1 0

11/5/2007Schwartz Blog

0 8

0 0 9

2 0 1

2

10/08

AndroidLaunch Date

8/12/10

Oracle suesGoogle


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78

The Two Faces of Jonathan Schwartz

PUBLIC11/5/07

SC

HWARTZ BLOG

TX 2536

“I just wanted to add

my voice

to the chorus

of others

from

Sun

in

offering

my heartfelt

congratulations to Google

on the

announcement of

theirnew

Java/Linux phone

platform,

Android

. Congratulations!”

PRIVATE

3/8/07

“The Google thing

is

really a

pain. They

are

immune

to

copyright

laws

, good

citizenship,they

don’t share

.”

TX 563

1


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79


“I just wanted to add my voice

to the chorus of others from

Sun in offering

to Google

on the announcement of theirnew Java/Linux phone platform,

Android. Congratulations!”

PRIVATE

11/05/07

“They’re claiming

developers

are undeserved

–

which is

crap.”

TX 2353

1


4/76

80


PRIVATE

11/07/07

“I

have no [sic] clue what

they’re up

to

–

my sense is

they’re

playing fast

and

loose with licensing

terms,and

they’re going to start

pissing people off…”

TX 2368



Sun in offering

to Google



1


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81


PRIVATE

3/26/08

“They also take Java for

Android, without

attribution

or

contribution. This is why

I

love scroogle”

TX 1056



Sun in offering

to Google



1


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82


PRIVATE

4/20/09

“[T]he battles with…

Google Android.”

TX 2362



Sun in offering

to Google



1


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8/7684

Google Knew Copying Java API Packages Was Wrong

ERIC SCHMIDTExecutive Chairman

A. Yes.

Q. Now, t her e came a t i me when

Googl e was suf f i ci ent l y wor r i edabout bei ng sued t hat i t t houghtabout buyi ng al l t he r i ght s t o

J ava; cor r ect , si r ?

Tr. at 465:2-15

1


9/7685

The Factors Overwhelmingly Favor Oracle

1FACTOR


10/7686


1FACTOR


11/76

Fair Use Factors

2 The nature of the copyrighted work;

Jury Instruction 29 at p. 15

JUDGE ALSUP’S INSTRUCTION

“It is undisputed that the declaring code and the

structure, sequence, and organization of the 37 API

packages at issue were sufficiently creative and originalto qualify for copyright protection.”

87


12/7688

MARK REINHOLDChief Architect of

Java Platform Group

API Design Is “Intensely Creative”

Tr. at 1459:19-25

Q. And you testified you’ve been

wor ki ng f or 20 year s i n t hi s f i el d

desi gni ng API s. Do you consi der t hepr ocess of desi gni ng API s t o becreat i ve?

A. Oh, it’s intensively creative.

That’s why I like the Harry Potter

anal ogy so much. I t r eal l y i s a l otl i ke wr i t i ng a book. You have t okeep a l ot of st uf f i n your head,and t he end r esul t i s - - i s ver y,ver y r i ch and compl ex.

2


13/7689

The Java API Package Design Is Like a Book Series

The Journey from PlatformNine and Three-quarters

_____________________________________

Harry’s last month with the Dursleys wasn’t fun.True, Dudley was now so scared of Harry hewouldn't stay in the same room, while AuntPetunia and Uncle Vernon didn't shut Harry inhis cupboard, force him to do anything, or shoutat him -- in fact, they didn't speak to him at all.Half terrified, half furious, they acted as thoughany chair with Harry in it were empty. Althoughthis was an improvement in many ways, it did

become a bit depressing after a while.

2


14/7690

Fair Use Factors

2 The nature of the copyrighted work;


“When there are many possible ways to structure,

sequence, and organize a program, the particular

way chosen for a copyrighted program and

individual lines of declaring code may be (or maynot be) highly creative.”


15/7691


Java Platform Group

Declaring Code is “Extremely Expressive”

Tr. at 1454:24-1455:3

2

Q. I n what way i s decl ar i ng code

expr essi ve, i f at al l ,Dr . Rei nhol d?

A. Decl ar i ng code i s ext r emel yexpr essi ve. Ther e ar e an i nf i ni t enumber of cr eat i ve choi cesnecessar y t o desi gn i t wel l .


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How many packages should there be?

Reinhold: Infinite Number of Creative Choices

Which classes do we want?How should our classes and

interfaces relate to each other?

Is one class a subclass of

this one or is it a subclass of

that one over there?Does a class implement

some interface in this API?

How do the

methods relate?

For every method, what kindsof inputs does it take?

What kind of outputs

does it produce?What kind of errors

can it report?

Tr. at 1460:1-22 (Reinhold) 92


17/7693

The Design of Java API Packages Is Creative

TX 877 93

2

JOSHUA BLOCHFormer Chief Java Architect


18/7694


TX 624 at 47

2



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Jury Instruction 28 at p 15

JUDGE ALSUP’S INSTRUCTION:

“Creative writing and expression lie at the very heart of

copyright protection”

2

Tr. at 1004:21-24

Q. And are some APIs harder to write than others?

A. Because of the complexity of figuring out how best to

express what it is that the programmer wants done.

Some tasks are more complicated than others.

95



20/7696

DOUG SCHMIDTOracle Expert

Tr. at 1546:19-21

The Java API Packages Are Creative

2

The onl y t hi ng t hat made i t l ookt he way i t di d was t he degr ee ofcr eat i vi t y and exper i ence of t hedevel oper s who wr ot e t hose cl asses.


21/7697

Designing Java API Packages is a Creative Activity

Depo. at 14:3-6Bob Lee, Android Core Library Lead

2


22/7698


Java Platform Group

Placeholder – Reinhold Labels Callout

2

Tr. at 1461:24 – 1462:5

Q.Do you think it’s accurate to describe the

J ava API s as l abel s?

A.As labels? I think that’s laughably

si mpl i st i c.

Q.Why do you say t hat?

A.Wel l , a l abel i s j ust a name. I f al l wehad were names, then we wouldn’t need any

of t he – of t he st r uct ur e and or gani zat i ont hat you act ual l y f i nd i n t he APIpackages.


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99


2FACTOR

1FACTOR


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100


2FACTOR

1

FACTOR


25/76

Factor 3: The Java API Packages Are Important

3 The amount and substantiality of the portion used in relationto the copyrighted work as a whole; and

“The third statutory factor is the amount and substantiality of the portion used in relationship to the copyrighted work as a whole, which

concerns how much of the overall copyrighted work was used by the

accused infringer.”

“Even a small part may be qualitatively the most important part of

a work.”

Jury Instruction 33 at p. 17 101


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102

The Total Amount of Android Code Is Not Relevant

GOOGLE’S ARGUMENT

“1/10 OF 1% OF ANDROID CODE”

3

JUDGE ALSUP’S INSTRUCTION

“For this factor, the total number of lines in Android is irrelevant.”


102


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104

Schmidt: Copied Java APIs Were Substantial

Tr. at 1548:1-5

The f i nal poi nt I woul d l i ket o make i s t hat t he por t i onsof t he J ava API s t hatwer e copi ed ar e subst ant i al .

DOUG SCHMIDTOracle Expert

3


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105

Reinhold: Google’s Copying Was Substantial

Tr. at 1456:23 - 1457:2


Java Platform Group

You coul d t hi nk of t hat – i n t he Harry

Potter anal ogy, i t woul d be t he t i t l esof t he books, t he headi ngs on eachchapt er , t he t opi c sent ences of ever ypar agr aph, but not j ust t hat .

It’s also all of the connections drawnbet ween t hose el ement s over t i me.

3


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106

If it wasn’t important,

why did Google copy it?

If it wasn’t important,

why didn’t Google write their

own declaring code?


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107

Importance: Using Java APIs Save“a pretty crazy amount of time”

TX 13 at 1

3

G l ’ A i P H I


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108

Google’s Actions Prove How Importantthe Java API Packages Were

3

G l ’ A i P h J API P k


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109

Google’s Actions Prove the Java API PackagesWere Important to the Market

What Google Privately Tells Prospective Partners

TX 387 at 7, 9, 34, 40, 50, 60, 61, 69, 74; TX 158 at 10; TX 5586 at 2, 7

3


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OWEN ASTRACHANGoogle Expert

Tr. at 1267:25 – 1268:4

Q. The J ava pr ogr ammi ng l anguage i s di f f erentf r om t he API s; i s t hat cor r ect ?

A. Yes, I t hi nk t he pr ogr ammi ng l anguage andthe APIs are used together, but they’re

different. Yes. That’s reasonable, yes.


Java Platform Group

Tr. at 1462:25 - 1463:2

Q.Ar e t he J ava API s par t of t he J avapr ogrammi ng l anguage?

A.No, they’re not. The APIs – t he API s and

t he l anguage ar e di st i nct par t s of t he J ava pl at f or m.

Language Does Not Equal APIs

3

110


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111

Language Does Not Equal APIs

Urs HölzleSenior Vice President, Google

3


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113


2FACTOR

3FACTOR

1FACTOR

A d id H d th P t ti l Li i g M k t


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Android Harmed the Potential Licensing Marketof Both Java SE and ME

“The fourth and final factor is the effect of the accusedinfringer’s use on the potential market for or value of the

copyrighted work”

“The term ‘potential market for or value of’ refers to thevalue of the entire copyrighted work itself and licensing

opportunities for the copyrighted work and its derivatives”

4 The effect of the use upon the potential market for or valueof the copyrighted work.

Jury Instructions 34, 35 at p. 18 114


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J ava ME i s t he J ava Mi cr o Edi t i on Pl at f or m. You can t hi nk of i t as J ava SE’s little sibling.

Tr. at 1449:6-7MARK REINHOLDChief Java Architect


ALAN BRENNERSr VP, Sun Client Systems Grp

Tr. at 1668:21-22

We sel ected cl asses f r om SE. J ava ME was essent i al l y der i ved

f r om J ava SE

Tr. at 1273:6-8

Q. I s i t t r ue that most of J ava ME i s a subset of somet hi ng i n SE?

A. I t hi nk t hat i s r easonabl e.

115

Java ME Is a Derivative Work of Java SE

4

Tr. at 1438:2-7

So J ava ME i s a subset of J ava SE, a st andard subset t hat al l owspeopl e t o have wr i t e once, r un anywhere on smal l er devi ces.

EDWARD SCREVENChief Corp. Architect


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By 2006 Phones Had Evolved and Java SE


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Havi ng a smar t phone t hat you wal k ar ound wi t h

t he power of what used t o be a ser ver has ki nd ofchanged t he l andscape of how we l i ve wi t h our di gi t aldevi ces.


Tr. at 1932:8-10

ALAN BRENNERSr VP, Sun ClientSystems Group

Tr. at 1670:9-13

Over t i me, J ava ME absor bed mor e and mor e of t he J avaSE f unct i onal i t y. And t hat became possi bl e becausedevi ces wer e r api dl y i ncr easi ng i n CPU capabi l i t y,comput at i onal capabi l i t y, memor y, and bat t er y, t hat

al l owed us t o t ake on more of t he scope of SE.

By 2006, Phones Had Evolved and Java SEWas Licensed for and Used in Smartphones

117

4


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43/76

Sun Was Well Positioned to Maintain


44/76

120

Sun Was Well Positioned to MaintainIts Strong Market Share (Pre-Android)

TX 9133.1 at 4

4


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121

SAFRA CATZChief Executive Officer

Android Has Harmed Oracle

Tr. at 1355:8-12

Q. I n t he cour se of your busi nessat Or acl e, have you l ear ned t o

what ext ent , i f any, Andr oi d hashad an ef f ect on Sun and Or acl e?

A. Wel l , Andr oi d' s had a ver y

negat i ve ef f ect on Sun Or acl ei n a number of ways.

4


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122



Tr. at 1355:14-18

First, it’s – it’s basically

f or ked t he J ava whol e pr i nci pl e,

t he whol e J ava communi t y has beenf or ked, meani ng spl i t i nt o t wobecause t he whol e i dea of J ava, asI ment i oned yest er day, i s wr i t eonce, run on any platform. That’s

r eal l y t he – t he bot t om l i ne.

4


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123

Google “locks programmers into Android”

EDWARD

SCREVENChief Corporate

Architect

Q. What , i f anyt hi ng, i s yourunder st andi ng of t he consequence

of Android’s failure to be ani ndependent i mpl ement at i on asdef i ned by t he spec l i cense?

A. I t l ocks pr ogr ammer s i nt o Andr oi d.

It means that they can’t – t hei rapplications can’t run in other

envi r onment s, ot her t han Andr oi d.

Tr. at 1440:25-1441:2

4


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124

Google’s Control of the Android Platform

TX 190

4


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125


Tr. at 1356:3-9

Secondl y, many of t hose cust omerst hat we used t o l i cense t o t ake a

copy, t o t ake a l i censed copy l i keSamsung or ZTE or Mot or ol a, j ustdi f f er ent l i censees, Bl ackBer r y, et c. ,t hey don' t need a l i cense - - t heydon' t t ake a l i cense f r om us anymor ebecause t hey use Andr oi d, whi ch i s

f r ee, and t hey end up usi ng Andr oi di nst ead of act ual l y payi ng us f or acopy of - - of our sof t war e.

4


Android’s Effect on Samsung License:


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126

Android s Effect on Samsung License:$40 Million Down to $1 Million

Tr. at 1359:5-9

Q. And how, i f at al l , di d t hat af f ectt he pr of i t abi l i t y of t he J ava

busi ness?

A. I t had a ver y negat i ve i mpact .Compani es l i ke Samsung t hat woul dl i cense a $40 mi l l i on cont r act wer e

down t o – woul d be l i censi nga mi l l i on dol l ar s.

4



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127

Android Was “Devastating”

Tr. at 1639: 23-25

4

Q. Al l r i ght . Can you t el l us,si r , i n one wor d t he i mpact of

Andr oi d on J ava?

A. I t was devast at i ng.

NEAL CIVJANFormer VP Worldwide

OEM Software Sales


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128


OEM Software Sales

Android Had a “Massive Impact Very Quickly”

4

Tr. at 1632: 6-15

Q. And can you descr i be t o our j ur yt he i mpact t hat Andr oi d had on yourl i censi ng busi ness.

A. Wel l , Andr oi d was ver y – came on ver yqui ckl y, ver y st r ong. I t was f r ee.We wer e l i censi ng f or r oyal t i es, andi t was bei ng adopt ed i n t erms of new

desi gn wi ns f or phones acr oss t heboar d and di spl aci ng J ava on t hosephones and havi ng a massi ve i mpactver y qui ckl y.

C Aff d b A d id


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129

Customers Affected by Android

Tr. at 1635:5-15

MASSIVE LOST REVENUEPROJECTED OVER A THREE-YEAR PERIOD

50 to 60%OF MOBILE PHONES USING

ANDROID INSTEAD OF JAVA

4


OEM Software Sales

A d id “Hij k d” J


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130

Android “Hijacked” Java

Q. J ust t el l us t he i mpact of Andr oi don t he moral e of your t eam.

A. I t was devast at i ng t o me per sonal l yand my t eam because we put our hear tand soul i nt o maki ng t hi s assuccessf ul – I mean, you guys haveprobably all heard of Java and it’s

a huge success st or y i n t he

i ndust r y, and i t was hi j acked. Youknow, t hey t ook our t echnol ogy andt hey gave i t away f or f r ee and t heyt ook our cust omer s, and i t wasdevast at i ng.

4

Tr. at 1641:5-17


OEM Software Sales

A d id C d P i E i f O l


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131

Android Caused Price Erosion for Oracle

Tr. at 1359:19-24; 1360:9-15

Q. What was t he si t uat i on wi t h respect t o Amazonl i censi ng?

A. So f or Amazon f or t he Ki ndl e – it’s a reader.For t he Ki ndl e Reader had used J ava t o creat e

t he Ki ndl e Reader f or many years. And t hen theyhad anot her pr oduct cal l ed t he Ki ndl e Fi r e andthat one they used Android so they didn’t

l i cense J ava at t hat t i me.

Q. And what happened?

A. Wel l , i n or der t o compete wi t h t hem, we endedup gi vi ng t hem l i ke a 97 and a hal f per centdi scount f or t he Paper whi t e. So i nst ead of whatwe woul d have hi st or i cal l y char ged t hem,because our compet i t i on was f r ee, t hey – t hey –we had t o of f er t hem a 97 pl us basi cal l y coupl ecent s on t he col l ar pr i ce f r om l i st pr i ce.

4



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Java-Based Android vs.


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133

10%

20%

30%

40%

50%

60%

70%

80%

90%

2007 2008 2009 2012 2013 2014 2015

100%

6/2008

First

milestone

8/2010

Google: “Alternatives All Suck”

2010 2011

1/2010

Oracle

acquires Sun

Java Based Android vs.Licensed Java Smartphone Market Share

4


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A d id Cl d th D t th S t h M k t


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135

Android Closed the Door to the Smartphone Market

4

Depo Tr. at 135:23 - 136:4

We never made an ef f or t t o ent er

t he smar t phone mar ket . We anal yzed

whet her we had a r easonabl el i kel i hood of success i f we ent er ed

t he smar t phone market and deci ded,

you know, t hat Andr oi d had al r eady -

t her e al r eady was a J ava smar t phone

wi t h a l ot of moment um, and,

t her ef or e, we coul d not ent er t he

smar t phone mar ket .

LARRY ELLISONChairman of the Board



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136


4

Depo. at 163:3-7 (1/14/2016)

HENRIK STAHLVP Product Management

Those deci si ons wer e based on

t he si mpl e obser vat i on t hatwe didn’t think there was any

mar ket l ef t af t er Andr oi dappeared and got domi nance, and

no i nvest ment s have been madesince, as far as I’m aware.


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137

OPEN SOURCE OPEN SEASON

Andy Rubin

Q. But you looked at it, you understood it,

and you decided the OpenJDK license

was unacceptable to you; true?

A. I believe so, yes.

Tr. at 844:19-21

OpenJDK License Not a Viable Alternative Back Then


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TX 9211, Tr. 1010:13

Using OpenJDK in Android was a “verboten topic”

JOSHUA BLOCHGoogle Chief Java Architect

OpenJDK License Not a Viable Alternative Back Then

138

4

BRIAN SWETLANDGoogle Sr. Staff Engineer

Usi ng t he API l i br ar i es woul d be “i ncompat i bl ewi t h our pol i cy of not usi ng GPL f or cor elibraries.”

Depo. at 139:1-2

DAN BORNSTEINGoogle Chief

Software Engineer

The l i censi ng t hat Sun i s usi ng f or bot hSE and ME are incompatible with Android’s needs.

TX 5048

Civjan: OpenJDK Didn’t Harm Business


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139

Civjan: OpenJDK Didn t Harm Business

Tr. at 1649:2-6

4


OEM Software Sales

A. It didn’t really impact the business.

Q. Now, as – as Sun and then Oracle’s

Vi ce Pr esi dent of wor l dwi de sal es,you knew t hat openi ng sour ci ng J avat hr ough OpenJ DK coul d r educe t hecompany’s competitive advantage from

licensing the software, didn’t you?

Google Executives Admit Harm From


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140

Q. And t he same woul d appl y t o Or acl e. Youwoul d agr ee wi t h me t hat any i ncr ease i n t he

unauthorized use of Oracle’s intellectual

pr oper t y coul d make i t more expensi ve t o dobusiness and harm Oracle’s results. Would you

agr ee wi t h t hat st at ement ?

Tr. at 1828:21–1829:1

A.I mean, yes, i t coul d make i t mor e expensi ve.

LARRY PAGECEO

140

ERIC SCHMIDTExecutive Chairman A. Yes.

Tr. at 392:18-21

Q. Any i ncr ease i n t he unaut hor i zed use of youri nt el l ect ual pr oper t y coul d make i t mor eexpensi ve t o do busi ness and har m your oper at i ngr esul t s; cor r ect ?

gUnauthorized Copying

4

A “Free” License Still Has Restrictions


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141

A Free License Still Has Restrictions

4

Tr. at 420:12-15


A. Ther e i s a l i cense t hat al l ows yout o use i t wi t hout havi ng t o pay f or

i t .

Q. So when you don’t pay for it, canwe agree that’s for free?

A. Subj ect t o t he t er ms of t hel i cense, yes.

Google Protects Its Own Intellectual Property


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142

Google Protects Its Own Intellectual Property

v

TX 5250

v

4

v

A “Free” License Still Has Restrictions


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143

A Free License Still Has Restrictions

4

Q. And i t says her e t hat t he Adwor ds APIand AdWor ds speci f i cat i ons – do yousee t hose words?

Q. And i t says t hose ar e t he i nt el l ect ualpr oper t y and pr opr i et ar y i nf or mat i onof Googl e. Do you see t hat ?

A. I do.

A. I do.

A. We do.

Q. And you do expect peopl e wi t h t hesecont r act s t o honor t hem, do you not ?


Tr. at 410:10-18


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Factor 4: Google’s Copying of the Java API Packages


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Caused Actual and Potential Harm to Oracle

4 The effect of the use upon the potential market for or valueof the copyrighted work.

Jury Instruction 34 at p. 18 145

“This factor considers not only the extent of any market

harm caused by the accused infringer’s actions but also

whether unrestricted and widespread use of the copyrighted

materials of the sort engaged in by the accused infringer

would result in a substantially adverse impact on the potentialmarket for the copyrighted work.”

Other Oracle Markets at Risk


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Other Oracle Markets at Risk

GPS SYSTEMS

MOBILE PHONES

TABLETS/E-READERS

AUTOMOTIVE

INTERNET OF THINGS

VOICE OVER INTERNET

PROTOCOL (VoIP)

HOME ENTERTAINMENT

(Televisions/Set-top boxes/

Blu-ray/Gaming)

PRINTERS

HOUSEHOLD

APPLIANCES

CAMERAS

PAYMENT TERMINALS

& POINT OF SALES

SYSTEMS

WEARABLES

WEB BROWSERS

MEDIA PLAYERS(Including set-top boxes)

GAME CONSOLESVENDING MACHINES

146

4

If Everyone Did What Google Did


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147

“We Wouldn’t Have a Business”

Tr. at 1362:14-18; 1363:1-6

Q. Ms. Cat z, one of t he consi der at i ons t hatt he j udge has i nst r uct ed t he j ur y i sr el evant t o f ai r use i s what woul d happen

i f ever yone coul d do what Googl e i sdoi ng. What ar e your t hought s wi t hrespect to Oracle’s business, if that

were the case?

A. I f ever yone t ook a copy of our sof t war e

wi t hout act ual l y l i censi ng i t , wewouldn’t have a business any more.

We simply wouldn’t be able to afford to

invest…

4




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2FACTOR

3FACTOR

4FACTOR

1FACTOR



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149


2FACTOR

3FACTOR

4FACTOR

1FACTOR

What This Case Is About


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150

What This Case Is About

ecisions

onsequences

Verdict Form


75/76

151

Verdict Form


76/76

oracle vs google second half

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