Google Inc. (GOOG:US) knew as far back as 2005 that it had to license the Java programming language to develop Android software and didn’t strike a deal because it didn’t want to share portions of the mobile phone operating system, an Oracle Corp. (ORCL:US) attorney told a federal jury.
Michael Jacobs, the lawyer for the Redwood City-based software maker, said today that using Oracle-owned Java ensured that Google’s Android software would be quickly embraced by programmers who write applications for smartphones and provide the search engine company with a commercial advantage.
Google’s mistake was that it didn’t take out a license allowing it to use Java and requiring it to share parts of Android, Jacobs said in his opening statements at Oracle’s trial against Google in San Francisco. Oracle is seeking $1 billion in damages.
“You can’t just step on someone’s intellectual property because you have a good business reason for it,” Jacobs said. “Google makes a lot of money from Android, and a portion of that money is Oracle’s.”
Oracle alleges that Google infringed copyrights and patents for Java. The two-month trial that started today will include testimony from the companies’ chief executive officers, Larry Ellison and Larry Page, as well as damages experts appointed by both sides and the presiding judge.
Google’s top executives knew they needed a license for Java, a so-called “open source” language that works across different computer systems, Jacobs said.
“My proposal is that we take a license,” Google senior vice president Andy Rubin said in an October 2005 e-mail to Page shown to the jury. Rubin said Google would have to pay for the license.
Google engineer Tim Lindholm said in a February 2006 e-mail shown today that Google was in negotiations for a Java license. Yet Google didn’t agree to the terms of a type of license that allows companies to use Java code and write new code on top of it that “you have to give back to the open source community,” Jacobs said.
“You can’t keep it for yourself,” he said. “They broke the basic rules of the Java programming community.”
In another e-mail that Jacobs showed to the jury, one Google executive tells another to “scrub out a few more Js” from Android code. The J stood for Java, Jacobs said.
Rubin said in an April 2011 videotaped deposition shown to the jury that Google doesn’t make money off Android. Jacobs showed the jury a transcript from an October earnings call in which Google Chairman Eric Schmidt said “people who use Android search twice as much as everything else.”
“Not only is there more searches, and there’s more ads, but it’s also more lucrative,” Schmidt said. “So, on that basis alone, Android is hugely profitable.”
Oracle, the largest maker of database software, is also seeking a court order blocking Google from distributing Android, now running on more than 300 million devices, unless it takes a license.
The first phase of the trial will deal with allegations of copyright infringement. Phase two will address patent claims. If jurors find that Oracle’s intellectual property was infringed, they will decide in a third phase whether the company is entitled to damages.
Google, based in Mountain View, California, denies infringing Oracle’s patents, saying the technology it used, called application programming interfaces, or APIs, isn’t covered by copyright and that its use of parts of the Java platform was fair and legal.
“Computer programming languages are not copyrightable, and neither are Oracle’s APIs,” Google’s attorney Robert Van Nest said in a court filing. “Oracle accuses Google of infringement for doing what the Oracle API specifications describe. That is a classic attempt to improperly assert copyright over an idea rather than expression.”
Google’s attorneys will make their opening statements tomorrow.
Settlement talks held April 2 and in September failed to resolve the lawsuit.
Java, developed by Sun Microsystems in the mid-1990s, lets developers write programs that work across different operating systems and on a variety of computers. A key building block of the World Wide Web, it is widely used in business applications. The software also runs on billions of mobile devices. Oracle acquired Sun in 2010 for $7.4 billion.
Google rejected an offer by Sun to accept $100 million in royalties to use Java in Android’s development, Van Nest said last year at a hearing in the case. The proposed three-year deal in 2006 was for a technology partnership to build Android jointly, rather than for just a patent license, he said.
Google relies on Android, the most popular U.S. smartphone operating system, to compete with Apple Inc. (AAPL:US) in the mobile-phone market and lessen its dependence on traditional Web-search advertising.
Oracle also alleged that Google infringed the two Java patents in the case that a court-appointed expert estimated are worth $2.8 million in damages.
In its original lawsuit, filed in 2010, Oracle claimed Google was infringing seven patents. All but two have been removed from the case. Google won a ruling last year throwing out Oracle’s $6.1 billion damage estimate. U.S. District Judge William Alsup, who is presiding over the case, ruled that copyright damage estimates should start at $100 million, the 2006 offer from Sun.
The case is Oracle America Inc. v. Google Inc., 10-03561, U.S. District Court, Northern District of California (San Francisco).
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