Google's Eric Schmidt defends Android in court

Google Executive Chairman Eric Schmidt was Oracle's final witness for the API copyright phase of the trial, in which Oracle is seeking $1 billion in damages, and the first witness as Google began its defense.

Oracle lawyer David Boies focused his questioning of Schmidt on Google's apparent ongoing concern, expressed in e-mails and documents, about whether the company needed to get a license from Sun, despite its alleged "clean room" implementation. Google lawyer Robert Van Nest focused on Schmidt's interaction with his old friends at Sun, who Schmidt testified didn't express any concerns about or disapproval of Android, or that Google needed a license to use Java APIs in Android.

Schmidt served as Google's CEO for a decade and, like many others taking the witness stand in the legal battle with Oracle, he is a former Sun executive. Schmidt joined Sun in 1983 and held several high-level positions, including director of software engineering and chief technology officer. He was also involved in the development of Java, and was close friends with Scott McNealy and Jonathan Schwartz, who served as Sun CEO. Schmidt left Sun in 1997 and became CEO of Novell. He joined Google as CEO in 2001.

Oracle's lead lawyer, David Boies, started with an August 2005 presentation about the Android project made by Andy Rubin to the top executives at Google.

Google benefits by having more control of the user experience and built-in Google apps, Boies stated.

"We make our advertising from search, so it may or may not cause more advertising revenue," Schmidt said.

"In fact, I think you said the revenue you receive as a result of additional search revenue paid for Android and a whole bunch more," Boies said.

"Yes," Schmidt responded.

Boies moved on to documents outlining Google's plan for Android to enter the handset market. According to the document, Google's intent for Android included:

• Disrupt the closed and proprietary nature of two dominant industry players -- Microsoft and Symbian (Nokia)
• Build a community force around Google's handset APIs and applications

Given the focus of the trial on Oracle's claim to copyrights on Java APIs, Boies asked Schmidt if the reference to Google APIs referred to Android APIs. Schmidt answered in the affirmative.

Boies showed Schmidt a presentation on Android and notes from a meeting in January 2007, highlighting the following text:

Eric Schmidt: What about Java?

Andy Rubin: We doing it ourselves, have JVM but not libraries. Still shopping for libs/JVMs. Talking to various partners including IBM, Emmertec, XCE, etc. This is still a hotspot.

For Boies, this exchange highlighted the themes he was trying to get across to Judge Alsup and the jury:

• Google had said a clean-room version would be unlikely due to the many former Java gurus at Sun, but Google was going ahead without a Sun license, which, in many memos, including ones sent as late as 2010, was said to be necessary.
• The APIs (libraries) and JVM were "hot spots," and from that, Boies inferred that they may be more than ideas, and possibly copyrightable.

Boies then asked whether the Apache software on which Google was relying was authorized for mobile devices.

"I do not know the details of that," Schmidt said.

Boies then asked about an Executive Management Group presentation that talked about a possible deal between Sun and Google, with the following bullet points:

• The first reason is critical to our open-source handset strategy
• Dramatically accelerates our schedule
• Forms an industry alliance to block Microsoft
• Creates value for wireless stakeholders

He followed that document with the August 6, 2010, memo from Tim Lindholm, a former Sun Java guru who joined Google in 2005, in which he stated that Google co-founders Larry Page and Sergey Brin would look for alternatives to licensing Sun technology.

"Were you aware that Larry and Sergey asked Lindholm do this?" Boies asked.

"I was aware that we were thinking about what to do; I didn't know the specifics," Schmidt said.

Lindholm's e-mail said all the alternatives "suck," and he concluded that Google needed to negotiate a license with Java.

"It was not reported to me," Schmidt said.

Boies asked about a July 26, 2005, presentation stating that Google was required to take a license from Sun.

Schmidt didn't remember that particular presentation.

"Were you told in 2005 that people responsible for Android said that Google must take a license for Java?" Boies asked.

"I do not actually recall," Schmidt responded, adding that something wasn't right with the Java license. The second part of his response was stricken from the record.

Oracle thus rested its case in this first phase of the trail. Now Google puts on its defense, and the first witness is...Eric Schmidt.

Google lawyer Robert Van Nest led the direct examination of Schwartz, asking about the e-mails saying Google should acquire a license from Sun for Java.

"Must take a license from Sun refers to the previous statement [in a document] about getting the Java coffee cup logo," Schmidt said.

Van Nest asked Schmidt about what other companies, besides Sun, Google was talking with about Android. He mentioned hardware manufacturers, but no other software company with a JVM and APIs.

Schmidt said he had many discussions with Sun, including Sun CEO Scott McNealy, who he said was a friend and mentor. "For many reasons, we would have constant conversation," Schmidt said.

In a February 8, 2006, e-mail thread between McNealy and Schmidt, Google and Sun considered a partnership around an Open Handset Platform, which would allow the two companies to define a de facto software standard for handsets.

McNealy responded that Jonathan Schwartz, then president of Sun, and team were "on top of this," but he expressed concern about replacing lost revenues. "I'm very supportive of driving a completely open phone stack and even taking a risk with Java to get there, but I just need to understand the economics."

In an e-mail, Schwartz told Schmidt that a single, open platform for multiple consumer devices was good, but negotiations to create a Java-Linux mobile platform had reached an impasse. Schwartz said Sun was willing to embrace innovations to make Google applications "shine," but not willing to cede complete control of management of key components of the Java software stack.

Schmidt responded to Schwartz's concerns in May 2006, saying he was OK with each party hosting and managing its own contributions. "I viewed it as a relatively minor issue," Schmidt told Van Nest.

Schmidt wrote that Google should have the final say over which part of Sun's technology is contributed to an open platform, given that Google was going to pay Sun for access to the source code. He said the negotiation broke down because of a control issue. "Sun's view was that they wanted much tighter control," Schmidt said.

Without an agreement, Google's Android team developed a "clean room" implementation that uses a completely different approach to the way Java worked internally, Schmidt said. "This was done by a team that did not come from Sun and did not use Sun's intellectual property, so I was told," he stated.

Android uses the Java language and APIs, but not the source code or APIs, Schmidt added. "It was my understanding it was completely fine [to use the Java language], and Sun had made the Java language available."

Schmidt expressed the Google view that the APIs are part of the language and required to use the language.

Schmidt said Sun did not request any license in 2006, when Android was developing its "clean room" implementation.

When Google announced Android and the Open Handset Alliance in 2007, Sun CEO Jonathan Schwartz sent a note to Schmidt asking him how he could help with Google's announcement of the Android software developer kit, and wrote a public blog post:

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 their new Java/Linux platform, Android. Congratulations!

I'd also like Sun to be the first platform software company to commit to a complete developer environment around the platform, as we throw Sun's NetBeans developer platform for mobile devices behind the effort. We've obviously done a ton of work to support developers on all Java-based platforms, and we're pleased to add Google's Android to the list.

And needless to say, Google and the Open Handset Alliance just strapped another set of rockets to the community's momentum -- and to the vision defining opportunity across our (and other) planets.

Following the Open Handset Alliance announcement, Google continued to talk with Schwartz. "Jonathan's core view was to make Java more successful," Schmidt said. On March 31, 2008, Schwartz and Schmidt met at Sun's headquarters to discuss their licensing approaches, and whether it made sense for Sun to put some of its software on top of Google's platform.

"I was concerned that there was miscommunication between the teams," Schmidt said. "He was exploring what choices there were to take advantage of Java users in a good way," Schmidt said.

In an e-mail from Schmidt to Schwartz on March 31, 2008, the then-Google CEO said Sun could take Android and do whatever it liked, subject to the license, and add the Java code and make it available.

In subsequent meetings, Schmidt said Schwartz didn't express any concerns about or disapproval of Android, or that Google needed a license to use Java APIs in Android.

"My understanding is that what we were doing was permissible because of the sum of my experiences and interactions I had," Schmidt said, adding that he was "very comfortable that what we were doing was both legally correct and consistent" with the policies of Sun and Google at that time.

Van Nest asked Schmidt about other uses of Java APIs. He noted IBM and handset makers, but wasn't asked whether they were Sun licensees.

Boies began his redirect by asking Schmidt about how his conversations with Schwartz gave him the impression that Sun was comfortable with what Google was doing with Android.

Boies read from Schmidt's earlier deposition for the case, in which he stated that he spoke with Jonathan Schwartz a couple of times in the preceding years and that Schwartz told him orally that he was comfortable with what Google was doing. In the deposition, Schmidt couldn't recall a few of the specific details of his conversations with Schwartz.

Schwartz will be called as a witness by Google in the coming days to shed more light on what the two discussed.

Boies asked Schmidt if he was asserting that Google has rights to any Sun technology under the Apache license.

"You are aware that Google does not have a license from Sun to use Java APIs," Boies said.

Schmidt agreed. Boies asked why Sun didn't license the Sun APIs through the GPL license. Schmidt said Google chose to use the Apache license rather than the GPL license.

Boies went on to discuss Google's use of Java APIs, specifically the 37 APIs upon which Oracle said Google infringed. Schmidt said the 37 APIs are needed to make the Java language useful. "The 37 APIs are roughly the right number," Schmidt said. "We implemented those interfaces in our own way."

"Are you saying the only thing you copied from the Java APIs are the names?" Boies asked.

"Yes," Schmidt responded. "As I understand, we did our own implementation of the 37 APIs. I don't the know the technical details."

Boies asked Schmidt about his statement to Google lawyer Van Nest that the reference to Google needing to get a license from Sun for Java was about getting the Java coffee-cup logo.

Schmidt said it was possible to license the Java trademark without the code, but he allowed that there is far more to an OSS J2 ME JVM license than a trademark.

Schmidt was asked about calls from the Android team to get a TCK (Technology Compatibility Kit) license from Sun, but he could not recall a lot of details, such as what TCK license meant. "Things change over 20 years," he said.

Boies finally asked about a 2009 Google proposal to buy all the rights to Java from Sun. Schmidt had written that it was "certainly a clever idea," and that he would ask his team to pursue the idea.

As a finale, Judge Alsup went back to the case at hand -- whether the 37 Java APIs are copyrightable -- asking Schmidt to define the difference between an API and its implementation. Like others from the Google side before him, the former Google CEO suggested in his testimony that APIs are not subject to copyright like an implementation of an API.