Google to jury: Android was built with our engineer's hard work

Android is precisely the kind of thing that fair use was intended to encourage.

SAN FRANCISCO—Google lawyer Robert Van Nest delivered a spirited defense to Oracle's accusations to a jury on Tuesday, telling them that Android was no shortcut—it was built with sweat and hard work.

"Google engineers spent several years and hundreds of millions of dollars to create Android using Google know-how," he said. "They created a brand new platform for innovation in smartphones and tablets that was beyond anything any of us had ever seen before."

Van Nest's strategy centered on a few key points. First, the Java language was open and free to use—a gift from creator Sun Microsystems to the world, he said. Sun wanted developers to take up Java and teach it in universities and schools.

As for the copyrighted APIs, they were a tiny part of the language. The 11,000 lines of code they represent are "less than one-tenth of one percent" of the 15 million lines of Android code. Later in his statement, Van Nest compared the code to the labels on a filing cabinet.

He also said Google's use of the Java APIs was "transformative," a key element in deciding a fair use case. Google used APIs from Java 2 Standard Edition, made for desktops, and combined them with 130 Android API packages to make a mobile operating system. "That's the software that runs your smartphone—the full stack, the whole thing," Van Nest said. Java's mobile edition was too weak to support smartphones.

Even more important, Sun and its then-CEO Jonathan Schwartz never objected to Google's use of Java or the APIs—and in fact celebrated them. Schwartz was a witness supporting Google during the 2012 trial, and he'll be back supporting Google again in this one.

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"If that code wasn’t in their three billion phones, not one would work."

It wasn't just Schwartz who praised Google. Van Nest played for the jury video from a 2009 presentation in which Oracle CEO Larry Ellison celebrated Android and its use of Java, saying he was "excited" and "flattered" by the use. "We’ll see lots of Java devices, some of them coming from our friends at Google," Ellison said in the video.

While Oracle described the history of smartphones as one in which Android robbed Oracle of its opportunities, Van Nest had a starkly different narrative. Android and Google had simply succeeded at a task where Oracle and Sun had failed: to build a robust operating system that could power modern smartphones.

Just as Oracle's lawyer relied on internal Google e-mails and documents, Van Nest had a few of his own.

"Our mobile java strategy is failing," read one Oracle document that he flashed on the screen. Another complained of "very limited internal expertise to make smart decisions" in the mobile space.

"Mr. Ellison figured out that he couldn't use Java to build a smartphone, and it was too late to partner with Google," Van Nest said. "That's when this claim first arose. That's when this lawsuit started."

Oracle's use of Google documents was more revisionist history, Van Nest said. They had highlighted discussions about licensing Java at Google, and Van Nest acknowledged the negotiations broke down.

But Java was licensing much more than APIs. Google could have gotten its brand, its implementing code, and much more. That's what was done by the many licensees Oracle had highlighted, like Sony, Motorola, and Nokia.

If Google had gone that route, it could have thrown together a mobile system in early 2006. Instead, it took a year and a half of engineering work to create Android from the ground up.

"Google did this themselves, and they did it the right way," said Van Nest. He continued:

Android is precisely the kind of thing that fair use was intended to encourage. It’s a leap forward to a new platform in a new market. It has allowed innovation by lots and lots of other people—developers and wireless carriers. It's become a whole community, because Google made it open and free. Now Mr. Ellison wants to shut it down and put it in his pocket. That is not fair, not right, and not what copyright was intended to allow.

In a few weeks, it will be up to a jury to decide between the two competing narratives. Google's first witness will be former CEO Eric Schmidt, who will take the stand shortly.