Schmidt Dons Sun Hat to Shield Google at Oracle-Java Trial

Alphabet Inc. Chairman Eric Schmidt’s experience negotiating on both sides over use of Java programming language makes him Google’s star defense witness in its $9.3 billion trial with Oracle Corp.

Google may be on its way to victory if it can convince a jury that the Sun Microsystems executives who pioneered Java in the 1990s, including Schmidt, never intended for the search engine giant to pay for using the language to develop Android into the world’s dominant mobile operating system.

Wearing both hats to tell that story was Schmidt’s mission as a witness, while deflecting crossfire from an Oracle lawyer who sought to show Schmidt had to be aware that Google was lifting Java code without a license to build Android, and that it was illegal.

The chairman of Google’s parent company, who wrapped up two days on the stand Wednesday, testified at length about his 14-year ascendancy at Sun and his work developing and marketing Java before he became Google’s chief executive officer in 2001. Oracle acquired Sun in 2010 and Schmidt was involved in the failed licensing negotiations that spurred the copyright-infringement lawsuit filed that year by the database maker.

Calling Schmidt as its first witness was intended to blunt Google’s awkward starting position in the trial — with the judge telling the jury it’s already been established that the Internet giant infringed Oracle’s copyright. That finding, from a 2012 jury verdict, set the stage for the current trial over whether the infringement was justified under the legal doctrine of fair use.

‘Authority Figure’

"He’s an authority figure who was there in the negotiations" between Oracle and Google, said Michael Risch, a law professor at Villanova University School of Law in Pennsylvania who’s been following the case. "Also, because he was with both companies, he can say with authority how Sun did business."

Schmidt told jurors that Google didn’t need to license Java application programming interfaces, or APIs, to build Android. The APIs at the heart of the lawsuit are shortcuts that allow developers to write programs to work across software platforms. Familiarity with the Java APIs encouraged programmers to create applications for Android.

"Testimony by Schmidt is setting up the claim that Oracle — previously Sun — led Google to believe that use of the APIs would not require a license," Risch said. "They’re using him to show this was not the practice at Sun and also that the issue was never raised during negotiations between Google and Oracle."

Under questioning from Google’s lawyer, Robert Van Nest, Schmidt testified that he personally announced the release of Java at a San Francisco convention center in 1995, and for a period of time at Sun was in charge of developing the APIs.

‘In Charge’

Later, as Google’s CEO, Schmidt oversaw negotiations to license Java for Android for $30 million to $40 million. Negotiations broke down over “who was in charge” of how much of Sun’s technology should be used in the operating system, he said.

Schmidt told jurors that, based on his “many years of experience” with Java, hebelieved Google was permitted to use the APIs without a negotiated license, aslong as the company relied on its own code.

“We did not use any code that Sun had implemented,” Schmidt said.

On cross-examination, Oracle’s lawyer pointed out that while Schmidt was at Sun, the company in 1995 published a book for programmers that included a sample Java license.

Schmidt, leafing through the book, told the jury he hadn’t seen a copy of it in more than 10 years, and said he didn’t remember it included a license.

Oracle is recycling some of the evidence it presented in the trial four years ago to show that Google knew it needed a license.

‘Technical Alternatives’

In a 2010 e-mail shown to jurors in 2012 and again this week, a Google software engineer told a colleague he’d been asked by Sergey Brin and Larry Page, Google’s co-founders, to “investigate what technical alternatives exist to Java for Android.”

“We’ve been over a bunch of these, and think they all suck,” the engineer wrote. “We conclude that we need to negotiate a license for Java under the terms we need.”

Later on Wednesday Google called former Sun CEO Jonathan Schwartz to back up Schmidt’s testimony.

Schwartz explained to jurors that programmers use a language such as Java to write computer programs, and in so doing, use the “pre-existing functionality” of APIs. Sun promoted the APIs as “free and open,” and not sold or licensed separately from Java, he said.

“Having an open API was very important to us,” to get companies such as Oracle, IBM and SAP to adopt Java, Schwartz said. “If they felt what Sun was delivering favored Sun, they’d never work with us,” he said. “It was a way to make things fair — we’d make the APIs available to anyone who was willing to use them.”

Google lawyer Van Nest asked Schwartz whether the APIs were ever considered proprietary during his tenure at Sun.

‘No, Never’

“No, never,” Schwartz said.

Google showed jurors a November 2007 blog post Schwartz wrote extolling the release of Android and what it meant for Java’s open source developers.

“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 phone platform, Android. Congratulations!” The announcement “just strapped another set of rockets to the community’s momentum,” he wrote.

On cross-examination, Oracle lawyer Peter Bicks tried to demonstrate that Schwartz’s public enthusiasm for Google’s use of Java conflicted with his true feelings. He displayed another e-mail, from the same month as the blog, which Schwartz wrote to John Fowler, a former Sun vice president who still holds that title at Oracle.

“I have no 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,” Schwartz wrote.

The case is Oracle America Inc. v. Google Inc., 10-cv-03561, U.S. District Court, Northern District of California (San Francisco).