Oracle-Google trial puts ex-Sun execs on opposite sides

Last updated August 29, 3:30 AM PT, with a correction on Java inventor James Gosling's view on the suit, and an additional quote from former Sun chief open source officer Simon Phipps. 

In the two weeks that the Oracle v. Google trial has been under way, it's become clear that Sun's top executives weren't unified in their thinking about whether Java could be used without a license from the company.

Oracle, which acquired Sun and the Java brand in January 2010, contends that Google's Android mobile platform infringed on intellectual property related to Java APIs (Application Programming Interfaces) and two patents.

Former Sun CEO Jonathan Schwartz, testifying for the defense on Thursday, stated that Java APIs were not considered proprietary or protected by Sun, as long as Google didn't use the Java name for its Android platform.

Schwartz said that Sun wasn't pleased about Google circumventing Sun's Java licensing and maintaining compatibility with its version, and several Sun executives expressed their displeasure with Google.

In a March 8, 2007 email to Schwartz, Sun co-founder and Chairman Scott McNealy wrote: "The Google thing is really a pain. They are immune to copyright laws, good citizenship, they dont share. They dont even call back."

A year later, Vineet Gupta, chief strategy and technology officer of Sun's OEM software systems engineering, mentioned bringing out the "IP hammer" on Google:

So either we find way to work together or they become our biggest competition with Android with our Java ecosystem as part of it- and all points provided for free with Googles ad engine apps and control obviously and we fight thru Suns Java/JavaFX/App Store and loose alliance of OEMs/SPs Then of course there is the IP/Patents hammer..

Despite the complaints from Sun executives, Schwartz maintained in his testimony that as long as Google didn't brand Android as "Java" in any way, there was nothing, from his perspective, that Sun could do to bring Google into the alignment Sun wanted. 

"We saw a handset bypass our brand and licensing restrictions...we decided to grit our teeth and support it so anyone supporting it would see us as part of the value chain," he testified.

McNealy, testifying for Oracle also on Thursday, contradicted Schwartz's testimony. He stated that Java was "extremely valuable" to Sun and that it involved "lots of intellectual property." In response to Oracle lawyer David Boies' question regarding whether it was ever Sun's policy to allow any company to implement an incompatible version of Java so long as they didn't call it Java, McNealy told the court, "I don't recall that was ever a strategy that we pursued nor allowed in the marketplace." 

"Open source or open standards doesn't mean 'Let's throw it over the transom,'" McNealy testified. "That's a big difference."

Yet, in the five years that Google was developing Android and talking partnership and licensing with Sun, long after phones based on the platform were in the market and after years of internal discussions at Sun including IP hammers,  Sun didn't file any patent or copyright claims against Google. It wasn't until Oracle acquired Sun that the lawsuit against Google was launched.

Full coverage: Oracle v. Google

The father of Java, James Gosling, feared that Oracle was going to take Google to court over its use of Java, and he didn't like it. addressed the topic a post on his blog, Gosling wrote:

Oracle finally filed a patent lawsuit against Google. Not a big surprise. During the integration meetings between Sun and Oracle where we were being grilled about the patent situation between Sun and Google, we could see the Oracle lawyer's eyes sparkle. Filing patent suits was never in Sun's genetic code. Alas....

I incorrectly stated his position as opposing Oracle's legal action against Google. He contacted me and pointed to a recent post to his blog in which he stated that Google "totally slimed Sun":

Just because Sun didn't have patent suits in our genetic code doesn't mean we didn't feel wronged. While I have differences with Oracle, in this case they are in the right. Google totally slimed Sun. We were all really disturbed, even Jonathan: he just decided to put on a happy face and tried to turn lemons into lemonade.

See also: Java creator James Gosling: "Google totally slimed Sun"

The Sun culture, similar in many ways to Google's in its engineering esprit de corps, pioneered open source and sharing code. The tension behind the practical business side and the more idealistic engineering is in evidence in the differing views of McNealy and Schwartz. However, Gosling, a legendary software engineer, shares McNealy's view on Oracle's claims against Google, and noted Sun's "genetic" reluctance to filing patent suits. In 2001 Sun settled a suit against Microsoft involving Java for $20 million, and in 2004 Sun settled a patent and antitrust suit against Microsoft that came with a $1.95 billion payment to Sun.

Oracle's view that Java APIs are copyrightable isn't highly popular among staunch open source advocates. Simon Phipps, the former chief open source officer at Sun,  wrote:

If Oracle wins, the decision could set a legal precedent that legitimizes controlling behaviors by platform vendors -- and introduces a complex and unwelcome legalism into software development. Header files and function prototypes would need copyright statements and corresponding copyright licenses. Open source developers would need to check that the open source license on header files they were using was compatible with the open source license on their software. Corporate developers would receive instructions from their legal departments not to use GPL headers for fear of the license terms becoming applicable to corporate software. Complexity and confusion would return to a world where they have largely been expunged, bringing fear, uncertainty, and doubt back into open source software development.

Whether Google or Oracle  prevails in this copyright infringement phase of the trial is soon up to the judge and jury, which will hear the closing statements from each side early next week.