August 17, 2012
Oracle and Google Make Unenlightening Disclosures of their "Shills"
By Eric Goldman
In Oracle v. Google, Judge Alsup recently ordered the parties to:
[f]ile a statement . . . identifying all authors, journalists, commentators or bloggers who have reported or commented on any issues in the case and who have received money (other than normal subscription fees) from the party or its counsel during the pendency of [the] action
As we previously wrote, this order is incredibly broad, which meant neither party could reasonably comply with its literal terms. As a result, initially I expected the parties to push back on the judge's request; but when they announced they both intended to comply, clearly there were going to make some limiting assumptions.
The statements are filed, and not surprisingly, they are dull. They don't tell us anything we didn't already know.
Oracle's statement discloses the following:
* Florian Mueller, who had previously disclosed his Oracle relationship.
* "certain Oracle employees" who blog. They specifically reference Hinkmond Wong.
* Stanford Law professor Paul Goldstein, who writes a copyright treatise and is of counsel at MoFo, Oracle's law firm in this case. Oracle says Goldstein hasn't commented on the case, but I haven't had a chance to confirm if Oracle cited his treatise in the case and disclosed his MoFo affiliation when doing so. Scott Graham's Recorder article notes that Google cited to Goldstein in its trial brief but didn't note any similar citations in Oracle's papers.
Google's statement doesn't name any names at all. Instead, Google explains to the judge that the literal terms of his order sweep in various categories of folks, and it asks the judge to speak up if he wants more information about folks in those categories. The categories:
1) Universities and non-profits
2) organizations that Google belongs to or contributes to, including political organizations and trade associations. With respect to these first two categories, Google notes that it publicly discloses its relationships (see also its supported academics). I'm curious if other companies make equally robust disclosures of their affiliations and supported researchers? Nevertheless, these lists may not be comprehensive (they have weasel words in the intro, and the academics list doesn't include competitively allocated research grants).
3) AdSense publishers (one of the disclosure categories I harped on--fortunately I wasn't on the list!)
4) Google employees, vendors and contractors
5) Expert consultants in this case. Confusingly, Google claims they are outside the order's scope because the experts only said what they were paid to say. This response would make more sense if we knew the identity of all such experts, but Google didn't offer a list here and could very well have experts that it didn't disclose to Oracle or the court. So it seems like Google may be cutting corners by not disclosing now any expert consultants who hadn't been previously disclosed, or confirming that no such folks exist.
6) Witnesses identified for trial. Google may also be cutting some corners here, saying that these folks were already identified in the litigation record. That's true, but Google didn't disclose which of those folks it paid, either for their testimony or for commenting on the case separately.
Perhaps fearing that Google wouldn't make adequately fulsome disclosures, and even though the judge didn't ask the parties to rat each other out, Oracle tries to "help" Google by anticipatorily naming some names for Google. Oracle calls out:
* Ed Black of the Computer and Communications Industry Association, which Oracle says is "funded in large part by Google." Oracle cites this Forbes post by Black.
* Jonathan Band, who wrote a book cited by Google, and whom Oracle says is indirectly funded by Google through Google-supported trade associations.
More generally, Oracle complains that "Google maintains a network of direct and indirect “influencers” to advance Google’s intellectual property agenda." I couldn't tell if Oracle was complaining out of concerns about the corrosive effect on society that such networks could have, or if it's simply jealousy that Google's influence network is better than Oracle's. I think this whole inquiry raises some very important social issues about credibility, transparency and the corrosive effects of money in our policy-making process, but I don't think we're likely to make real progress on any of those heady topics in this forum.
The parties' submissions now force Judge Alsup's hand. Did he really want the broad disclosure he ordered? If so, I wouldn't be surprised if a benchslap were in the offing for the obviously laconic disclosures. Or, is he going to accept these unenlightening filings and move on? In the former case, we're likely going to find out what was bothering Judge Alsup enough to start this inquiry. But if he doesn't force the parties to do more work, we may never know what started this.
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