Apr 30, 2012 (11:04 AM EDT)
Oracle Insists Google's Clean Room Was Dirty

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Oracle v. Google: Tour The Evidence
Oracle v. Google: Tour The Evidence
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In the San Francisco courtroom where Oracle has been arguing for the past two weeks that Google's Android operating system infringed Oracle's Java copyrights and patents, it was quieter than usual on Monday. The two sides were ready to deliver their closing arguments in the copyright phase of the trial. All they needed were a judge and jury.

Judge William Alsup arrived promptly and proceeded to address the objections to the judge's proposed jury instructions that the two sides filed on Friday. He denied most of the objections.

The judge then conferred with a juror and the lead attorneys from both sides. The juror wanted to be excused from the case because she claimed attendance presented a personal hardship. The juror balked from discussing her issues with the judge in open court. After a sidebar conference, she returned to the jury room without comment from the judge. Presumably, the judge persuaded her to remain.

[ Oracle, Google Trial: Who Wins Round One? ]

The judge then thanked the public and the press for their silence during the proceedings and asked for continued silence as he read the jury instructions and as the attorneys delivered their closing arguments.

Silence is important because, he said, "This is the one moment that the jury learns the law."

Oracle attorney Michael Jacobs began his summation by thanking the jury for serving and by acknowledging "the evidence has sometimes been complex, technical."

The basic question, he said, is did somebody use another company's property without permission. And Jacobs' contention is that it's vital to protect such property.

"Who would sit down and write a good book or compose a great song or write a great API if someone could just rip it off?" he said.

Referring to Google's so-called clean room effort to replicate Java's APIs in Android, Jacobs said, "The clean room was very dirty."

Jacobs argued that Google wanted Sun to throw away its standard Java license. Google SVP Andy Rubin acknowledged, he said, "that what he was asking Sun to do was change its business model."

Jacobs insisted that the trial so far has been mostly about Google's excuses. And he did his best to dismiss one such excuse, a blog post by former Sun CEO Jonathan Schwartz that endorsed Google's Android. "A blog post is not permission; a blog post is not a license," he said.

Jacobs proceeded to address whether Google's use of the structure, sequence, and organization of the 37 Java APIs at issue qualified for the fair use defense against copyright infringement. Whether infringement qualifies for fair use depends on four factors: the purpose of the copying; whether the copied work is creative; quantity and quality of the copying; and the effect on the market for the original work.

Jacobs cited examples of fair use: criticism, comment, news reporting, teaching, scholarship, and research.

"What Google did was take the APIs … from our code and put it in their code," he said. "What Google did doesn't even fit within the spirit of those examples."