Oracle has encountered an unforeseen issue in its ongoing Android Java suit against Google: a judge who himself codes, and knows the potential value of "stolen" code. Judge William Alsup challenged Oracle's lead lawyer David Boies over his suggestion that Google copied Java code so as to reduce the time that it took Android to get to market, Groklaw reports, insisting that in fact the relevant lines could be cooked up from scratch in exactly the same time. "The idea that someone would copy that when they could do it themselves just as fast," Alsup pointed out, "it was an accident. There's no way you could say that was speeding them along to the marketplace."
The suggestion that Google was looking for a shortcut to the marketplace came as Oracle discussed exactly what it felt it deserved for the supposed unauthorized use of Sun's Java code in Android. The company's lawyer tried to distance the argument from talk of it being a "mere" nine lines in question, positioning Google as attempting to bluster its way out of damages.
"It's not clear to me that the right comparison is nine lines vs. 15 million, since 10 million of that is the Linux kernel. But still, nine lines is a small percentage. The test files are much more substantial, but they're not included at least in the current version of Android.
But both of those benefited Google. It accelerated the time in which Android could be finished. The timing of Android was critical; we've demonstrated that to a limited extent already, and we'll demonstrate more in phase 3. They wanted it faster, faster, faster. This copying allowed them to use fewer resources and accelerate that. Suppose they accelerated it two days. They're making $3 million a day now, activating 700k or 800k phones. [something about how Google estimates they make $8 to $10 per activation] If you just get one or two days' acceleration, that's $6 million or $7 million, and it's not something that's untethered from the value that's created.
What they want is to say that if something is small, you don't get any infringer's profits. We think that's contrary to the statute and to the policy that makes infringement worthless. Yes, someone else could have written that code, but how long would it have taken?" David Boies, Oracle legal team
That angle didn't fly with Judge Alsup, however, who revealed himself to be a coder on the side. He admitted that his familiarity with Java was lacking prior to the trial, but said that he had experience with what Oracle argued were Google's shortcuts, and found those suggestions lacking:
"I couldn't have told you the first thing about Java before this problem. I have done, and still do, a significant amount of programming in other languages. I've written blocks of code like rangeCheck a hundred times before. I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast, it was an accident. There's no way you could say that was speeding them along to the marketplace. You're one of the best lawyers in America, how could you even make that kind of argument?" Judge William Alsup
Oracle has seemingly talked itself into now seeking damages from Google, in what the Judge described as "a fishing expedition" for some sort of positive outcome to the case. The court will reconvene in a few hours time.