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SAN FRANCISCO, Calif.—Lawyers for Oracle Corporation summoned a hostile witness to the stand today here in federal court, revealing what they surely hope will be a “smoking gun” e-mail in their copyright infringement case against Google.
One big problem: the writer of that e-mail, Stefano Mazzocchi, didn’t work for Google at the time. Mazzocchi is one of three people who created the Apache Harmony program, which Google leaned on heavily when it created its Android mobile operating system.
The case began in 2010, when Oracle, which acquired Java when it purchased Sun Microsystems, sued Google for using Java APIs in Android.
In 2012, a judge ruled that APIs can’t be copyrighted at all, but an appeals court disagreed.

At the jury trial now underway, Oracle may seek up to $9 billion in damages, while Google is arguing that its use of the 37 APIs constitutes “fair use.”
“In 2007, wasn’t there a dispute between Sun and Apache?” asked Oracle lawyer Annette Hurst. “And you believed it might not be the right thing to do to release Harmony?”
“We couldn’t call something Java if it wasn’t Java,” answered Mazzocchi.
“Did you ever describe Android’s use of Sun’s intellectual property as ‘ripping them off?'” Hurst asked.
“I don’t recall,” Mazzocchi said.
Hurst pulled up an e-mail (PDF) that Mazzocchi wrote, which was distributed to hundreds of members of the Apache Software Foundation.
“The bigger question in my mind is not about hardware,” Mazzocchi wrote. “What is Oracle’s going to do with 500 million java-powered [sic] cell phones? What is Oracle going to do about Android’s ripping off some of (now) their IP and getting away with it?”
In the e-mail, Mazzocchi spoke in negative terms about his soon-to-be-realized fears that Oracle would try to “lock down” the platform:
But one thing I want to say out loud: my biggest nightmares about having invested in a platform (java) that was not open was that somebody would come along and lock it down. My original fear was Microsoft, but Oracle fits the same profile.
Mazzocchi goes on to suggest that it all paints a picture that could mean the death of Java. He read through parts of the e-mail at Hurst’s direction.

Then she pulled up another one (PDF), also sent to the members@apache.org list.
It read, in relevant part:
But what I was missing is the fact that the copyright on the API is real and hard to ignore.
Simply by implementing a class with the same signature of another, in another namespace and simply by looking at available javadocs could be considered copyright infringement, even if the implementation is clean room.
So, we are, in fact, infringing on the spec lead copyright if we distribute something that has not passed the TCK and *we know that*.
Mazzocchi was then questioned by Google lawyer Michael Kwun, who tried to call the relevance of Mazzocchi’s e-mail into question.
Kwun: Mr. Mazzocchi, are you a lawyer?
Mazzocchi: I’m not.
Kwun: Have you ever held yourself out as an expert in copyright law?
Mazzocchi: No.
Kwun: How often do people at Apache ask you for legal advice?
Mazzocchi: Never.
Kwun: What did you know about fair use and copyright law? Did you know about the legal standard for fair use?
Mazzocchi: I didn’t, and still don’t.
The point was made: Mazzocchi is just a guy with views that don’t necessarily represent his colleagues at Apache, much less Google.
He was a volunteer at Apache and stuck around because he cared about the project.

According to his LinkedIn profile, Mazzocchi became a Google engineer in 2010.
“I would have left if I thought what the foundation was doing was causing harm,” he said.
Mazzocchi’s testimony was followed by another Oracle expert, economist Adam Jaffe. We’ll have a post on his testimony shortly.
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More from the Oracle v.

Google trial:
Read the Ars Technica explainer on the trial’s significance
Jury selection took place on Monday, May 9
Lawyers gave opening statements for Oracle and Google on May 10
Ex-Google CEO Eric Schmidt testified on May 11
Ex-Sun CEO Jonathan Schwartz told jurors he had no problem with Android on May 11
Android chief Andy Rubin testified on Thursday May 12
Top Android programmer Dan Bornstein testified on May 13 and May 16
Google expert Owen Astrachan discussed APIs and fair use on May 16
Oracle CEO Safra Catz testified on May 16 and May 17
Sun’s top Java architects and Oracle’s expert spoke to the jury on May 17
Former Sun execs said that Android “devastated” Java sales earlier today