Oracle v Google: The Jury Knows Ignorance When They Hear It

It never ceases to amaze me how ignorant of sharing, FLOSS and the GPL that big players in the world of IT can be. Yesterday, I read the accounts on GROKLAW of the testimony of Jonathan Schwartz, ex-CEO of SUN Microsystems, and Scott McNealy, ex-CEO of SUN Microsystems. It was as if they were from different planets:

Jonathan Schwartz Scot McNealy
“Google: Did Sun participate in the OSS movement?

Jonathan Schwartz: We were slow to do this. We didn’t see how to make money off of it. RedHat was doing it brilliantly. Make money off of support. widely-adopted. As an enterprise, complexity is your enemy.

Google: What is GNU Classpath?

Jonathan Schwartz: Yes I know it. Dynamics of Open Source community. Linux was a clone of Unix… GNU Classpath was an OSS implementation of Java. There was little that we could do to stop them; they didn’t call it Java.

Google: They used the Java Programming Language?

Judge: And the APIs?

Jonathan Schwartz: Yes.

Google: Did they ever call themselves Java?

Jonathan Schwartz: Not to the best of my knowledge.

Google: As CEO of Sun, were you satisfied that what GNU Classpath was doing was fine?

Jonathan Schwartz: There was nothing that we could or did do to stop it.

Google: GNU Classpath had a license?

Jonathan Schwartz: They had no license.

Google: What is Apache Harmony?

Jonathan Schwartz: Similar to GNU Classpath. Example of on a browser, looking at a stock ticker tracker… a competitor to Sun’s Java. Differences in approach to philosophy

Google: Was Apache independent of Sun?

Jonathan Schwartz: Funded largely by IBM and Oracle.

Judge: Did Apache have any kind of license?

Jonathan Schwartz: They were a part of the JCP… the trademark and specifications were tied. We couldn’t keep people from [ rolling their own ]. Understanding the business model: companies producing Apache were paying Sun fees… would then allow, companies helping Apache could say, “we’ll just run Apache”.”

“Scott McNealy: [What Google was doing was] re-sharing innovation.

Oracle: [What do you recall about] GPL restrictions?

Scott McNealy: I don’t recall officially. [ Something about ] no commercial use.

Google: Move to strike.[PJ: There is no such restriction in the GPL.]

Judge: Stricken. [Tells jury to ignore the answer.]”

“Google: What is Jonathan’s Blog?

Jonathan Schwartz: Sun seems like a big company, but our competitors are ten times bigger than we were. Always faced with a human scale problem, they had more resources (advertising, sales rep).

Google: Was the blog posted on Sun’s web site?

Jonathan Schwartz: Yes, it was our way of telling our customers what we thought was important. [ the equivalent of calling a press conference, but without having to call the press.]

Google: Describe the concept of Open Source.

Jonathan Schwartz: Wikipedia is an example… an open source encyclopedia.

That all changed with an individual named Linus Torvalds.”

“Google: Mr. Schwartz had a blog as CEO, right?

Scott McNealy: I didn’t read it.

Google: You never shut it down, did you?

Scott McNealy: No.”

Clearly Google had a licence, the GPL, for the code from Harmony and a licence from SUN for Java language which was GPL. That included the API, without which the Java language could be used for little, not even “Hello, World!” programmes.

One wonders whether the ignorance of Scott McNealy was wilful. In the testimony drawn to impeach his criticism of Android/Linux and Google it emerged that, “Google: You made a lot of money when Sun bought Oracle?

Scott McNealy: Actually, I cashed out before the acquisition closed.

Google: How much money did you make?

Scott McNealy: A couple hundred million [dollars].

Google: You’ve made references to Larry Ellison as being a national economic hero?

Scott McNealy: Yes, for all the taxes he’s paid.

Google: You proposed renaming the Norman Minetta airport in San Jose be renamed to the Larry Ellison Airport?

Scott McNealy: Yes.

Google: Do you remember the JavaOne conference, the one where you were on-stage with Larry Ellison?

Scott McNealy: I don’t recall.

Google: You are a big fan of Open Source, right?

Scott McNealy: Yes.

Google: You said, “Open is good.”

Scott McNealy: Yes.

Google: [You are quoted as saying “open and shared”; this is about Java, right?

Scott McNealy: Yes.

Google: You said, “Interfaces should be public and open”?

Scott McNealy: Yes.

Google: That nobody should own the fact that the brake pedal in a car is to the left of the gas pedal”, right?

Scott McNealy: Yes.”

Chuckle. On how many layers of their defence are Google winning this one?

  1. Rule 50 motion to kill the copyright claim as a matter of law because Oracle did not state its case properly…
  2. Clear ignorance and bias of Oracle’s witnesses…
  3. The judge and jury are both wide awake and asking pointed questions…
  4. Most of the patents being thrown out for invalidity…

I expect we will know Judge Alsup’s answer to the Rule 50 motion by the beginning of next week. The jury is supposed to start deliberating then and they may have a very short to-do list.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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3 Responses to Oracle v Google: The Jury Knows Ignorance When They Hear It

  1. Clarence Moon says:

    why don’t they just leave FLOSS alone…

    I doubt that they are looking at it as a “FLOSS issue”, Mr. Pogson. Rather it is a money issue and Oracle sees a profit at hand. Google is using the fruits of java and Oracle owns java and is after the money involved. There is no philosophical facet of the case, I think.

    I also wonder how big the “market” might be for all of the companies involved, Microsoft, Google, Oracle, Apple, etc.. Your cite elsewhere claims some 660M smart phones and tablets total shipments for 2012. Microsoft, at least, seems to have a price tag of around $7 per unit for their OS stuff, so that might set a cap of $4B to $5B on the value of framework software, however supplied, as the size of the potential market.

    Given the kinds of numbers that Microsoft reports for PC OS revenues, that is a rather small potato comparatively.

  2. My only emotion is joy seeing purveyors of non-FREE software coming to grief trying to kill sharing. If their products are so good, why don’t they just leave FLOSS alone and get on with their business? It’s not good business to establish a reputation as a bully who picks fights and loses them.

    The motion-practice before the trial and what has gone on before the jury shows Ellison’s case is like a flimsy beach house before a tsunami. There’s no foundation to the claims for $billions, and even if the jury finds in Oracle’s favour on all claims the amount may only be pocket change for Google. Most of the patent-case has been killed by USPTO and the judge. Most of the copyright-case has been killed by Oracle’s own witnesses. The copyright case also has a legal sword hanging over it, that BSF presented a case with no foundation. They have not even managed to prove they own the copyrights relevant to their claims. That’s Law 101, like suing the right people and providing evidence… Chuckle.

    It’s going to take a lot of flexibility from the judge to salvage anything from Oracle’s case and the tone of his handling of the lawyers has shifted dramatically from the beginning so I think he’s tired of being flexible with Oracle. Still, he may pull a rabbit out of a hat to salvage something to avoid the whole process being a waste of his and the jurors’ time.

    I am not a lawyer so I have no idea what level of prejudice will be applied to Oracle’s case. I don’t see how Oracle’s blunders give Google a clean legal bill of health, but I think Ellison might actually want to cut his losses at some point. He might even be willing to give Google a licence for whatever for $1 just to say they took a licence…

  3. Clarence Moon says:

    I expect we will know Judge Alsup’s answer…

    You continuously chortle and snort at the Oracle side of this litigation, Mr. Pogson. You may be proven correct and Oracle may get nothing from their efforts, but it seems to me that you are only operating on emotion. I am not a lawyer in any sense of the word, but I have heard our company lawyers opine on the idea presented here, namely that the overall effect of the java classes can be considered a work and so the Oracle suit has some merit.

    I personally see this as a lawyer/court issue that mostly serves to validate the existence of both. If it can be shown that software patents are mostly invalid and that all these licenses and court actions are not necessary for the protection of intellectual property as has been thought all these years, the future of the patent lawyers as well as the judges and the rest of the court system is in doubt. Do you suppose the system will operate here so to eliminate itself?

    I can only go on the notion of the form and function of the actions. Something so one-sided as you suggest would not have survived to this point, I think. There is more to it than meets your eye.

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