Oracle v.

Google

What Google Wanted Sun To Do

[T]hrow away their standard license, because it isnt what were asking for, and they needed to develop a new license that was specifically what were asking for. So what were asking them to do is basically change their business model.

Andy Rubin Co-Founder of Android April 24, 2012 Trial Tr. 1606:8-17; 1618:8-15; 1596:15-20

And we would come in and we would basically say, hey, why dont you open source your technology? Why dont you make it available for free to the world as part of our platform? And, in return, well pay you a little bit of money to do that, so you guys can go and create some derivative of your business model.

Java Materials Are Copyrighted

TX 475, 450, 451, 452, 453, 454, 455, 460, 461, 462, 463, 464, 476, 509, 513, 518, 520, 521, 523, 524, 526, 598, 599, 601, 602, 603, 659

What Google Copied

JAVA
Question 1.A

ANDROID
Google copied Java structure, sequence, and organization into Android core library

Question 2

Google copied Java API documentation into Android API documentation

Question 3

Google copied from Java code into Android code

The Android APIs Have The Same Structure, Sequence, and Arrangement As The Java APIs

For the 37 accused API packages, Android and Java 2 SE version 5.0 have substantially the same selection, arrangement, and structure of API elements.
Googles Admission April 23, 2012 Trial Tr. 1337:21-24

Q. And the Structure, Sequence and Organization of the API elements is virtually identical across those 37 packages, correct? A. That's right.
Owen Astrachan, Ph.D. Googles Technical Expert April 27, 2012 Trial Tr. 2214:3-9

THE COURT: And then the names and the declarations you're going to say are the same. THE WITNESS: That's right.

Dan Bornstein, Former Google Android Tech Lead April 25, 2012 Trial Tr. 1792:4-6

Googles Expert Admits That Google Copied Java Structure, Sequence, And Organization Into Android Core Library
Q. And with respect to the packages and the structure of the packages, are there any similarities between the two platforms? A. No. The Package names, Class names, and Method names for the 37 packages are the same; otherwise, there are no they are different.
Owen Astrachan, Ph.D. Google Technical Expert April 27, 2012 Trial Tr. 2184:22-2185:9

Q. And do you have an opinion as to whether there are any reasons why those things are the same, the structure, the organization, and the names? A. As I've mentioned before, that structure of the names of the classes, packages, and methods needs to be the same so that the code will work on both platforms, be compatible, inter-operate, so that I can call the methods. Those need to be the same.

Android Core Library Copies Java Structure, Sequence, And Organization API CODE
package java.security

ProtectionDomain(CodeSource codesource, PermissionCollection ClassLoader getClassLoader () permissions) public class ProtectionDomain { of this Returns the ClassLoader Creates a new ProtectionDomain domain with the given CodeSource and public ProtectionDomain(CodeSource codesource, Permissions.

package java.security

public class ProtectionDomain {

public ProtectionDomain(CodeSource cs, PermissionCollection permissions) {

PermissionCollection permissions) {

public final ClassLoader getClassLoader() {

public final ClassLoader getClassLoader() {

TX 623

TX 46.20
7

Googles Copying Was Extensive

Google copied 37 packages with approximately:
CLASS METHOD

400 classes 4,500 methods 7,000 declarations

DECLARATION

11,000 printed pages of specifications

TX 46

Googles Example Downplays Its Copying

TX 3452
9

Copied Java APIs And Class Libraries

* * * * * * * *

*
* * *

* *

* *
* * * * * * * * * * * * *
TX 1028 (poster only)

* * * * *

10

Java Structure, Sequence, And Organization Are Complex

ByteBuffer Methods:
static ByteBuffer allocate(int capacity) static ByteBuffer allocateDirect(int capacity) byte[] array() int arrayOffset() abstract CharBuffer asCharBuffer() abstract DoubleBuffer asDoubleBuffer() abstract FloatBuffer asFloatBuffer() abstract IntBuffer asIntBuffer() abstract LongBuffer asLongBuffer() abstract ByteBuffer asReadOnlyBuffer() abstract ShortBuffer asShortBuffer() abstract ByteBuffer compact() int compareTo(ByteBuffer that) abstract ByteBuffer duplicate() boolean equals(Object ob) abstract byte get() ByteBuffer get(byte[] dst) ByteBuffer get(byte[] dst, int offset, int length) abstract byte get(int index) abstract char getChar() abstract char getChar(int index) abstract double getDouble() abstract double getDouble(int index) abstract float getFloat() abstract float getFloat(int index) abstract int getInt() abstract int getInt(int index) abstract long getLong() abstract long getLong(int index) abstract short getShort() abstract short getShort(int index) boolean hasArray() int hashCode() abstract boolean isDirect() ByteOrder order() ByteBuffer order(ByteOrder bo) abstract ByteBuffer put(byte b)

Methods inherited from class java.nio.Buffer: capacity clear flip hasRemaining isReadOnly limit limit mark position position remaining reset rewind

11

Googles Copying Is Substantial

Q. Now, you said that the -- I think you were talking about 7,000 lines of code as just a small piece of Android. Do you recall that testimony? A. Yes, I do. Q. And this is the 7,000 lines of code that word-for-word, symbol-for-symbol, is identical in the Android core libraries as compared with the Java core libraries, correct? A. Yes. Those are the Method signatures that are the same in both platforms. Q. As to the 37 packages? A. That's correct. Q. What would happen if you ripped those lines out of Android? A. Well, for the purposes of the Android core libraries, those are part of it, so they need to be there for Android to work as it's been designed.
12

Owen Astrachan, Ph.D. Google Technical Expert April 27, 2012 Trial Tr. 2212:3-19

Googles Expert Admits Google Could Have Chosen Not To Infringe

Q. Couldn't the Android developers have written their own Application Programming Interfaces for the overwhelming majority of the 37 packages that are in dispute? A. If you're asking is it possible to write a different API, then it would be possible to write a different API. Q. And couldn't you write a different API that would provide the same basic functionality in terms of what services it provided? A. Yeah, I think it would be possible to provide an API that performed similar functionality; not maybe exactly the same but similar. Q. Well, they wrote most of their own core libraries, according to you; right, sir? A. Yes, that's correct.

Owen Astrachan, Ph.D. Google Technical Expert April 27, 2012 Trial Tr. 2212:25-2213:10, 2213:17-19

13

Fair Use
1

14

Googles Copying Is Not Fair Use

Instruction 28: For example, fair use may include use for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Fair Use Criticism Comment News Reporting Teaching Scholarship Research
Googles Use

NO NO

NO
NO NO NO
15

Fair Use Factor 1

16

Googles Launched Android To Make Money

Eric Schmidt Google Chairman and Former CEO April 24, 2012 Trial Tr. 1458:12-16

The vast majority of Google's revenue at the time and today comes from search revenue. And so the primary reason to have something like Android is that people will do more searches, and then we'll get more money as a result. And that's how we, essentially, pay for the strategy of Android.

17

Android Is Hugely Profitable For Google

Q. And, in fact, I think you -- you said that the revenue that you received as a result of the additional search revenue generated by Android paid for Android and, I think you said, and a whole bunch more. Do you recall that? A. Yes. Q. Would you agree with the statement that Android is hugely profitable? A. Yes.
Aditya Agarwal Googles Representative on Android Revenues April 27, 2012 Trial Tr. 2225:18-2226:24 (by videotape)
18

Eric Schmidt Google Chairman and Former CEO April 24, 2012 Trial Tr. 1456:15-19

Fair Use Factor 1

19

Google Did Not Transform The 37 Java API Packages

Google copied the 37 APIs from Java core libraries into Android core libraries

37 APIs

37 APIs
20

Java Had Been Used For Smartphones

Googles counsel: No one before Google had been able to use Java to build a successful smart phone. Nobody. (Tr. 247:7-9)

Dangers Sidekick

BlackBerry

Nokia Series 60

Google employees admitted: Danger built a Java based smartphone.

Rubin Bornstein Swetland

21

Fair Use Factor 2

22

API Design Requires Significant Expertise And Time

API design is done by Oracles most experienced and talented software engineers.
Larry Ellison, Oracle CEO, April 17, 2012 Trial Tr. 291:11-16

It took Dr. Reinhold and a team of engineers two years to develop just one package java.nio.
Mark Reinhold, Oracle Chief Java Architect, April 18, 2012 Trial Tr. 623:17-624:1

23

Designing APIs Requires Creativity And Skill

Designing APIs is a very creative process and [c]ompared to other programming tasks, I would say it is the most creative
Edward Screven, Oracle Chief Corporate Architect, April 18, 2012 Trial Tr. 513:14-18

In anything except the most trivial API design, there are so many choices to be made I wouldn't know how to start counting them.
Mark Reinhold, Ph.D., Oracle Chief Architect Of The Java Platform Group, April 18, 2012 Trial Tr. 627:21-628:1

Just as its hard to find people that are really good at anything thats hard, whether it be, you know, being an artist, a football player, a concert violinist. Those things are hard. This is something thats hard in the same way.
Owen Astrachan, Ph.D., Googles Copyright Expert, Sept. 9, 2011, Dep. 128:9-13 played April 27, 2012 Trial Tr. 2209:9-22

24

Designing APIs Requires Creativity And Skill

API design is a noble and rewarding craft API design is tough
TX 624 at p. 47, Javapolis Presentation, Antwerp Belgium, 2005

Josh Bloch Googles Chief Java Architect Former Sun Distinguished Engineer

Q. There are aesthetic matters in API design; correct, sir? A. Yes, there are. Q. And it's -- it's not being prissy to think about aesthetic matters. The aesthetics of an API design are part of this noble and rewarding craft. Correct? A. Yes. Generally, an API that displays good aesthetics will be easy to use. It's like a car's dashboard. Making it pretty isn't just about making it nice to look at. The car will be actually easier to drive if you can see the speedometer.
Josh Bloch, Google Chief Java Architect, April 19, 2012, Trial Tr. 752:5-14

Q. But that person who came up to you, had obviously left a vivid impression in your mind, was saying to you: API design is a noble and rewarding craft. You changed my life with the quality of your craftmanship. Correct? A. Yes.
Josh Bloch, Google Chief Java Architect, April 19, 2012 Trial Tr. 751:5-9
25

Fair Use Factor 3

26

Google and Oracles Experts Agree That These 37 APIs Are Important
Q. What is the significance of the decision in Android to copy the 37 API packages into the Android platform? A. Oh, so, that's huge. These 37 packages are highly useful. They're important to developers and programmers. And to have the same API as the Oracle Java library has a very high significance to any potential developers.

John Mitchell, Ph.D. Oracle Technical Expert April 23, 2012 Trial Tr. 1331:10-15

Q. What would happen if you ripped those lines out of Android? A. Well, for the purposes of the Android core libraries, those are part of it, so they need to be there for Android to work as it's been designed.
Owen Astrachan, Ph.D. Google Technical Expert April 27, 2012 Trial Tr. 2212:14-19
27

Google Specifically Chose These 37 APIs

Q. Did your determination of what packages would be implemented in the core library have anything to do with what you thought were expectations of Java language programmers? A. Yes, absolutely.
Dan Bornstein Former Google Android Tech Lead April 25, 2012 Trial Tr. 1782:6-9; 1782:10-1783:5

as a Java programmer, as, say, a typical Java programmer, there's certain of these APIs which you just sort of, like, fundamentally think of as kind of part of -- part of the system that you can just use without really having to think too much about it And my job was sort of to kind of sift through all of that and come up with a nice and consistent set of APIs that we have would then implement and provide to developers. Q. Would you agree that the Java APIs that Android supports are good stuff from Java? THE WITNESS: Yes.

Bob Lee Former Google Core Library Lead for Android TX 1067; April 25, 2012 Trial Tr. 981:22-982:21
28

Fair Use Factor 4

29

Google is Harming Oracles Java Licensing Business

30

Java Compatibility Crucial To Javas Write Once, Run Anywhere

Application Developer

JVM

JVM

JVM

Javas Consistency Is Critical

31

Android Fragmented Java Anyway

From: Rich Miner To: Dave Burke Sent: November 6, 2007

Q48. Does Android support existing Java apps?

A. No.
Q49. Is Android Java compatible? A. No.

TX 383 at p. 8

32

Android Fragmented Java Application Developer Community

Android
Application Developers

JVM
Java
Application Developers

JVM

JVM

Android

33

Google Understood That It Should Avoid Fragmenting Java

From: Andy Rubin To: Larry Page Sent: October 11, 2005

My proposal is that we take a license that specifically grants the right for us to Open Source our product. Well pay Sun for the license and the TCK. Before we release our product to the open source community we'll make sure our JVM passes all TCK certification tests so that we don't create fragmentation.

TX 7 at p. 1

34

Google Knew Java Fragmentation Would Get Them Into Trouble With Sun
From: Tim Lindholm To: Andy Rubin Sent: October 26, 2005

If we dont show strong efforts toward avoiding fragmentation we are also going to have much more trouble with Sun.

TX 125 at p. 1

35

Google Knew Its Failure To Avoid Fragmentation Would Get Them Into Trouble With Sun
From: Andy Rubin To: Barry Schnitt Sent: November 14, 2007

Suns Comment to CNet: Were reaching out to Google and assuming theyll be reaching out to us to ensure these platforms and APIs will be compatible Rubin: This is a touchy subject.

TX 180 at pp. 1-2

36

Android Blocks Oracles Java Opportunities

Q. And what were the reasons for your decision not to go forward with a Java-based smart phone?
A. Well, you know, when you enter a market, especially a competitive market like smart phone platforms, it's important to be first with a compelling advantage. Our compelling advantage would have been Java. But Android had already been released. Android was already out on millions of devices. So Google's Android-Java clone had basically foreclosed the market from us.

Edward Screven Oracle Chief Corporate Architect April 18, 2012 Trial Tr. 533:7-15

37

Its Hard To Compete With Free

Q. But you do know that, upon Oracle's acquisition, Oracle sought to assert rights in APIs; is that right? A. We talked about our intellectual property to the different parts of Java, yes. Q. And that happened after Oracle thought about and decided not to pursue a Java Phone, right? A. It's after we looked at a Java Phone idea. Q. Right. And Oracle never pursued that, correct? A. No, we did not. Q. Did not pursue it; is that right? A. It's pretty hard to compete with free.

Safra Catz Oracle President April 27, 2012 Trial Tr. 2322:2-12

38

Googles Copying Is Not Fair Use

Fair Use Factor
1. Purpose and character of the use.

Fact
Google used Java APIs to make money from advertising on mobile phones. Java was already on mobile phones. Android is NOT transformative. Java APIs are complex, creative, even aesthetic works.

Fair Use?

NO NO NO

2. Nature of the copyrighted work. 3. The quantity and quality of what Google copied.

37 Java API packages that Google copied in every detail are highly useful, are necessary, and are expected by Java developers. Android: Displaces licensed Java Causes fragmentation Blocks Java opportunities.

4. The effect on the potential market for or value of the copyrighted work.

NO

39

40

Google Paraphrased The Java Documentation

Q. So when writing the comments, the comment writers on the Android team were looking at the comments in the Java documentation, correct? A. Yes.
Bob Lee Former Google Core Library Lead for Android April 23, 2012 Trial Tr. 991:20-992:5

Q. And what instructions were they given about how to avoid copyright infringement comment to comment? A. Uhm, I guess this would be equivalent to paraphrasing a book or an article, or something like that. So, obviously, you don't copy it word for word. Q. And you don't paraphrase either; correct, sir? A. Uhm, well, I believe they did paraphrase.

41

Googles Copying Of Java API Documentation Results In Virtual Identity

TX 610.2

TX 767
42

Googles Copying Of Java API Documentation Results In Virtual Identity

v
A CipherInputStream is composed of an InputStream and a Cipher so that read() methods return data that are read in from the underlying InputStream but have been additionally processed by the Cipher. The Cipher must be fully initialized before being used by a CipherInputStream. For example, if the Cipher is initialized for decryption, the CipherInputStream will attempt to read in data and decrypt them, before returning the decrypted data.

This class wraps an InputStream and a cipher so that read() methods return data that are read from the underlying InputStream and processed by the cipher. The cipher must be initialized for the requested operation before being used by a CipherInputStream. For example, if a cipher initialized for decryption is used with a CipherInputStream, the CipherInputStream tries to read the data an decrypt them before returning.

TX 610.2

TX 767
43

Google Copied The Java Documentation Across The Board

Q. So you would expect the same level of similarity that the jury has seen in these examples so far across the documentation for the 37 packages, sir?
Bob Lee Former Google Core Library Lead for Android April 23, 2012 Trial Tr. 1175:25-1176:3

A. Generally, yes.

44

Google Copied The Java Documentation Across The Board

API Documentation
API Documentation

TX 610.2

TX 767

45

Google Paraphrased The Java Documentation

Bob Lee Former Google Core Library Lead for Android April 23, 2012 Trial Tr. 1191:3-17

Q. What, if any, similarities would you expect to find in any two descriptions of the same method or class within the Java API libraries? A. So these, especially the specification parts, are a contract. These are specific rules. You know, I actually wasn't even a big fan of including these. I would have preferred that we just point people to Sun's site for this specific documentation because you shouldn't really be rewriting a contract. And in doing so they are going to be substantially similar. You're talking about a very specific thing and very specific rules about technologies that have very specific terminology, so there's only so many ways that you can phrase things.

46

Fair Use
2

47

48

Google Literally Copied Java Code

TX 1072
49

Google Decompiled And Copied Java Code

TX 896.1

TX 1031
50

Google Copied Java Comments Into Android Code

TX 623.9

TX 1039

51

Google Literally Copied Java Code CODE

rangeCheck() from Oracle java.util.Arrays.java

CODE
rangeCheck() from Android TimSort.java

private static void rangeCheck(int arrayLen, int fromIndex, int toIndex) { if (fromIndex > toIndex) throw new IllegalArgumentException("fromIndex(" + fromIndex + ") > toIndex(" + toIndex+")"); if (fromIndex < 0) throw new ArrayIndexOutOfBoundsException(fromIndex); if (toIndex > arrayLen) throw new ArrayIndexOutOfBoundsException(toIndex); }

private static void rangeCheck(int arrayLen, int fromIndex, int toIndex) { if (fromIndex > toIndex) throw new IllegalArgumentException("fromIndex(" + fromIndex + ") > toIndex(" + toIndex+")"); if (fromIndex < 0) throw new ArrayIndexOutOfBoundsException(fromIndex); if (toIndex > arrayLen) throw new ArrayIndexOutOfBoundsException(toIndex); }

TX 794

52

rangeCheck Is Significant

Q. Did you conduct an analysis of the significance of rangeCheck to other code in the same class file? A. Yes. Q. What did you conclude? A. I found a number of other source code in other files that called that function. And, also, I did an experiment with the phone source code instrumented, and counted the number of times that rangeCheck was called in starting up the phone. And I found that it's called 2600 times just in powering on the device or starting the emulator. So 2600 seems like a pretty big number for the number of calls to this function.

John Mitchell, Ph.D., Oracle Technical Expert April 23, 2012 Trial Tr. 1329:9-21

53

Google Still Makes Copied Files Available

THE COURT:

Isnt it true that within recent months you could still go on the Google website and find these very files with the same code in there? True or not?

Dan Bornstein Former Google Android Tech Lead April 25, 1012 Tr. 1832:3-10

THE WITNESS: You can look at the history and see those files. THE COURT: So its there, available to the public. True?

THE WITNESS: Fair enough.

54

Other Issues Raised By Google 1. Whether APIs are part of the language 2. Whether Google uses the Java brand 3. Whether Googles development was clean 4. Whether Google was seeking a Sun partnership

55

The 37 Java APIs Are Separate From And Not Required By The Java Programming Language Googles counsel: APIs are necessary to use the language. (Tr. 244:1-2.)

Owen Astrachan, Ph.D. Google Technical Expert April 27, 2012 Trial Tr. 2220:1-7

Q. Was the choice to pick 37 packages to implement Android, was that a requirement of the Java programming language or a commercial objective of the Google developer, sir? A. I can only tell you that it was not a requirement of the Java programming language. I can't tell you - I was not conversant with the Android developers -- as to why they chose it.
56

Suns Specification License Applies Regardless of Whether A Company Uses The Java Brand
Suns specification license:

Excludes trademark
Applies regardless of whether you call implementation Java

Only somewhat familiar with license. (Tr. 2013:22-2014:6.) I'm not there to write our contracts. (Tr. 2015:2-7.)

TX 610.1

57

Google Knew Java APIs Were Copyrighted And Licensed

From: Andy Rubin To: Greg Stein Sent: March 24, 2006

Ha, wish them luck. Java.lang apis are copyrighted. And Sun gets to say who they license the tck to, and forces you to take the shared part which taints any clean room implementation.

TX 18 at p. 1

58

Googles Android Is Not A Clean Room Implementation

Copied Code Decompiled Code Super Shady Contractors Conflicted Engineers

TX 281

Joshua Bloch

Core Android engineers came from Danger

Dan Bornstein

Andy Rubin

Brian Swetland

Hiroshi Lockheimer
59

Google Knew It Needed A License If It Did Not Partner With Sun For Android
From: Andy Rubin To: Tim Lindholm Sent: February 20, 2005

either (a) well partner with Sun as contemplated in our recent discussions or (b) well take a license.

TX 12 at p. 1

60

61

Sun Posted Its Copyright Notice And License

TX 610.2
62

Sun Posted Its Copyright Notice And License

Q. You consulted the Java API specifications to make sure that the Android code for the corresponding core libraries would be consistent with those specifications, correct? A. Yes.
Bob Lee Former Google Core Library Lead for Android Trial Tr. 982:25-983:12

Q. The Java API specifications that you consulted were available on Sun's website, correct? A. Yes. Q. And you consulted those Java API specifications while you were doing work for Google on Android, correct? A. Yes. Q. You saw that there were copyright notices on the Java API specifications when you consulted them, correct? A. Yes.
63

Sun Refused To Modify Its Licenses For Harmony

April 10, 2007 Open Letter to Sun Microsystems

This test kit, called the Java Compatibility Kit or JCK, is needed by the Apache Harmony project to demonstrate its compatibility with the Java SE specification, as required by Suns specification license.

TX 917 at p.1

64

Sun Refused To Modify Its Licenses For Harmony

Q. Apache Harmony did not have a TCK license, correct? A. That is correct.
Josh Bloch, Ph.D., Former Sun Distinguished Engineer And Now Google Chief Java Architect April 19, 2012 Trial Tr. 829:9-10

Bob Lee Former Google Core Library Lead for Android Trial Tr. 1209:17-20

Q. And Apache concluded that a license was required from the spec lead under whatever terms the spec lead chooses; did they not, sir? A. That's the unfortunate reality, yes.

65

Schwartzs Blog Post Is Not A License

Blog License

TX 2260 at p. 1

TX 610.1 at p. 1

66

Schwartz Blogged With Gritted Teeth

Jonathan Schwartz Former Sun Microsystems Chief Executive Officer (2006-2010) April 26, 2012 Trial Tr. 1991:9-14

We could pound on the table and say Stop and try to sue somebody, which would have made it more successful, or we could grit our teeth, make the best of an uncomfortable situation and embrace it, and then try to get our products to support it so anyone who wanted to use it would come to us and see us as a part of that value chain.

67

Sun Publicly Expressed Concern Regarding Android

Seven days after Schwartz posted his blog, Google released the Android SDK, and Sun then publicly expressed concern.
November 15, 2007 ZDNet Report

Sun Concerned Googles Android Will Fracture Java

Were really interested in working with Google to make sure we dont end up in a fractured environment.

TX 1048 http://www.zdnetasia.com/sun-concerned-googles-androidwill-fracture-java-62034418.htm

68

Sun Had Ongoing Negotiations With Google

From: Vineet Gupta To: Jonathan Swartz Sent: October 23, 2008

Android discussion proposal more than likely is going to be about buying out Java.

TX 2070 at p. 1

69

Sun Told Google It Needed A License For Android

April of 2009, I had a discussion where the person from Google wanted to discuss Java Standard Edition. But I brought up the subject of Android, and we discussed that, as well.
Leo Cizek Oracle Account Manager April 20, 2012 Tr. 1071:25-1072:3, Tr. 1073:5-9

I said that there would be something that would have to be fixed, first, which is the fact that regarding Android there was no commercial use license; and, as we understood it, Android was shipping an incompatible version of Java, commercially.

70

Sun Warned Oracle About Battle With Google/Android

From: Jonathan Schwartz To: Larry Ellison Sent: April 20, 2009

Theres obviously a lot we didnt focus on during the past (whirlwind) week from the instrumentation were building into our open source assets (so they auto-generate data about the millions of customers downloading them), to the battles with Adobe Flash/Google Android, Microsofts distribution dependencies, etc.

TX 2362 at p. 1

71

Sun/Oracle Had Continuing Negotiations With Google

Q. Were you one of the people that participated in deciding to break off efforts to reach agreement with Sun? A. I definitely participated in that, from my memory. But I also say Im not sure theyve ever broken off. Continue to have discussions to this day.

Larry Page Google CEO April 18, 2012 Trial Tr. 492:18-21

72

73

No pre-lawsuit document saying Google relied in any way on positive comments about Android.

74

Google Chose To Make Enemies Early On

From: Andy Rubin To: Larry Page Sent: October 11, 2005

If Sun doesnt want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language -or 2) Do Java anyway and defend our decision, perhaps making enemies along the way

TX 7 at p. 2

75

Google Could Not Have Relied Because Googles Copying Was Complete Before November 2007
Q. Did you decide to include the 37 packages of Java APIs in Android after you read that blog announcement? A. No.
Dan Bornstein Former Google Android Tech Lead April 25, 2012 Trial Tr. 1850:8-1851:2

Q. You decided that back here in 2005-2006; correct, sir? A. Uhm, it would have been 2006, mid-2006, I guess. Something like that. Q. And, in fact -A. Actually -- wait, wait. Actually, I think that would -would have been more like early 2007.

76

Google Knew Sun Expressed Concerns About Android

From: Andy Rubin To: Barry Schnitt Sent: November 14, 2007

Sun: Were really interested in working with Google to make sure developers dont end up with a fractured environment. Rubin: This is a touchy subject.

TX 180 at pp. 1-2

77

Google Tried To Conceal Its Use Of Java From Sun

From: Andy Rubin To: Dick Wall Sent: March 24, 2008

1) Are we able to answer direct developer questions about Android at the booth? Yes. One-on-one only, please.
2) Can we demonstrate the tooling, emulator, developer environment, etc? Yes, one-on-one only please, where you know exactly who you are talking to. Please dont demonstrate to any sun employees or lawyers.
TX 29 at p. 1
78

Google Knew Harmony Was Not Licensed

From: Bob Lee To: Eric Schmidt Sent: May 30, 2008

Sun puts field-of-use restrictions in the Java SE TCK licenses which prohibit Java SE implementations from running on anything but a desktop or server. These restrictions prevent Apache Harmony from independently implementing Java SE (Harmony cant put those restrictions on their own users and still Apache license the code) not to mention Android (though thats water under the bridge at this point).

Schmidt responded: Im not surprised by Suns position.

TX 405 at p. 1

79

Google Saw Litigation Coming Because Of Its Use Of Java

From: Dave Sobota To: Tim Lindholm, Bob Lee Sent: February 19, 2009

> Proposal: > - Google buys the rights to Java from Sun (patents, copyrights, etc) > > Good for Google: > - Our Java lawsuits go away

TX 326 at p. 2

80

Google Knew It Faced Java Lawsuits

Q. Now, there came a time when Google was sufficiently worried about being sued that it thought about buying all the rights to Java; correct, sir? A. Yes.
Eric Schmidt Google Chairman and Former CEO April 24, 2012 Trial Tr. 1559:20-23

81

Google Tried To Avoid Discussions With Sun

From: Tim Lindholm To: Dan Bornstein Sent: Apr. 29, 2009

We really dont want to inadvertently stir anything up for Android I suspect we should step away, and only respond further if Sun chases after us.

TX 1029 at p. 1

82

Google Knew Sun Never Approved Its Copying

May 2008 November 2008

Google employees Remove j-word from everywhere.

TX 104 March 2008

Additional license negotiations with Sun.

TX 1002 February 2009

Rubin writes dont demonstrate to any sun employees or lawyers

November 2007 TX 29

Buy Java -Java lawsuits go away.

TX 326 April 2009

After SDK, Rubin writes Sun situation very touchy.

TX 180
2007 2008

Discuss Android if Sun chases after us.

TX 1029

2009
83

Google Never Said In Discussions With Oracle That It Did Not Need A License
Q. Did Mr. Eustace express in any of your communications, if at all, that Google did not need a license for Java because someone else at Sun or Oracle had approved of Java and Android? A. No, he never said that. Q. Q. Yes. In your discussions with Google representatives, to what extent, if any, did anyone ever say that Google did not need a license for Java because Mr. Schwartz had indicated that Sun had no objections? A. Nobody said that.
84

Safra Catz Oracle President and Chief Financial Officer April 27, 2012 Trial Tr. 2316:5-9

Hasan Rizvi Oracle Senior Vice President of Development April 26, 2012 Tr. 1942:22-1943:1

Google Still Needs A License

August 6, 2010 From: Tim Lindholm To: Andy Rubin

What weve actually been asked to do (by Larry and Sergei) is to investigate what technical alternatives exist to Java for Android and Chrome. Weve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.

TX 10

85

Google Still Needs A License

August 6, 2010 From: Tim Lindholm Were Rubin To: Andyyou aware

"Q. in or about August of 2010 that Larry and Sergey had asked Mr. Lindholm What weve actually beendo this? do (by Larry and to asked to Sergei) is to investigate whatwas aware at the time that A. I technical alternatives Eric Schmidt exist Chairman for Android and Chrome. Weve been Google to Java we were thinking about what to and Former CEO over 24, 2012 a bunch of these, and think they all suck. We April do." Trial Tr. 1465:21-24 conclude that we need to negotiate a license for Java
under the terms we need.

TX 10

86