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McNealy & Schwartz Testify for Opposite Sides in Java Trial
As in all jury trials the decision could come down to personalities

Former Sun CEO Scott McNealy, an off-again-on-again buddy of Oracle CEO Larry Ellison, testified for Oracle Thursday in its infringement suit against Google and Android.

His surprise appearance - in the middle of Google's laying out its copyright defense - was used to scotch testimony given minutes before by his pony-tailed successor at Sun Jonathan Schwartz who testified for Google. (It's just so utterly Sun.)

As in all jury trials the decision could come down to personalities.

From the industry's point-of-view it's the first - and long-overdue - time McNealy has publicly butted heads with Schwartz whose appointment as Sun CEO is at least as unfathomable as why HP ever let Mark Hurd go.

Schwartz was on the Google witness list from the beginning. He basically testified that Sun didn't think Android infringed, conflicting with McNealy's testimony that - as a matter of clear corporate policy - Sun didn't tolerate incompatible versions of Java (like Android) whether they were called Java or not because write once, run anywhere was Java's whole value proposition and anything less would have been bad economics for Sun, hence the Sun license agreements.

Jonathan said Google was perfectly free to use Java and its APIs to build Android and would only need a license to use the Java coffee cup trademark (which, as I recall, used to mean compatibility). He claimed Android chief and Google SVP Andy Rubin inflated Google's need for a Java license. It was only true for products that wanted to be called Java.

He said he had hoped Google would negotiate a license and decided not to sue Google "because we didn't feel we had any grounds." But eventually Jonathan had to admit to Oracle counsel Michael Jacobs that his position was based on a business strategy of trying to attract as many people to the Java tent as possible not sound legal advice. Schwartz's examination eventually devolved to Jacobs asking him if he was fired when Oracle took Sun over because he had run Sun into the ground.

Out of Jonathan's earshot McNealy confessed on the stand to not reading his blog. Google has tried to make much of the fact that Schwartz publicly lauded Android when it arrived (Oracle tried to scrub his blog postings). Scott told the jury that Sun's corporate policy on blogs was that they were personal, not corporate statements. Schwartz described his blog as official.

Google sought to devalue McNealy's testimony by getting him to admit he was a personal friend of Ellison and once called him a "national economic hero." By all accounts, McNealy retorted, "That's correct. Anybody who pays that much in taxes is a national economic hero."

Scott was also asked how much he made off the Oracle-Sun merger. His estimate: about $150 million-$200 million. (He owned about 2% of the company from time immemorial.)

Sun, of course, developed Java before Oracle bought Sun two years ago. A swat of the old Java engineers now work for Google and some of them helped develop Android. Some of them have been on the witness stand.

Google chairman Eric Schmidt, who also used to work at Sun under McNealy and had a lot to do with Java there for a while, testified Tuesday that Google didn't need a license for the parts of Java it used in Android and that Sun didn't demand it take a license when Android was announced in 2007.

In 2005 and 2006 Sun and Google discussed a partnership to co-develop Android that would have required Google to license Java source code. Schmidt said Sun wanted $30 million-$50 million to boost its dwindling revenue.

He said McNealy "understood the benefit of having a billion users. I took that to mean he wanted money.

A February 2006 e-mail was produced in court in which McNealy said of the proposed partnership, "I'm worried how we are going to replace the revenue this is likely to submarine."

McNealy was willing to take a "risk with Java" to develop a purely open source smartphone stack, "I just need to understand the economics," he wrote.

Well, the partnership never happened, Google supposedly built Android from the ground up with none of Sun's proprietary IP, and by the time it was announced in 2007 Schwartz was CEO of Sun and publicly congratulated Google for Android.

However, a Schwartz e-mail also produced in court said, "Sun is ready to embrace Google's innovation. We are not willing to cede complete control of the management... for key components of its stack."

According to Schmidt, "At the highest level, the core issue had to do with control," not money. "Sun's view was that they wanted much tighter control."

"We would have paid simply to resolve it," Schmidt said. "The money wasn't as important as this question of making a successful platform."

After watching the Twitter feed from the courtroom Thursday, FOSS Patents waded in to observe that Schwartz telling the jury how "open" and open source Java was supposed to be has nothing to do with copyrights.

If Sun wanted Java APIs to be freely available it would have used a "permissive" license like Apache's. Instead it used the GPL, which - because it's copyleft - only means anything in terms of copyright.

The blog says Apache "created Harmony, a Java implementation it chose to publish under its own license, but without a license from Oracle/Sun" and "this means that anyone who incorporates Harmony [like Google did with Android] into his software still needs a license from Oracle/Sun....If it's not copyrightable, then there's nothing that any open source license can do to make it more free or more open: in that case, it's simply not protected and, therefore, not subject to any license, even if someone says he licenses it under a given license. Copyleft can only attach itself to copyright. You can't put (or get) non-copyrightable material under a particular license any more than you can nail together water."

Oracle says there are only "two acceptable ways to use its Java IP: on GPL terms, or by licensing the essential IP for a fully compatible implementation (be it a ‘clean room' implementation [which Google doesn't have] or one based on Java code licensed on commercial terms). In other words, Google would always be free to put all of Android under the GPL and incorporate Oracle's (Sun's) GPL'd code under the terms of the GPL - but so far that's not what Google has done, nor is there any indication that it wants to do this in the future. That's why Google needs a commercial license, but it doesn't have one, and that's why the ongoing trial is taking place.

"The Android team over at Google knew more about Sun's Java business model than Sun's Jonathan Schwartz today claimed to know when he portrayed his business strategy as one of just giving the thing away to build a ‘big tent' (which wouldn't change the terms of the licenses under which Java was published, regardless of whether or not this was truly Sun's strategy for sustainability)."

See www.fosspatents.com/2012/04/open-sourcing-of-java-and-api.html.

About Maureen O'Gara
Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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