SAN FRANCISCO—Google's Android operating system might be free, but it makes plenty of money off the system—and some of that cash ought to be headed to Oracle. At least that's what the database company's lawyer told a jury today. "You can't just step on somebody's intellectual property because you have a good business reason for it," said Michael Jacobs, an Oracle lawyer.

One of the biggest tech-industry legal disputes has moved to trial now in San Francisco, where a panel of 12 men and women was sworn in to hear eight weeks of testimony about whether Google violated copyright and patent laws when it created its Android operating system. Jacobs told jurors that Google was so eager to see Android take off, it was willing to charge ahead without getting a license from Sun—even though top Google execs knew it needed one. (Java was created by Sun Microsystems, which was purchased by Oracle a few years ago.)

Google hasn't had a chance to respond yet; its lawyers are scheduled to give an opening statement tomorrow morning.

This trial is the culmination of a case first filed almost two years ago. Over that time, it has morphed from a case mostly about patents to one that's mainly about copyright. That's in part because five of the seven patents Oracle originally asserted have been tossed out of the lawsuit. At one point, Oracle filed damage reports suggesting it would ask for up to $6 billion in damages; that's been whittled down greatly. The sides still have conflicting damage reports, but numbers presented to the jury are likely to be in the tens of millions, not the billions.

Opening statement

"This isn't the kind of property we're used to," Jacobs told the jury. "It's intellectual property, which fuels our economy, and is the backstop for the R&D that great companies engage in."

After that brief explication, Jacobs wasted no time in showing jurors an e-mail from Google engineer Tim Lindholm to Andy Rubin, the head of Android. That message has been the subject of contentious litigation already, and Google lawyers tried, unsuccessfully, to keep it out of court. It reads in part:

"What we've actually been asked to do (by Larry and Sergei) is to investigate what technical alternatives exist to java for android and chrome. we've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

It was the first of many e-mails Oracle presented that show Google knew it needed a license for Android, but just blew it off. "This was not a mistake, this was not inadvertence," said Jacobs. "The decision to use Oracle intellectual property in Android was done at the highest levels of Google with consciousness and awareness of what's going on."

(Google has argued that the Lindholm e-mail is simply a strategic discussion of what to do, which was only initiated after Oracle filed suit.)

In the lawsuit, Oracle isn't claiming that a license is needed to use the Java programming language, but it does say a license is needed for anyone using a Java application programming interface, or API. Google, meanwhile, maintains that neither the Java programming language nor the Java APIs are even subject to copyright.

Just because Google doesn't charge for Android doesn't mean it isn't big business, said Jacobs. It makes its money the same way Google does from Web search—via advertising.

"So this is Google's pitch: we don't make money off of Android. We give it away for free to the world, and they put it on their cell phones and tablets," said Jacobs. "But this is business. And in fact, Android is hugely profitable for Google."

Google wanted to base its system on Java because it knew it needed an active developer community to design the apps that would make Android take off. Google believed that leveraging Java—with its community of six million developers worldwide—was the way to go.

At one point, Jacobs acknowledged that there's precious little evidence of actual copying in the case. The allegation is that it's the design of Java APIs that Google emulated. Still, he did show a few lines of code to the jury that Google is alleged to have copied "line for line" from Java code. "It's not a lot, but copying is copying," said Jacobs. Building Android "was not done in a clean room. It was not done without looking at Sun's stuff."

The jury

Only jurors who were prepared to sit for an eight-week trial even came to court; they were pre-screened with written questionnaires. Forty-four prospective jurors filed into court shortly after 8:00 am, but only about 20 of those were ultimately questioned. Judge William Alsup warned jurors not to look at any press coverage of the case, and not to talk about it with friends and family—standard orders for a jury, but more significant in a high-profile case like this one.

"You may not look at any website, blog, no TV item, or radio item," Alsup said. "The case must be decided on the evidence at trial, not what some newspaper person is saying."

The pool of jurors that was questioned included two computer engineers, each with more than 20 years of experience—one who worked for Cisco and another who worked for Hewlett-Packard. The HP engineer, when asked about her hobbies, said she enjoys creating smartphone apps in her free time. Both had involvement with their respective companies' patent work, and the Cisco engineer said he was heavily involved in a patent lawsuit Cisco is currently defending.

During questioning by the judge, the Cisco engineer expressed skepticism about software patents, saying: "My opinion is that patent lawyers write those so vaguely it's hard to argue them one way or another." Ultimately, both engineers acknowledged they would have a hard time separating the evidence at trial from their own extensive work in the tech industry. They were dismissed by the judge.

Two other prospective jurors were attorneys; one an in-house insurance lawyer, and another was actually a patent lawyer who works in Silicon Valley (mostly dealing with biomedical technology). Both were struck from the final panel by Oracle and Google lawyers—each side was allowed to strike three jurors in total. (Oracle struck the insurance lawyer, while the patent lawyer was knocked out by Google.)

At one point, prospective jurors were asked what kind of cell phones they used. About half raised their hand to indicate they use smartphones, while the other half had feature phones. Only one of the jurors (who is on the final panel) uses an Android phone.

The jury as finally selected is seven women and five men with a range of backgrounds. The panel includes a retired photographer, a woman who works for The Gap, a secretary with the EPA, an SF Muni bus driver, a plumber, a financial adviser, and a letter carrier for the Postal Service. Because it's a federal jury, the juries come from throughout the Northern District. This includes the entire San Francisco Bay Area and some counties further to the north.