Bat mitzvah story may have scored points for Oracle in Android copyright trial against Google

31 January 2017 9:57am

20 May 2016. By Mike Swift.

Oracle CEO Safra Catz, in her testimony in the Google-Oracle trial this week, likely painted a vivid picture that may well stick out in the minds of the jury, among the many hours of technical testimony they have heard since the start of the copyright trial over the Android mobile operating system.

Catz, in testimony on May 17 in San Francisco, described an encounter with Google’s general counsel, Kent Walker, at a Silicon Valley bat mitzvah in March 2012. Oracle had sued Google in August 2010, alleging that the search giant infringed Oracle’s patents and copyright when it copied elements of the Java programming language to help build Android. An initial trial between the companies was just two months away at the time.

Walker, according to Catz’s sworn testimony, came up to her at the party and said: “ ‘You know Safra, Google is this really special company and the old rules don’t apply’ ” to the search giant.

“And I immediately said: ‘Thou shalt not steal.’ It’s an oldie but a goodie,” Catz said. It was a startling story that Catz did not describe when she testified at the first Google-Oracle trial in May 2012, and again invoked a theme Oracle has tried to harp on about Google’s business ethics during the 2016 re-trial (see here).

Google has challenged the accuracy of Catz’s bat mitzvah account several times since her testimony. But the search giant’s legal team has not raised those objections with the jury in the courtroom, meaning the Oracle executive’s account was left unchallenged for the jurors when evidence presentation ended on Thursday. Closing arguments are scheduled Monday morning.

On both Wednesday and Thursday, US District Judge William Alsup suggested that Google could put Walker on the witness stand if it wanted to dispute Catz’s account. But while Google co-founder Larry Page testified Thursday, saying Google believed it was doing nothing wrong by copying the 37 packages of Java application programming interface, or API, code into Android, the search giant elected to not call Walker.

“I noticed that he didn’t come,” Alsup said, when Google lawyer Robert Van Nest again disputed the accuracy of Catz’s bat mitzvah story on Thursday.

The bat mizvah won’t come up in closing arguments on Monday. Alsup told both sides Thursday that neither Google’s Van Nest nor Oracle lawyer Peter Bicks could refer to any events that happened subsequent to the filing of Oracle’s copyright lawsuit in 2010; otherwise, the judge said, he would be forced to let the jury know the full circumstances of what happened in the lawsuit that was filed in 2010.

“I’m not saying it’s not legitimate evidence,” Alsup said of Catz’s statement.

That would include the 2012 trial, where the jury found that Google did not infringe Oracle’s patents, but did infringe its copyright. That jury hung, however, on the question of whether Google’s copying was legal under the doctrine of fair use. Alsup subsequently ruled that the structure, sequence and organization of the Java APIs could not be copyrighted. But he was reversed by the US Court of Appeals for the Federal Circuit, which said in 2014 that the Java APIs are subject to copyright protection.

Alsup has suggested several times during the trial that Google and Oracle should give the jury the full story about the 2012 trial. But neither side sees an advantage in adding the full history of the case into the 2016 jury’s deliberations on the more focused question of whether Google’s use of the Java APIs was fair use. Bicks told Alsup Thursday that he would not mention the bat mitzvah story in his closing on Monday, “as much as I would like to.”

Oracle clearly feels it has already scored the necessary points it needed on the bat mitzvah story. It is an eye-opening account, given Walker’s veteran status as a widely respected and savvy general counsel. His in-house legal department has been a proving ground for many lawyers who have gone on to become the top lawyers at prominent Silicon Valley companies such as Pinterest and Dropbox, and even to lead the US Patent and Trademark Office.

That Walker would make such a loaded comment that the rules don’t apply to Google, just two months before Oracle and Google were set to meet in a high-profile trial, is surprising to say the least. But in the minds of the eight women and two men on the jury, there is no reason to doubt now that he did.