Much ado about former Sun CEO's 'congratulations' to Google

For the jury evaluating testimony by the cast of Oracle and Google in their ongoing legal slugfest, the blog post by former Sun CEO Jonathan Schwartz is one of the more prominent, and less technical, points of contention in the trial. In both the copyright and the current patent phase of the trial, the blog post has been central to Google's defense.

In his testimony, Schwartz stated that he had to grit his teeth, but saw no cause to sue Google over its use of the Java programming language in the Android mobile platform. Google's counsel played up a blog post by Schwartz in which he applauded the announcement of Android on Sun's corporate web site on Nov. 5, 2007, calling it evidence that Sun pubicly supported Google's Java-forking efforts.

Schwartz told the court that his blog post was like a press release, serving as an official Sun statement. The blog post offered "heartfelt congratulations to Google on the announcement of their new Java/Linux platform, Android." He further wrote:

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.

"We didn't like [what Google was doing with Android], but we weren't going to stop it by complaining about it," Schwartz testified, explaining his public endorsement of Android at the time. "At least with Java they could be part of the Java community," he said. In the end, Sun was unable to find a way to work with Google, and Android became a separate part of the Java community, incompatible with Sun's version.

Sun co-founder and Chairman Scott McNealy countered Schwartz's testimony, telling the court that the blog was a personal, rather than corporate, work, and therefore not an official sanction for Google's incompatible use of Java.  

Sun's 10K filed with the SEC on August 29, 2008, however, appears to confirm Schwartz's view that his blog represented the company in an official manner:

Our Internet address is http://www.sun.com. The following filings are posted to our Investor Relations web site, located at http://www.sun.com/investors as soon as reasonably practical after submission to the United States (U.S.) Securities and Exchange Commission (SEC): annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, the proxy statement related to our most recent annual stockholders' meeting and any amendments to those reports or statements filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended. All such filings are available free of charge on our Investor Relations web site. We periodically webcast company announcements, product launch events and executive presentations which can be viewed via our Investor Relations web site. Additionally, we provide notifications of our material news including SEC filings, investor events, press releases and CEO blogs as part of the Official Investor Communications section of our Investor Relations web site. The contents of these web sites are not intended to be incorporated by reference into this report or in any other report or document we file and any references to these web sites are intended to be inactive textual references only.

Oracle brought former Sun and Oracle executive Brian Sutphin to the stand Wednesday to mitigate damage done by Schwartz's blog post and testimony. Sutphin, who said he was "very close" to Schwartz at Sun, told the court that he rarely read Schwartz's CEO blog and that he wasn't aware the blog was cited as a corporate instrument in the SEC filing. He also testified that Sun's leadership never brought up in discussion that it didn't have grounds to launch legal action against Google.

Florian Mueller of the FOSS Patents blog, and a consultant for Oracle, downplayed the significance of Schwartz's CEO blog.  "Many people overrate that 10-K form according to which Sun said it may make announcements via the CEO's blog. That was purely precautionary," he said.

The blog post isn't a legally binding contract, and there was plenty of griping and snipping between Sun and Google over Android for five years. But the fact is Sun didn't pursue Google with a lawsuit. 

That doesn't mean Oracle, which acquired Sun in January 2010 for $7.4 billion, couldn't do just that. And of course it did.

Supporting Schwartz's testimony, the jury did find that Google proved that Sun/Oracle engaged in conduct they knew or should have known would reasonably lead Google to believe that it would not need a license to use copyrighted compilable code. But the jury also found that Google did not prove that it reasonably relied on such conduct by Sun/Oracle in deciding to use copyrighted code without obtaining a license.

Despite the fact that Schwartz and his board of directors didn't sue Google, the jury gave Oracle the nod in finding that Google infringed on the overall structure, sequence and organization of copyrighted works in Java. But then, they couldn't agree on whether Google's use of the overall structure, sequence and organization constituted "fair use."  

In the end, whether the Schwartz blog post was official company policy or his "personal" attempt to make lemonade out of lemons, didn't appear to factor much into how the jury viewed the copyright infringement part of the case. The same may be true for the upcoming patent phase verdict.