It's a day packed full of legal fun with Google's Executive Chairman Eric Schmidt following immediately on the heals of Andy Rubin's testimony in the Oracle v. Google trial. We're not sure exactly what the focus of Schmidt's testimony will be, but we imagine Oracle will continue its tactic of looking deeper into the intent of those at Google who ultimately gave the green light to use Java and its APIs in the Android operating system.
Once again, Bryan Bishop is live in the courtroom to give us the details as they happen, so here we go (timestamps in Pacific Time):
12:05 pm: And after another sidebar with the judge, Eric Schmidt is excused. And guess who's back? Andy Rubin! We'll be switching to our Andy Rubin testimony post for this, you can find it right here.
12:02 pm: Speaking of, Van Nest is done and Boies is back up. Brings up an email from Andy Rubin in which Rubin says "Sun gets to say who they license the TCK to." Schmidt says he doesn't recall hearing that from Rubin. Oracle is done with Schmidt.
11:59 am: By the way, Oracle's attorney questioning Schmidt is David Boies. As in, Al Gore's attorney during a little Supreme Court case called Bush vs. Gore.
11:59 am: Judge Alsup telling Van Nest that this whole discussion is coming out of Google's time. Van Nest: "Whoa whoa whoa, if you'd told me that I would've objected!" Big laughs all around — the jury clearly loves Van Nest.
11:50 am: Van Nest now showing off an email in which Vic Gundotra suggested the full rights to Java would cost $100m. Google considered paying but didn’t think Sun would go for it.
11:50 am: Did anyone say your code was copied before this lawsuit? "No." And that's been avail since 2008? "Yes, I'd say about 3-4 years." Cute, but honestly — who else would say Android was copied?
11:49 am: Finally, a little more detail: the clean room was needed so Google could make source code public, other people could develop with it, find bugs, etc.
11:47 am: That was more like "answering" the question — Schmidt really avoided the core of what the judge was asking about the need for a clean room if Google didn't need a license. "I would want to make sure that my team did not use any of your knowledge of any printers and stuff like that. All I'm saying is print — 'print 5.'"
11:44 am: Schmidt answering the question, drawing the distinction between the API name and code used to do the work. "The difference between calling "print" and the code that actually does it."
"The difference between calling "print" and the code that actually does it."
11:43 am: Judge Alsup breaking in, asking Schmidt how he can reconcile needing a clean room but not needing a license. Van Nest says he'll address the issue in further questioning.
11:42 am: Asking Schmidt if Google needed a license — Oracle objects, saying it's hearsay because Schmidt isn't a lawyer. Sustained. Same objection to similar question about license for core Java libraries.
11:40 am: Did Google need a license of any kind to use Java? "Google did not." Why not? "Well for many reasons. In general languages are usable because they're... languages are usually in the public domain or they've been released. Sun's goal was always to make it as available as possible."
11:36 am: Oracle's done, and Google's Van Nest is back up.
11:36 am: That said, the jury is still totally engaged, responding to the drama of this. One guy at the end has his eyes closed.
11:35 am: Part of Oracle's problem here is that they're out of time for the day, so they're rushing from email to email and failing to score any individual points.
11:32 am: Oracle now talking about the required Java licenses. Schmidt says he doesn't know what the TCK license is, prompting an incredulous ""Really, sir? Test compatability license?" Schmidt: "It's been over twenty years. Things change." Ouch.
"It's been over twenty years. Things change."
11:30 am: There's no way to put this lightly, but it's very clear that one person involved in this exchange is much, much smarter than the other.
11:29 am: Oracle now asking Schmidt if he's ever heard of a company called Noser, which did some work for Google — reputed to have a great engineering team and a shady business team. Schmidt hasn't heard of them. There were snickers from the gallery at the question; it's a weak argument for Oracle.
11:27 am: The friendly, engaging Eric Schmidt from before is gone. He's staring down Oracle's attorney. Locked on.
11:25 am: You copied the 37 Sun Java API specifications, correct? "We used the interface names, which is how you do this, and then used our own implementation of the services." Are you saying all you copied was the names? "My understanding..." Oracle cuts him off and asks for a yes or no. "Yes." Do you want to explain? "Maybe we should continue to the next question." Not a give or sign of weaknesses here, Schmidt's just over it.
11:24 am: Schmidt is getting noticeably impatient with Oracle's questions — and with how Oracle's attorney is using the word "interface," which Schmidt clearly doesn't agree with. A nerd to the core, that Eric Schmidt.
11:22 am: Are you saying you were told that you needed all 37 APIs to make Android useful? "I wasn't involved in a tech conversation with that level of detail, that would have been up to those under Andy Rubin, including Andy Rubin." It's hard to see where Oracle is going with this.
11:14 am: Moving on to APIs now. Are you aware of companies that use the Java programming language but none of Sun's APIs? "As far as I know every use of Java uses APIs that were provided by Sun as part of Java." Did Google try to explore any means to use Java without Sun APIs? "I'm not aware of any. The language without the interfaces is not useful in my view. In my understanding. And you need a basic set of APIs to make it useful and that was our plan." Oracle either just set a very clever trap or blundered into letting Schmidt repeat Google's core message.
11:14 am: Oracle's attorney is pulling up a 2007 ZDNet article entitled "Sun concerned Google's Android will fracture Java." Schmidt says he has "no recollection" of it.
The juror's heads are snapping back and forth like they're watching a tennis match
11:11 am: Are you aware of any other companies using Sun APIs without approval from Oracle? "I'm not aware." Are you aware that Google does not have a license? "That is correct." This is rapid-fire — the juror's heads are snapping back and forth between Oracle's lawyers and Schmidt like they're watching a tennis match.
11:06 am: Oracle hammering Schmidt on the fact that there was no documentation of Sun's approval: Was it your view that Sun before acquisition was good with what Google was doing? "It was my opinion ... at the time Sun management" was okay with it. Did any particular person tell you that? "I spoke with Jonathan Schwartz a couple of times in the preceding years."Did anybody else tell you? "No." How did Schwartz tell you? "Orally, as I recall." Was anyone present? "Not to my knowledge, No." Where? "I don't remember the specifics... at least once in his office."
11:04 am: Oracle getting right into whether Schmidt really knew Sun was okay with Android. "I got the impression Mr. Schwartz was comfortable with what we were doing... we had a couple conversations." Oracle pointing to a specific 2008 meeting in the Sun cafeteria, asking Schmidt if Schwartz said he was comfortable with Android then. "Yes."
11:01 am: And we're back. Oracle's lawyers have a lot of work to do, both in discrediting Schmidt's previous testimony and connecting with the jury the way Van Nest has been able to do.
10:47 am: That was a bravura performance by Robert Van Nest and Eric Schmidt. We'll see how Oracle deals with it on re-cross after a short break.
A bravura performance by Robert Van Nest and Eric Schmidt
10:45 am: And we're back for just a few more questions, says Van Nest. Are APIs blueprints? Schmidt: "No, APIs are the way you make something happen... the way you do that is completely up to the other side of the interface." How long have you thought that? "For as long as I've been a computer scientist, so 40 years." And with that, Google rests.
10:44 am: Schmidt has reverted to form a bit while this sidebar goes on: he's leaning back in his chair, methodically shuffling his stack of papers. Kind of like a Bond villain.
10:40 am: Google's Van Nest has approached the bench for a sidebar to proffer additional evidence. There's whispering all over the place. Van Nest came off as quite a badass during that last line of questioning, firing off questions about whether Schwartz expressed any disapproval or concern about Android and receiving a string of "He did not" answers from Schmidt. The jury is eating him up — he's nailing the theatrics of this.
10:38 am: Schmidt saying lots of other companies were using Java at the same time, including IBM, which had a large Java program.
10:35 am: Back into the meat here — Schmidt is saying he continued to speak with Schwartz after the license discussions, and Google remained partnered with Sun. Schmidt says the two spoke "every six months," and that Schwartz did not express concerns about Android. "My understanding was that what we were doing was permissible." Further, Schmidt says "I was very comfortable with what we were doing was both legally correct given the licenses or lack of licenses at the time."
"I was very comfortable with what we were doing was both legally correct given the licenses or lack of licenses at the time."
10:33 am: Another objection — Oracle says another email between Andy Rubin and Schmidt is inadmissible hearsay. Alsup sustains. Van Nest not trying to get around this one, he's moving on.
10:32am: All of that for an email about Android's open-source license. Schmidt explaining that anyone can take Google's software and do what they like with it.
10:27 am: Oracle's objection was sustained, and we're back to action — only to have Google's Robert Van Nest ask enough establishing questions to get the email admitted for a limited purpose. Wild lawyer maneuvering here.
10:26 am: Schmidt's now been on the stand for nearly 90 minutes, vastly more than any other witness. Google's really hanging its hat on his testimony — and for good reason, since it has all the elements of Google's core argument: Java was free, our intent was pure, Sun knew what we were doing. The question is whether the jury trusts Schmidt as much Google hopes it will.
10:23 am: Objection! Oracle says one of Google's exhibits is inadmissible hearsay, and we're having a sidebar so Judge Alsup can examine the document.
10:21 am: Schmidt now going over previous Google / Sun partnerships: a Java toolbar, StarOffice. Schmidt says he continued to do appearances with Schwartz, and discussions around Android continued. "Jonathan's core view was to make sure that Java would be successful and he was happy to have another partner."
"Jonathan's core view was to make sure that Java would be successful and he was happy to have another partner."
10:20 am: A lot of this is a repeat from what Google showed in its opening arguments, but it's obviously much more powerful with Schmidt sitting there in the witness box reading his own email.
10:16 am: Now looking at three emails between Schmidt and Jonathan Schwartz around the time of the Android launch. Schwartz: "Let us know how we can help support your announcements next week. We're happy to do so." More damningly, Schwartz wanted to keep Java united. "A few of your alliance partners have reached out to us to build a 'separate but equal' effort - we would love, having seen this movie a few times before, to have one big tent, rather than a hundred little ones... and we can obviously bring a global Java community to the party."
10:16 am: It was Andy Rubin's idea to call hardware manufacturers and get them to endorse Android, according to Schmidt.
10:11 am: Schmidt seems like a totally approachable, normal human being — nothing like the mad genius we've seen giving speeches about robots in the future recently.
10:09 am: Walking through the familiar "a language isn't very useful without APIs" argument every Google employee has made so far. Talking about Android's open-source license: "We're trying to get as much spread and as many users as possible. For example today Android has users we don't know and haven't heard from," which Google finds very exciting. Cites the Kindle Fire as an example.
10:07 am: "It was my understanding that it was completely fine. that Sun had made the language available, and was available in 2006." Jonathan Schwartz "absolutely" knew what Google was doing, says Schmidt.
Sun CEO Jonathan Schwartz "absolutely" knew what Google was doing, according to Schmidt
10:06 am: Was the Android platform built using the Java programming language? Parts of it? "It implements the language and implements the APIs but does not use the Java source code."
10:04 am: The first slight hedge from Schmidt. ""This was done by a team that did not come from Sun, it does not use Sun's intellectual property... as I was told." A very intentional pause before that last part.
9:59 am: "We began a clean room implementation. A clean room implementation is what was developed, and uses a completely different approach internally" than Java. Schmidt says he was "surprised" that the Dalvik team was able to ship an interpreter that worked, but it did. This decision was made after it was clear negotiations with Sun wouldn't go anywhere.
Sun wanted $30-50m for a Java license
9:59 am: However, Schmidt's email also said that "Google should have the final say as to which Sun technology is contributed to the open platform since Google is writing the check. In absence of a payment from Google to Sun I could imagine a much more equal role for Sun." Sun wanted $30-50m for a Java license, says Schmidt. "We would have paid it," but issues of control were more important to Google.
9:55 am: Showing an email exchange between Schmidt and Schwartz after Schwartz became CEO at Sun. Schmidt congratulates him on promotion and says "I got your message about a potential partnership between Google Mobile / Android and Sun Java. I think we all agree this is likely to be an immensely large space and a good deal for both companies." Furthermore, Schmidt told Schwartz that "I am okay with each party hosting and managing their own contributions - an obvious compromise given that each company has their favorite license which governs their respective contributions." According to Schmidt, this email represented the "compromises" he and Andy Rubin were willing to make.
9:53 am: The courtroom is deadly quiet except for furious typing. The jury is leaning forward in their seats and some are taking notes. It feels like Google is systematically taking down all of Oracle's arguments with this line of questioning.
9:51 am: Google now showing an email from Jonathan Schwartz to Schmidt, McNealy, and Brin, saying "My team has alerted me that our negotiations to jointly create a Java-Linux mobile platform are at an impasse," but that Schwartz believed "this project is an important project for both of our companies. We're at a critical stage in the industry where we still have a chance to successfully create an open platform that can target multiple consumer devices." Schmidt took that to mean Schwartz agreed with him, he says.
9:50 am: The email has a PS from McNealy asking if Schmidt has tried out a Sun T2000 server. Funny!
9:49 am: McNealy replied by saying he was "worried about how we're going to replace the revenue this is likely going to submarine," which Schmidt says he interpreted as "we want money from you."
9:49 am: Google now showing an email exchange between Schmidt to McNealy, in which Schmidt mentions working together on the Open Handset Platform. "It is an opportunity for our two companies to work together to define the de-facto standard software stack" for open-source, Schmidt told McNealy.
9:45 am: Schmidt had personal meetings with Sun CEO Scott McNealy: "He'd always try to sell me Sun servers which we didn't need."
"He'd always try to sell me Sun servers which we didn't need."
9:45 am: Google now establishing that Sun knew exactly what was going on with Android. Schmidt saying Google talked to Sun "many times," and that he personally spoke to people at Sun. "My going-in position is that 'you're better of working with everyone else, so you're better off talking,' so they won't be surprised by anything you're doing."
9:41 am: "This was before the iPhone was announced, and the whole iPhone revolution occurred." Was the best way to proceed always clear? "No, it was a process of discovery."
9:37 am: Schmidt saying the goal of Android was to "build a platform that would be free and clear of some of the other licensing restrictions that were slowing down the industry and would provide an alternative to the key players." Of particular concern was Microsoft: "At the time we were quite concerned with Microsoft's products, it's hard to relate to that now." Burn!
9:35 am: Schmidt saying that while he was CEO "on anything really important the three of us would all agree but I was the primary owner of the [Android] strategy." Larry Page and Sergey Brin were "very interested in mobile and mobile operating systems," but only acquired Android with a "vague idea" of what to do with it. Schmidt says that was "typical" of Google at the time.
"At the time we were quite concerned with Microsoft's products, it's hard to relate to that now."
9:34 am: Schmidt now humorously describing his role at Google with Larry Page as CEO: "I travel around giving a lot of speeches, dealing with governments, that sort of thing."
9:33 am: Google now directly attacking Oracle's recent arguments by asking if APIs are "blueprints." Schmidt: "An API is literally a specification for an interface. What's on the other side of the interface can be anything."
9:32 am: Asked how Sun was planning to make money if the language and APIs were free, Schmidt says there was a license "with moderate fees," or people could build their own Java.
9:31 am: Schmidt saying he was "the executive in charge" of Java at Sun, and "the language itself is not useful unless you can make something happen," which is what the APIs do. Google's clearly trying to establish that Schmidt designed Java at Sun to be open-source and include the APIs.
9:28 am: Google is hammering on the open-source nature of Java and Schmidt's role in that. Schmidt: "Put the software out there and let the people modify it any way they want." Contrasting with Microsoft's closed nature, Schmidt says, "You could simply make your own version of Java. You couldn't call it Java, but you could do whatever you wanted with it."
9:27 am: Schmidt on building Java at Sun, where he was the CTO: "We used to say it was building a new religion, a new way of thinking."
"We used to say it was building a new religion, a new way of thinking."
9:24 am: For whatever reason the jury is now totally engaged with Schmidt — they're all facing him like sumflowers tracking the sun. Either they really hate Oracle's attorneys or they really love Google's Robert Van Nest.
9:23 am: And with one more exhibit, Oracle rests. Google's calling him right back to the stand, though. Judge Alsup booming "Welcome back!" Everyone laughs. This is major courthouse humor.
9:20 am: The jury seems to have settled in a little, but they're still very intensely focused. Except for one, who seems fairly checked out and is staring into space with only periodic glances towards Schmidt.
9:18 am: Oracle showing Schmidt a presentation that says Google needed a license from Sun, Schmidt adamant he wasn’t there for it. "I do not recognize the document."
9:16 am: Oracle keeps whipping out exhibits and then switching to other exhibits. It's strange, and a little distracting. Now they're on to the infamous Lindholm email in which he says all the alternatives to Java "suck." Schmidt says he never saw it. "I was aware at the time that we were thinking about what to do. I think this email is in response to that, I don't know the details."
9:15 am: Showing Schmidt a presentation made to him that details a potential Google / Sun partnership. Slide says the deal is "critical to our open source handset strategy" and "dramatically accelerates our schedule."
9:13 am: Schmidt says one of those sources was Apache. "Did you know Apache was not authorized for use on mobile devices." Schmidt: "I did not know the technical details of the software solution that was used. I did not know any of the details of the licensing arrangement... other than it was available to us."
9:13 am: Oracle now showing a memo from Andy Rubin saying Google had "JCM but not libraries... this is still a hotspot." Asking if there was a time Google needed libraries or APIs for Android. "Of course," says Schmidt. "Because we built them ourselves or got them from other sources."
9:07 am: Oracle now showing Schmidt a number of internal memos, trying to nail down what meetings he was at. Schmidt doesn't remember, even when shown notes. "These would be notes taken by some note-taker," he said in response to one exhibit.
"These would be notes taken by some note-taker."
9:09 am: The jury is concentrating really hard on Schmidt — they aren't reacting to him as they have with other witnesses. They clearly don't love him the way they've loved some of the engineers.
9:07 am: Schmidt: "Yes, volume means more users. So definitely more customers... The vast majority of google's revenue today comes from search revenue, so the reason to have something like Android is to have people do more searches. That's how we pay for Android."
9:05 am: Showing a slide that says Android would "disrupt the closed and proprietary nature" of Microsoft and Symbian. Schmidt verifies that was a goal, and that Google wanted to beat Microsoft and Symbian to "volume."
9:05 am: Question: "Revenue you receive from Android paid for Android and much more?" Yes, says Schmidt.
9:04 am: This is about as calm as Schmidt's ever been. Android "absolutely" results in more search revenue for Google.
9:01 am: Question: "Google benefits from having more control of user experience and built-in google apps" Correct? "Yes."
9:00 am: Handing Schmidt a CLDC presentation email; "GPS Android 8/05." Asking Schmidt if he was at that presentation. "I believe so."
8:59 am: They're swearing in Eric Schmidt.
We're covering the testimony as it comes in live, so hit refresh for updates!