McNealy & Schwartz Testify for Opposite Sides in Java Trial

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.

Schwartz was on the Google witness list from the beginning. He deep down 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 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. 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 in the long run 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 in the end devolved to Jacobs asking him if he was fired when Oracle took Sun over because he had run Sun into the ground.

The stand to not reading his blog

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 openly lauded Android when it arrived. 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.

Sun, clearly, developed Java previously 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 as well used to work at Sun pursuant to this agreement McNealy and had a lot to do with Java there for a during, 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.

February 2006 e-mail

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 openly congratulated Google for Android.

The blog says Apache created Harmony

The blog says Apache "created Harmony, a Java implementation it chose to publish in accordance with its own license, however without a license from Oracle/Sun" and "this means that anyone who incorporates Harmony [like Google did with Android] into his software nevertheless needs a license from Oracle/Sun....If it's not copyrightable, at that time 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, to sum up, not subject to any license, even if someone says he licenses it pursuant to this agreement a given license. Copyleft can only attach itself to copyright. You can't put non-copyrightable material pursuant to this agreement a particular license any more than you can nail at the same time 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. That is, Google would always be free to put all of Android pursuant to this agreement the GPL and incorporate Oracle's GPL'd code pursuant to this agreement the terms of the GPL - however so far that's not what Google has done, nor is there any indication that it wants to do this hereafter. That's why Google needs a commercial license, yet 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'."

Maureen O'Gara the most read innovation 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 innovation 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