Google ethics also at issue in Android copyright trial against Oracle

12 May 2016. By Mike Swift.

Former Google CEO Eric Schmidt tugged thoughtfully at his chin as he sat in a witness box in a San Francisco courtroom Wednesday, watching himself describe on video Google’s business model of collecting detailed personal information about its users as a policy “to get right up to the creepy line but not cross it.”

Only Schmidt knows his thoughts as the “creepy line” video played for the jury and he waited to face an aggressive cross-examination from an Oracle lawyer over allegations that he signed off on an illegal plan to copy what Oracle says was “the heart” of its Java software into the Android mobile operating system.

The fact that Schmidt, now the executive chairman of Google’s Alphabet holding company, was forced to face privacy questions with no direct relationship to Oracle’s copyright allegations shows that Google’s broader ethics are also on trial as Oracle seeks up to $9 billion in copyright damages. Google’s lawyers unsuccessfully tried to block those privacy questions on Wednesday, and they also worked to prevent Oracle from raising competition and antitrust issues around Android during the copyright trial, which could run until June 10.

“It’s really an effort to prejudice Google and prejudice Mr. Schmidt and there’s really nothing relevant about it,” Google lawyer Robert Van Nest said Wednesday, asking US District Judge William Alsup to stymie Oracle’s “creepy line” questions.

Oracle lawyer Peter Bicks countered that how Google makes money “is central” to the copyright case, therefore Schmidt’s statements about the collection of personal information were relevant.

Alsup permitted the jury to hear Oracle’s privacy questions to Schmidt, but the judge made it clear that he thinks Oracle is wasting its allotted 15 hours of trial time by bringing up topics that don’t relate directly to Google’s copying of the structure, sequence and organization of 37 Java application programming interfaces, or APIs.

“The jury will see through that if it’s true,” the judge warned Bicks. “If you think you can score points using ‘creepy line,’ go ahead.”

Bicks did, showing the jury several minutes of a video clip of Schmidt at a 2011 conference at the Newseum in Washington, DC. In it, an interviewer did an exceptional job of putting the normally canny Schmidt a bit more at ease than he might have wanted to be in discussing Google’s data collection policies.

“We don’t need you to type at all” on your computer, Schmidt jauntily remarked, “we can more or less guess what you’re thinking about.”

Still, given the full context of the clip, in which Schmidt pointedly noted several times that Google only collects that personal information “with your permission,” the actual video seemed much less chilling than the printed transcript of his statement might have suggested. After the video played for the jury, Bicks almost immediately moved on to another line of questioning.

There’s no way to know whether Schmidt’s “creepy line” remarks will make any difference in the jury’s calculation about whether Google violated Oracle’s copyright and the doctrine of fair use when it copied the 37 Java APIs and 11,000 lines of declaring code. But Google’s intent in doing that copying is certainly a key question that Oracle wants the jurors to ponder.

If the jury concludes that Google is willing to push the “creepy line” on privacy, Oracle appears to have concluded, the panel of eight women and two men might be more likely to conclude that the search giant also cut corners on copyright.

Google also is concerned that Oracle will try to exploit that the global market power Android enjoys — the world’s most widely used mobile operating system is used in more than 1.4 billion smartphones and tablets — to portray the Mountain View, California-based search giant as a violator of antitrust laws.

Google said in an April 27 court filing that Oracle expert witness Adam Jaffe emphasized his experience in “antitrust and competition issues” in his report to the court, and suggested that Google’s use of Java was part of a plan to position Android “for market dominance” in the mobile search market.

“This is not an antitrust case, and attempts to invite the jury to infer the violation of antitrust laws is both improper and very likely to confuse and prejudice the jury,” Google said in that memorandum asking Alsup to exclude Jaffe’s testimony. The judge, however, did not agree to block Jaffe from talking about competition issues.

Android and antitrust is a particularly sensitive topic for Google right now, given the European Union’s recent charges that Google protected and expanded its market power in the Internet search market by imposing restrictive licensing conditions on smartphone makers and mobile network operators for its most popular apps (see here).

Schmidt may have made one mistake in his testimony — he let slip that there had been a previous copyright trial between Google and Oracle. The present jury does not know that a previous jury found in 2012 that Oracle’s copyright was infringed, but hung on the question of fair use, and Google’s lawyers have asked Alsup to continue to withhold that information from this panel.

Given Schmidt’s apparent gaffe Wednesday, Alsup told both sides that they are “making a mistake” by failing to tell the jury now.

“I feel you should just come clean and let them know,” Alsup told the lawyers after the jury had left for the day. “If they don’t understand the true background, it will lead to speculation, and that could come back to hurt somebody in a terrible way.”