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Judge Alsup Orders Financial Disclosure of Ties to Commentators in Oracle v Google ~pj
Tuesday, August 07 2012 @ 06:05 PM EDT

My dreams are coming true all day long today. First SCO heads for Chapter 7, and now the very Honorable William Alsup has ordered financial disclosure of any financial ties to commentators and bloggers and both parties, Oracle and Google, must reveal any such by noon on Friday.

Here you go, from the order:

"The Court is concerned that the parties and/or counsel herein may have retained or paid print or internet authors, journalists, commentators or bloggers who have and/or may publish comments on the issues in this case. Although proceedings in this matter are almost over, they are not fully over yet and, in any event, the disclosure required by this order would be of use on appeal or on any remand to make clear whether any treatise, article, commentary or analysis on the issues posed by this case are possibly influenced by financial relationships to the parties or counsel. Therefore, each side and its counsel shall file a statement herein clear identifying all authors, journalists, commentators or bloggers who have reported or commented on any issues in this case and who have received money (other than normal subscription fees) from the party or its counsel during the pendency of this action. This disclosure shall be filed by NOON ON FRIDAY, AUGUST 17, 2012."
No, Groklaw won't be on the list. We have no financial ties to anybody, direct or indirect, and now you'll get the proof. Guess who just might be, though?

Here's the order:

08/07/2012 - 1229 - ORDER RE DISCLOSURE OF FINANCIAL RELATIONSHIPS WITH COMMENTATORS ON ISSUES IN THIS CASE. Signed by Judge Alsup on August 7, 2012. (whalc1, COURT STAFF) (Filed on 8/7/2012) (Entered: 08/07/2012)

I seriously can't wait for noon on Friday. Say, they should do this for all litigation, don't you think? Like Apple v. Samsung, for example. And could somebody please nominate Judge Alsup for the US Supreme Court the millisecond there is an opening? It would be so refreshing to have somebody on the highest court who actually understands not only the tech but how some tech companies play the game.

Update: BuzzFeed has some lawyers reacting. They don't seem as thrilled as I am, and they expect pushback:

"I've never seen any order like this before," said Eric Goldman, law professor at Santa Clara University, "We're in unchartered territory here."...

"I'm concerned by the false positives. The literal order is about people who have blogged about the case and gotten money from Google — well, I've blogged the case and I do get Google AdSense money. I meet the literal terms of the order," Goldman said. Additionally, he could think of two situations where the order might conflict with one's constitutional right to privacy: an attorney/client privilege (lots of lawyers are blogging this case) and a journalistic privilege, if someone paid Google or Oracle as a source for information....

The problem of biased think tanks and sketchy lobbying groups is widespread in tech, as other industries: a recent two-part San Jose Mercury News story named names of such paid advocates in the Google and Microsoft anti-trust actions. "Disclosures of conflict is a very tricky topic. We don't have enough disclosure on these conflicts," he said. "I think the judge's impulses are commendable. I don't think he can do what he did, though."...

"I've not seen anything like this. More than anything, I'm frankly curious whether there's something behind this," Julie Samuels, a lawyer at the Electronic Frontier Foundation, "For Judge Alsup to issue such a broad order, once the trial is done, it means that there's something serious he's concerned about, or the court is out of place."

I think the concern about false positives will be easy to deal with. Just ask the judge for a clarification of the order. As to the rest, I'm not a lawyer, let alone a Constitutional scholar, so let's wait and see.

Update 2: The Verge is now reporting that Google says it will comply with the order. So it's not fighting it, probably it doesn't have any worries, so while Oracle's statement points at Google, I don't think so. Here's Oracle's statement:

Oracle has always disclosed all of its financial relationships in this matter, and it is time for Google to do the same. We read this order to also include indirect payments to entities who, in turn, made comments on behalf of Google.
Well, we'll see. How long ago did Oracle and Florian Mueller know they'd be working together? When did they announce it? I mean, Florian did well into the case, but did Oracle ever? I must have missed it, if it did.

Just for context, here's an article I wrote about all the damage Google endured in the media, for what turned out to be no good reason.


  


Judge Alsup Orders Financial Disclosure of Ties to Commentators in Oracle v Google ~pj | 236 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Judge Alsup Orders Financial Disclosure of Ties to Commentators in Oracle v Google ~pj
Authored by: Anonymous on Tuesday, August 07 2012 @ 06:21 PM EDT
Haha! That's excellent! I can't wait either, but it's a pity
he didn't include influence peddling: you might not get
money, but if you are a journalist you might get an exclusive
interview or a peek at some behind-the-scenes tech.

[ Reply to This | # ]

Corrections here
Authored by: feldegast on Tuesday, August 07 2012 @ 06:27 PM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

This action could be a game changer
Authored by: Anonymous on Tuesday, August 07 2012 @ 06:33 PM EDT
If comments for hire are exposed as such then it is quite possible then the
resulting publicity could turn them from a positive factor to a negative one. If
this happens then the mere possibility that it might happen could kill the whole
comments for hire industry at least as regards commenting on legal cases. And a
good thing too.

[ Reply to This | # ]

Even an objection
Authored by: Anonymous on Tuesday, August 07 2012 @ 06:52 PM EDT
would be quite telling.

Someone is between a rock and a hard place.

[ Reply to This | # ]

Judge Alsup Orders Financial Disclosure of Ties to Commentators in Oracle v Google ~pj
Authored by: red floyd on Tuesday, August 07 2012 @ 07:10 PM EDT
I just wish Judge Kimball or Judge Stewart had ordered this in the SCOXQ
(R.I.P.) case.

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Judge Alsup Orders Financial Disclosure of Ties to Commentators in Oracle v Google ~pj
Authored by: Anonymous on Tuesday, August 07 2012 @ 07:23 PM EDT
As litigation such as Oracle v Google can stretch over a couple of years (at
least) I imagine paid for comments in social media could be argued as being
prejudicial if jury members have seen such comments before trial?

Judge Alsop is a breath of fresh air. It's a pity others aren't as clued up as
he
appears to be. Any lawyer who thinks s/he can bamboozle this judge will find
they're wasting their time!

[ Reply to This | # ]

Judge Alsup Orders Financial Disclosure of Ties to Commentators in Oracle v Google ~pj
Authored by: Anonymous on Tuesday, August 07 2012 @ 07:32 PM EDT
I wouldn't be surprised if Groklaw does show up on Google's
list of bloggers. With something like Google donated money to
ibiblio and ibiblio provides hosting to Groklaw and so as to
cover themselves just in case. Not that I expect that anyone
at Groklaw knows everyone who donates to ibiblio or that such
a donation was used to influence Groklaw's coverage.

[ Reply to This | # ]

Judge Alsup Orders Financial Disclosure of Ties to Commentators in Oracle v Google ~pj
Authored by: Anonymous on Tuesday, August 07 2012 @ 07:35 PM EDT
What's a normal subscription fee? Those could be really pricey...and "over

looked"

[ Reply to This | # ]

Judge Alsup to Supreme Court or 5th Circuit
Authored by: Anonymous on Tuesday, August 07 2012 @ 07:39 PM EDT
I think PJ has an excellent idea. I created a petition to ask the White House to consider Judge Alsup for either the supreme court or the 5th Circuit should any vacancies arise. The 5th circuit is where the famous Western District of Texas resides, and all of those crazy patent and copyright appeals would go.

Here is the petition.

[ Reply to This | # ]

I'd like to see this man specifically mentioned...
Authored by: Anonymous on Tuesday, August 07 2012 @ 07:46 PM EDT
Though I know that "my expert" Florian Mueller has agreed that he's done and is still doing some work for Oracle, I'd like to see him mentioned. After all, in one article about the Oracle v. Google case, he states that evidence of willful infringement outweighs claims of approved use and goes on to fustain that "As an independent analyst and blogger, I will express only my own opinions, which cannot be attributed to any one of my diversity of clients."

Question is: Really?

[ Reply to This | # ]

Well this is getting interesting...
Authored by: SilverWave on Tuesday, August 07 2012 @ 08:23 PM EDT
:-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Off Topic thread?
Authored by: reiisi on Tuesday, August 07 2012 @ 08:32 PM EDT
I don't see an off-topic thread.

If there isn't, should this be it?

[ Reply to This | # ]

News Picks Thread?
Authored by: reiisi on Tuesday, August 07 2012 @ 09:07 PM EDT
Don't see a newspicks thread, either.

[ Reply to This | # ]

I have an honest question...
Authored by: dacii on Tuesday, August 07 2012 @ 09:07 PM EDT
Please forgive my ignorance. I can not seem to parse "during the pendency
of this action". Is that just financial transactions that occurred only
during the trial, or from the time that Oracle hired lawyers for representation
for the case. What happens to PR Firms employed/contracted by both parties.
Are they allowed to pay say FM for PR during the trial, yet escape the visage of
the court order?

I guess that should be questions and not question (singular).

[ Reply to This | # ]

shame judge Koh isnt of the same cloth.
Authored by: Anonymous on Tuesday, August 07 2012 @ 09:21 PM EDT
She seems more interested in procedure than justice or the
truth. On the upside the picture looks so biased to apple
right now that getting an appeal is almost a foregone
conclusion for Samsung.

[ Reply to This | # ]

Judge Alsup Orders Financial Disclosure of Ties to Commentators in Oracle v Google ~pj
Authored by: Anonymous on Tuesday, August 07 2012 @ 09:29 PM EDT
PJ, you've earned that red dress. Enjoy!

[ Reply to This | # ]

For what it's worth,
Authored by: charlie Turner on Tuesday, August 07 2012 @ 10:08 PM EDT
I have never been paid one cent for any reporting or posting I've done here.

[ Reply to This | # ]

Who cares what Oracle says
Authored by: mexaly on Tuesday, August 07 2012 @ 10:39 PM EDT
This is a United States presidential election year. BS&FO (O
for "Oracle," of course) should at least try to be less
transparent in their .00001-truths.

---
IANAL, but I watch actors play lawyers on high-definition television.
Thanks to our hosts and the legal experts that make Groklaw great.

[ Reply to This | # ]

Judge Alsup's reasoning
Authored by: celtic_hackr on Tuesday, August 07 2012 @ 11:58 PM EDT
I suspect Judge Alsop must be an avid reader of Groklaw and learned of Florian
Mueller's participation and is concerned over other media sources Oracle has
used in an anti-competitive way to poison the lawsuit and the general public.

anyway that's my theory and I'm sticking to it. This man is exactly the kind of
person I'd expect to be able to google information and find Groklaw and
immediately recognize it for what it is. A handy and useful tool for litigators,
legal eagles, judges, and the savvy amateur.

[ Reply to This | # ]

I sold a couple of articles about this case
Authored by: Anonymous on Wednesday, August 08 2012 @ 03:34 AM EDT

Quite frankly it was a great case to write about.

And no, I wasn't paid by Oracle or Google.

Wayne
http://madhatter.ca

[ Reply to This | # ]

I don't see this as tenable
Authored by: Anonymous on Wednesday, August 08 2012 @ 03:55 AM EDT
There is no law against paying shills, jurors are required to keep away from
media coverage during the case (and are selected depending on the absence of
preformed opinions), and judges are supposed to form their decisions according
to law, not hearsay.

So while I certainly find paid journalism distasteful, it is the kind of dirty
laundry that the court has no plausible reason dragging into the case and the
public.

In fact, it might prejudice the jurors to hear who paid for what amount of media
coverage. It does not make sense to disclose this kind of relation when they
are not allowed actually looking at the coverage itself or hearing about it, and
thus there is no reason for providing a counterbias.

That looks like grounds for appeal to me, and quite unnecessarily so.

[ Reply to This | # ]

I know it's dreaming, but...
Authored by: Anonymous on Wednesday, August 08 2012 @ 04:12 AM EDT
Don't you wish we had an order like this in Apple vs. Samsung?

Heck, even one such in SCO's case might have proven interesting, though I think
we know about O'Gara & co. already.

[ Reply to This | # ]

What will this list tell us?
Authored by: TheMole on Wednesday, August 08 2012 @ 05:09 AM EDT
Aren't we going to see two lists each composed of just a large number of names?
I don't see where the judge requires the amount paid to be divulged, so it'll be
nearly impossible to sort out what's been going on. In fact, I suspect that
both parties will use that old British Civil Service trick of overloading the
Minister with vast amounts of data to hide the crucial bits.

And what happens if some senior Google staffer has made a contribution/donation
to Groklaw? Wouldn't a contribution from Brin, Page, Schmidt or Van Nest have
to be included? What if Michael Jacobs made a contribution following all the
nice things PJ said about him in SCO vs Novell? Groklaw could appear on both
lists!

[ Reply to This | # ]

what about indirect payments?
Authored by: Anonymous on Wednesday, August 08 2012 @ 07:11 AM EDT
Pretend oracle pays some research company, who is told to
pay some other research company, who finally pays the
bloggers? Is that covered?

[ Reply to This | # ]

This isn't about what they answer, but about how they answer
Authored by: Anonymous on Wednesday, August 08 2012 @ 09:55 AM EDT
I'm beginning to suspect that Judge Alsup isn't focussed on the actual content
of the answers from both Oracle and Google. Indeed, he may already know or have
reason to believe much already. Didn't somebody once suggest that a trial
lawyer ought not to ask a question the answer to which he doesn't already know?

I suspect that the Hon. Judge is putting both law firms on the spot to discover
who answers readily and straightforwardly, and who answers with prevarication
and misdirection. This could be a dangerous trap for any lawyer not paying
attention, not least in terms of potential damage to their reputation. Any
obvious wriggling and avoidance, or demonstrable lack of openness, might create
difficulties for them in any subsequent appeal process. This would be
especially true if the answers to the Judge's question given by both law firms
are susceptible to evidential challenge or to exposure as being less than
frank.

This is possibly more of a disclosure issue for the law firms, not so much for
the litigating parties. After all, isn't a lawyer's ultimate responsibility to
the Courts which can override their responsibility to their clients. I'm not
familiar with US legal practice, but I understand that in the UK the lawyers are
known as 'officers of the court'. If either client refuses to provide the
necessary details to their lawyers then it seems to me that the lawyers should
tell that to the Court, however nicely they put it. Judge Alsup is setting up a
potential conflict of interest between the law firms and their clients.

[ Reply to This | # ]

FM replies !!
Authored by: Anonymous on Wednesday, August 08 2012 @ 10:26 AM EDT
BBC report includes interview with FM. No mention anywhere of Groklaw but EFF gets discussed.

[ Reply to This | # ]

I see this as a direct result of the abuse practiced by SCO
Authored by: Anonomous on Wednesday, August 08 2012 @ 11:31 AM EDT
I see this as a direct result of the abuse practiced by SCO. Furthermore, on a
historical time scale it is quite an immediate response -- a new judicial method
developed in less than a decade. Learned Hand could not have done better.

Judges do not like to see the court used as a business tool, or a political
lever, or a marketing scheme. However, judges cannot afford to react only to
the immediate issues, but must consider the future of the law as an institution.
That is why judges must be careful about slapping down an abuser -- an
overreach or other error, reversed on appeal, might allow the abuse to become
precedent.

This order is a brilliant move that adds a stone to the structure without
endangering it.

-Wang-Lo.

[ Reply to This | # ]

Perhaps the judge likes to know of bias as he does his own research
Authored by: Anonymous on Wednesday, August 08 2012 @ 02:19 PM EDT
Maybe he just wants to know who to believe and who to discount as he does his
own research?

[ Reply to This | # ]

If only Judge Koh would do the same
Authored by: Anonymous on Wednesday, August 08 2012 @ 02:36 PM EDT
It would be interesting to see who Apple provided money or items of tangible
value (like an iPad) to journalists who then parroted every Apple PR. Maybe
Samsung could have done the same. But, seeing Apple using articles which quote
Apple being used as evidence makes one wonder.

[ Reply to This | # ]

Judge Alsup's Reasoning - is serious business
Authored by: webster on Wednesday, August 08 2012 @ 03:36 PM EDT
.

1. He notices something about this case and others,
possibly, and he has decided to do something simple about
it. Take him at his word. One can't help but notice that
these battles are waged in court and the media. Indeed, we
know from the SCO saga that the media battles are more
important than the Court battles since few have the patience
and knowledge to understand the Court battle, ... until
Groklaw that is. In addition, there was little substance to
the SCO allegations. These cases are not fought in a
vacuum. The realities of the market place and media as
impacting on the "sense of the commons" have their affect,
on jurors, judges, lawyers, and Courts of appeal. Judge
Alsup wants parties' efforts to shape reality or perceptions
of reality known. If little ol' SCO could do it with
Monopoly millions, other billion dollar corporations try and
further shape the world's realities.

2. Note that he orders this for the benefit of appeal or
remand back to himself. It is without limit so it applies
to lawyers and professors who might put commentary in legal
journals used as authority in briefs and argument. If
Oracle paid for articles finding SSO and API's
copyrightable, it would be handy for the Court of Appeals to
know it.

3. There is another, serious personal aspect to this.
Neither Alsup or Koh like to be called stupid after they
have made a ruling. They are normally given great
deference. It there is sudden critical commentary of a
judge from a source that wouldn't normally know or
understand what has transpired in court, that would make a
judge very suspicious. If he learns that a party paid for
that criticism, he will not take it lightly. This very order
may be the judicial reaction to such a piece of paid party
propaganda.

4. The courts also don't like being used as a side PR
skirmish in large corporate battles, particularly over
trivial issues. Orders like this one may keep the battles
in the courtroom and on piles of press releases. If a party
can't purchase a slanted story, silence is the wiser and
only course.

5. The order should also presume to cover ad money as
compensation.

6. The lawyers are going to have to ask their clients.
Every relevant article during this period will be suspect,
particularly if it has a slant. Any cozy connections
between lawyers and press will also be suspect. Also favors
can be exchanged without money passing.

7. Speaking from bitter professional experience, going to
the press is risky business. They may take the other
party's side if it makes a better headline. Going to the
press with money takes the risk out of it.

8. Since there is already one confessed commentator, this
will not be a fruitless exercise by Judge Alsup.

~webster~

.

[ Reply to This | # ]

The Register
Authored by: Anonymous on Thursday, August 09 2012 @ 07:10 AM EDT
There were a few negative articles in The Register of all places before and
during the trial. A Mr.Orlowski ("from San Francisco") was seen
quoting denouncing Google Florian like it was going out of fashion.

I was pleased to see that the Reg readership gave Mr.Orlowski the benefit of a
tongue-lashing but it would be interesting to see if Mr.Orlowski was shilling or
simply influenced by Florian. If he was shilling then The Reg might need to have
a look at who it allows to post editorials.

[ Reply to This | # ]

  • The Register - Authored by: pem on Thursday, August 09 2012 @ 09:30 AM EDT
  • The Register - Authored by: Anonymous on Thursday, August 09 2012 @ 03:48 PM EDT
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