Oracle Says Google Didn’t Play Fair, Wants Third Trial (Oh God)
"They were perpetrating a fraud on the jury!” said an attorney for Oracle in court.
Oracle's Larry Ellison. Image: Oracle/Flickr
Oracle is definitely not mad about losing in Oracle v. Google (again). The multibillion dollar corporation is definitely not beet red and nude right now, and actually, it finds all of this funny.
The company asked for (and lost out on) a $9 billion judgment against Google for allegedly infringing on Java Standard Edition when it created Android. This was the second trial in a six-year-long case that has already gone up to a court of appeals and back down again. Oracle is expected to appeal again.
Meanwhile, Oracle showed up in court on Wednesday to ask for a new trial. It's easy to say that it's just out of bitterness, but truthfully, Google did something really bizarre during the trial and now it's coming back to bite the company.
While highly-paid attorneys in a courthouse in San Francisco were busy waving their arms and pointing at illustrative file cabinets, their client was over in Mountain View hosting Google I/O, a giant trade conference for developers. Even as a massive copyright trial over Android (every version up to Marshmallow) loomed over the industry, Google went ahead and announced the next version of Android—Android Nougat.
Oracle isn't mad about Android Nougat, or at least, today wasn't the day to get mad about it in a court of law. It's mad because Google announced that Google Play was coming to Chrome OS. In other words: Android apps could now run on Chromebooks.
Seriously, Google announced a brand spanking new maybe-infringement at I/O while it was still unsure over whether the last one was going to cost it $9 billion.
Why does this matter? At the same time Google announced that Android was coming to laptops, Google lawyers at the Oracle trial were off arguing that Android never harmed the market for Java Standard Edition because Android is for smartphones and tablets, and not desktops and laptops. LOL.
Here's the thing: Oracle's argument hinges on Google's supposed failure to produce documents relating to the Google Play on Chrome OS announcement. Oracle says that Google was working on this project for "months" in "secret," and that the company hid this from discovery.
Google's lawyers claim that they did indeed produce those documents: they told Oracle all about a project known as "ARC"—App Runtime for Chrome. And actually, one of Oracle's expert witnesses devoted seventeen paragraphs to ARC in his report. Oracle knew all about these developments, and just decided not to bring it up at trial.
ARC does basically what it says it does: it lets you run Android apps on Chrome OS. But it wasn't very good, and at I/O, they announced… something new? Here's what Ars Technica had to say about it back in May:
The real shocker here is that this release of Google Play on Chrome OS is not based on ARC. Zelidrag Hornung, the engineering director of Chrome & Android, filled us in on the details: "We have redone this completely differently. There are no connecting points between the two projects (ARC and today's announcement) from an implementation perspective." ARC wasn't good enough, so Google started over from scratch.
"This was a shock to the industry and to us," said Oracle attorney Annette Hurst to Judge William Alsup. "Ars Technica, the premiere publication in this industry, called it a shocker. A shocker."
"For the record @Oracle, I called Android on Chrome OS 'a shocker' because the underpinnings weren't what I expected," Ron Amadeo, the author of that article, tweeted today.
Hurst argued that when Google's expert witnesses said that Android was for phones and tablets, rather than desktop (like Java Standard Edition), they lied. "They were perpetrating a fraud on the jury!" she said in court.
Is ARC all that different from Google Play on Chrome OS? Maybe?
Is ARC so different that Oracle is entitled to a new trial? ¯\_(ツ)_/¯
The really weird thing that's going on here is that in the four years since the first trial in 2012 (which resulted in a hung jury with respect to the fair use issue—hence the second trial), Google has been up to all kind of stuff. There's Android TV. There's Android Wear. There's Android Auto.
Perhaps because he was faced with the very grim prospect of explaining Java and application programming interfaces to a jury of laypeople, the judge excluded all of these later devices, and told the parties to limit themselves to phones and tablets from 2012. But the trial was about versions of Android all the way to Marshmallow, which was released in September 2015. The whole thing is very awkward!
It's so awkward that when Judge Alsup asked Google attorney Christa Anderson if Oracle was entitled to sue over Android TV, Android Wear, Android Auto, Google Play on Chrome OS and so forth, she readily said that yes, they were. Unless something changed on appeal, of course.
Oracle wouldn't just be able to sue over these inventions, it could also sue over Android Nougat. This newest version supports Java 8—and in making that support possible, Google probably reimplemented a bunch of the very same API packages that they were being sued over. Seriously, the company announced a brand spanking new maybe-infringement at I/O while it was still unsure over whether the last one was going to cost it $9 billion.
All of this might seem like a huge headache, but it gets even more ridiculous. Oracle isn't the only one dragging its feet post-trial. Google has filed for a finding of civil contempt and sanctions against Oracle, and is also asking for $3.9 million in costs. Oracle only wants to give its opponent about $975,334.32. This is all trial-related costs for things like photocopies and court-appointed experts. We can only speculate as to how much the lawyers and their own actual expert witnesses cost both sides.
Oracle and Google might be really mad, but the maddest one of them all is Judge Alsup, who is clearly sick of everyone and would very much like for this case to leave his courtroom forever. "Do you know how many Social Security claimants I can't rule on right now because you're arguing over a costs bill?" he snapped at Google's attorneys. But it's not over yet: they're all back in court on September 22nd, for the hearing on contempt and sanctions.