Oracle now going after Google statement that the lawsuit happened because Oracle couldn't make their own phone.
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Says it's now Google's turn for rebuttal, and that he won't be replying, but that if he were allowed, "You know I'd have something to say."
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Oracle closing over. 15 minute break. 25 minutes of rebuttal from Google. Then 20 minutes of jury instruction.
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It's freezing in here. I just put on some fingerless gloves.
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bringing in the jury
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Van Nest has 25 mins. "Thank you, your honor. I'll try not to use every one." Dutiful laughter from the Keker & Van Nest side of the court
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Van Nest rebuttal begins.
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Says that there's a huge thing that hasn't gone addressed. Sun not only made Java free to use, they also made the APIs free to use.
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"The APIs were given away with the language... to promote the popularity of the language."
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Eric Schmidt: "It's not possible to use a language with out its— the interfaces"
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"They're separate but integral. ... they were given away."
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Google: And were the APIs marketed by Sun along with the language, in other words as free and open? Schwartz: Absolutely, yes.
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"They said publicly in a 10k filing, 'we support open interfaces.'"
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"I heard a lot about STEALING and THEFT. We're here disputing whether Google's open use... is a fair use."
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"I'm not sure why we're talking about stealing and theft, everyone knew what was going on."
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"All companies have internal debate. Sure, you can cherry-pick emails."
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Says the people leading the companies ultimately came to the conclusion it *was* fair use.
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Which isn't quite right. They came to the conclusion APIs aren't copyrightable.
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"A 'shortcut' took five years to get this product out. 'Shortcut'? You heard about all the time and effort it took to build Android."
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"The industry testimony you heard from virtually every witness that's a programmer ... programmers have viewed the APIs as free and open."
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Oracle's closing is all about how jury should use "common sense" about "stealing." Google leans on custom and practice among tech people.
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"Fair use is the law and fair use is intended to encourage innovation."
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"That's why it's important to determine whether Android was transformative or not."
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Oracle says that it's not transformative because the declaring code is verbatim. "That's not the law."
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The jury instructions say the material copied need not be modified.
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Again running through the full Android stack and all the stuff that goes into it, from Linux kernel to libraries.
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"It was like nothing else before it, including anything Sun and Oracle had done with Java, who are the experts."
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Van Nest says that bringing up Oracle's failures "is not a criticism of their companies in anyway." But rather points to transformativeness.
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"You don't have to choose between commercial and transformative. The law makes that clear too."
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"Why? Because the whole purpose of fair use is to promote innovation."
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If you make something very innovative, of course it will be commercially successful.
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