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Judge Asks Google to Supplement Its List of Any Paid Folks ~pj
Monday, August 20 2012 @ 10:32 PM EDT

The judge in the Oracle v. Google case, the Hon. William Alsup, has responded to Google's request for clarification as to what the judge meant in his order asking for a list of any paid authors, lawyers, bloggers, etc. He today issued a second order on the topic, telling Google -- and Oracle if the shoe fits -- to amplify what it already filed with the court and explaining that what he wants is to find out about any "authors whose statements about the issues in the case might have been influenced by the receipt of money from Google or Oracle."

About Florian Mueller of FOSSPatents, Judge Alsup writes:

Even though the payment was for consulting work, the payment might have influenced the blogger’s reports on issues in the civil action. Just as a treatise on the law may influence the courts, public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways. If a treatise author or blogger is paid by a litigant, should not that relationship be known?
Amen. Mueller has maintained that he doesn't need to put a disclaimer on all articles about Oracle's litigation after his one April announcement, but I gather the judge disagrees, as do I.

As to Google, the judge views it that it has not yet complied with his first order, and it has until Friday August 24th to file its supplemental list.

I think perhaps the judge misunderstands. He seems to think there must be an equivalent to FOSSPatents on Google's side:

Please simply do your best but the impossible is not required. Oracle managed to do it. Google can do it too by listing all commenters known by Google to have received payments as consultants, contractors, vendors, or employees.
He seems to imagine that things like AdSense mean Google is paying commentators:
Google suggests that it has paid so many commenters that it will be impossible to list them all. Please simply do your best but the impossible is not required.
So there is a misunderstanding in this picture, influenced by Oracle's endless smears, perchance. Google already told the judge that it has not paid *any* bloggers to comment or anybody actually:
Neither Google nor its counsel has paid an author, journalist, commentator or blogger to report or comment on any issues in this case....

As the Court has recognized, a large volume of material was written in traditional publications and on the Internet about the case. Given the rise of self-publishing, individual blogs, and other fora for coverage and opinion, it is possible that any number of individuals or organizations, including those with indirect or attenuated financial connections with the partie, might have expressed views regarding this case. Rather than flooding the Court with long lists of such individuals or organizations who might have written something about the case, Google outlines below several general categories of individuals and organizations and requests the Court's further guidance as to whether it would be useful for Google to provide more details or attmept to compile a more comprehensive list. Google does not believe that individuals or organizations within these categories were intended to be encompassed within the scope of the Court's Order, but Google brings them to the Court's attention out of an abundance of caution. Neither Google nor its counsel has paid any individuals or organizations within these categories to report or comment on any issues in this case.

The categories listed that Google says it never paid to comment included universities and nonprofits, organizations Google belongs to or has made contributions to, those who participate in Google's advertising programs, employees, vendors or contractors, expert consultants, witnesses for trial, etc. Some of them may have commented, but not because Google asked them to or paid them too. It's the last sentence in particular that I think the judge misread, the one I marked in red. No doubt Google will explain that it owns a blogging platform, and that anyone with a website can place Google ads on it and get a cut. That's not Google paying people to comment on the litigation.

And the judge narrows the list he wants, in response to Google's earlier questions. For example, he doesn't care about gifts to universities or a list of experts in the case. But he is interested in employees. But if Google has to compile a list of any employees who may have commented on the litigation, surely Oracle must do so as well. But assuming both parties have now told the truth, there really isn't anything else to add, except for a list of people who happened to write about the case but never got money from the parties to do so. If there are any further FOSSPatent types out there, that seems to be what the judge is looking for. I think, however, he will find that there just aren't any.

Here is the order:

08/20/2012 - 1238 - ORDER TO SUPPLEMENT. Signed by Judge Alsup on August 20, 2012. (whalc1, COURT STAFF) (Filed on 8/20/2012) (Entered: 08/20/2012)

Here's the order in full, except for the header:
The August 7 order was not limited to authors “paid . . . to report or comment” or to “quid pro quo” situations. Rather, the order was designed to bring to light authors whose statements about the issues in the case might have been influenced by the receipt of money from Google or Oracle. For example, Oracle has disclosed that it retained a blogger as a consultant. Even though the payment was for consulting work, the payment might have influenced the blogger’s reports on issues in the civil action. Just as a treatise on the law may influence the courts, public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways. If a treatise author or blogger is paid by a litigant, should not that relationship be known?

In the Court’s view, Google has failed to comply with the August 7 order. Google is directed to do so by FRIDAY, AUGUST 24 AT NOON with the following clarifications. Payments do not include advertising revenue received by commenters. Nor does it include experts disclosed under Rule 26. Google suggests that it has paid so many commenters that it will be


impossible to list them all. Please simply do your best but the impossible is not required. Oracle managed to do it. Google can do it too by listing all commenters known by Google to have received payments as consultants, contractors, vendors, or employees. As for organizations receiving money, they need not be listed unless one of its employees was a commenter. Gifts to universities can be ignored. Again, Google need only disclose those commenters that can be identified after a reasonably diligent search. Oracle must supplement its list if this order clarifies any issue for Oracle.

IT IS SO ORDERED.

Dated: August 20, 2012. WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


  


Judge Asks Google to Supplement Its List of Any Paid Folks ~pj | 79 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic Comments
Authored by: Neeld on Monday, August 20 2012 @ 10:39 PM EDT
Random things

[ Reply to This | # ]

My question is why?
Authored by: Anonymous on Monday, August 20 2012 @ 10:48 PM EDT
I understand that in the big picture we might find this information usefull...

But in a court where facts are weighed in and disclosures are given when a
witness testifies ... why does this matter to the court?

[ Reply to This | # ]

Judge Asks Google to Supplement Its List of Any Paid Folks ~pj
Authored by: Anonymous on Monday, August 20 2012 @ 11:28 PM EDT
I think Google could have been a bit clearer that the issue is
that they don't know which of those people they have paid are
commentators, hence the impossibility of providing that list
rather than providing a list of the millions of people they
have paid, which while unfeasible, would be possible.

[ Reply to This | # ]

Corrections Thread
Authored by: artp on Tuesday, August 21 2012 @ 12:39 AM EDT
Eror -> Error in TItle block if at all possible.

Skipping other canonical threads as PJ is puttin' em out
faster than I can read 'em.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Reasonably Diligent Search
Authored by: Anonymous on Tuesday, August 21 2012 @ 12:53 AM EDT
I was going to post this as a reply to a OT comment on a previous article but since PJ has already written about this I thought I should post it here. The referenced comment read:
This is tne point at which Google literally buries the judge with data. 100+ DVDs with 9GB of data on each, listing nothing but names and contact information of eberybody who has ever had anything close to a passing relationship of any kind with any of the organizations or groups it has contributec money to, in the last two years.(name, phone number, email address, organization, known blogs, known social networking sites, known forum hangouts, etc)
While I imagine "backing up the dump truck" would likely get Google cited for contempt of court, I do hope Judge Alsup realized that Google's specialty is search when he wrote:
Again, Google need only disclose those commenters that can be identified after a reasonably diligent search.
After a Google search (matching their normal search against their AdSense database), there might be a few more entries there than the good judge bargained for!

[ Reply to This | # ]

Here's one: Florien Mueller
Authored by: Anonymous on Tuesday, August 21 2012 @ 02:54 AM EDT
Yup, Flo Mo uses Google Blogger, which saves him
considerable cost in setting upon alternative blogging
platform. He also uses android for free,which as we know is
worth beelions. This is definitely quid pro quo for all the
positive things he says about Google.

If anything were to show the absurdity of implying influence
due to using free blogging or advert services, this would be
it.

I don't think the judge is after this though, I think he
wants info on universities and organisations who have
received donations and commented on the case.

[ Reply to This | # ]

Oracle said their employees may have blogged about the case
Authored by: Anonymous on Tuesday, August 21 2012 @ 06:10 AM EDT
But didn't have to list them. They got away with a blanket
statement "Certain Oracle employees may have blogged about
issues relating to the case... Oracle did not ask or approve
any of its employees to write about the case and does not
track employee bloggers". But Google says essentially the
same thing - they didn't ask or pay anyone to write about the
case - and they get told to find and list everyone? Doesn't
seem fair.

[ Reply to This | # ]

Who will be on the list?
Authored by: Anonymous on Tuesday, August 21 2012 @ 07:58 AM EDT
Could this include PJ and Groklaw readers?

[ Reply to This | # ]

I appear to fall in a grey area
Authored by: Kevin on Tuesday, August 21 2012 @ 09:23 AM EDT
Last year, I served as a mentor for Google Summer of Code. For my time and
effort, Google made a contribution to the sponsoring organization. Hence, in
some sense I have been "paid by Google." I've also commented
sporadically in this forum, in a personal capacity and without Google's
knowledge, except to the extent that Google has ingested the postings into its
search engines. Certainly, I have never sought nor received Google's consent for
any posting. I suppose it is possible that Google could identify my postings by
the '73 de ke9tv/2, Kevin' in my signature line, which I use regularly in a
number of forums.

My relationship with Google Summer of Code has not affected my opinion on the
merits of this case. Nor was my participation as a mentor there contracted under
any sort of understanding that I would speak or remain silent about Google. I
speak here in purely a private capacity.

Google paid the sponsoring organization to provide mentors; I happened to be one
that the organization chose, and I'm sure they have a record somewhere of mentor
names. I happen to have commented on this case here, in a forum that PJ assures
us is outside Google's control.

And it is precisely this sort of arm's-length relationship that the judge
appears to be ordering Google to track down. Should I be writing to the court?
Should all the thousands of GSoC mentors be writing to the court because their
sponsoring organizations took Google's money and they have still felt free to
speak in a private capacity?

I find it disturbing that my posting here gives the appearance of impropriety.
Given the tangled web of corporate relationships, I begin to wonder if the law
restrains me from speaking publicly on any subject, lest some company with whom
I have a financial relationship have an interest in the topic unbeknownst to
me.

I expect that this litigation may well lead to companies' adopting new Draconian
restrictions on when people are allowed to communicate. I can easily see
standard contracts being changed to "you may not post anything, on any
topic, to an online forum, even in a private capacity on matters that you deem
unrelated to the scope of the contract, without first receiving clearance in
writing from the corporate public affairs office, the patent and legal
department, and an export control attorney."

And the whole affair is crazy. What bearing does Oracle's relationship with
Muller have on the facts of the case? The jury is already enjoined from reading
about the case in the media. Why does the court need to take judicial notice
that a given reporter was paid by a party, much less then follow up with a broad
inquiry against Google when Oracle answers, 'tu quoque?'

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Google should just come out and say it
Authored by: DannyB on Tuesday, August 21 2012 @ 10:31 AM EDT
Google should just come out and say it like IBM did. Simple. Unambiguous.
Straightforward.

In a nutshell: Google has no financial or editorial control over Groklaw.

Something like that may be what the judge is looking for.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Will Groklaw be on the list?
Authored by: Anonymous on Tuesday, August 21 2012 @ 11:07 AM EDT
I would not be surprised if Groklaw is one of the sources of commentary that
Judge Alsup is concerned about. I have often wondered about the vitriolic tone
and lopsided content of your commentary. In fact, this article is a good
example.

Judge Alsup was not responding to Google’s request for clarification as your
title suggests. He was reprimanding Google for failing to comply with his
previous order.

It was clear from Google’s submission on Friday that they had cynically dodged
the question. The order did not ask the parties to identify commenters that they
had paid to write about the case, it asked them to identify any commenters that
had written about the case and with whom they have or had a financial
relationship (other than subscriptions, AdSense, etc.).

It is also clear that the Judge isn’t at all confused about AdSense. You are.
What is it about “payments do not include advertising revenue...” that you don’t
understand?

The real question is: are you genuinely as confused as you appear to be? Or are
you being remunerated in some way to pretend to be confused in order to confuse
other people?

Also, in my opinion, the “payments” in Google’s next submission really ought to
include:

- Direct or indirect sponsorship of a commenter’s Research or White Papers

- Direct or indirect sponsorship of Conferences from which the commenter or
their organisation profits

- Payments in kind, such as being given privileged access to high-value Google
employees or early access to newsworthy information in exchange for favorable or
editorially-directed coverage.

I would also ask both parties to reveal if they have ever encouraged their own
employees or hired a third party to pose as “ordinary users”, posting or
tweeting messages disguised to look like grass-roots user commentary.

[ Reply to This | # ]

Who Has Commented on this Case?
Authored by: Anonymous on Tuesday, August 21 2012 @ 01:36 PM EDT

Instead of saying who have either party paid who may have commented on this case, I thought I would look at who has commented on the case and see if it is plausible that they may have been paid to do so.

What I did was to do a simple Google search on "oracle versus google" and check the first two pages of links. This is what I found:

  1. Joe Mullin - arstechnica.com - Interviewed two Google lawyers after the trial.
  2. PJ - groklaw.net - No comment necessary.
  3. AdamOutler - xda-developers.com - Article is anti-Oracle on the basis that copyright of APIs would be bad.
  4. Rachel King - zdnet.com - Neutral.
  5. Bryan Bishop - theverge.com - Violently pro-Oracle. The "article" is basically pro-Oracle PR spin.
  6. Dan Rowinski - readwriteweb.com - Neutral.
  7. Caleb Garling - wired.com - Neutral.
  8. no author - economist.com - Neutral.
  9. Rachel King and Dan Farber - cnet.com - Neutral.
  10. Declan McCullagh - cnet.com - - Neutral. Quotes both Florian Meuller and Groklaw. Author is married to a Google employee.
  11. generic story search page - cnet.com
  12. Sue Gee - i-programmer.info - Neutral. Story is about judge knowing how to program.
  13. Michael Gorman - engadget.com - Neutral.
  14. John Oram - brightsideofnews.com - Article is anti-Oracle. Quotes Groklaw and PJ. Opposition to Oracle is based on a general dislike of "unreasonable" IP lawsuits.
  15. John Letzing - wsj.com - Neutral.
  16. Soulskill - slashdot.org - Neutral (the story summary that is, no the comments).
  17. Joe Mullin - arstechnica.com - Neutral.
  18. document search page - cand.uscourts.gov - Neutral.
  19. Geoff Duncan - digitaltrends.com - Neutral.
  20. Chris Davies - slashgear.com - Article is anti-Oracle on the basis that copyright of APIs would be bad.

So, out of 20 links, we get the following:

  • 13 are simply neutral reporting of the facts, mostly by news sites.
  • 2 are just embedded search pages, and so don't express opinions of their own.
  • 3 don't like Oracle due to the side effects they think Oracle's arguments would have.
  • 1 is violently pro-Oracle, but it's not possible to find a rational reason in the article for his opinion. This one however might be just the frustrated screams of an anti-Google Apple fan-boy rather than someone who is directly pro-Oracle.
  • Groklaw is the number 2 link.
  • I didn't see Florian Meuller's blog in the first two pages. Who is connecting him with journalists?
  • One journalist disclosed being married to a Google employee. I wonder if the judge consideres that as "accepting money from Google"? It doesn't seem to have affected his reporting however.

The thing that I find most interesting is that if there are any paid shills out there, it's not easy to find them by doing a simple web search for them. If they are getting into the public consciousness, it's indirectly by being quoted or linked by other more normal channels. The question is then, how do shills get public notice? Do company PR departments phone up journalists and put them in touch? Journalists are always looking for "sources" that they can rely on to give them a quote (note that I said "rely on to give a quote", not "give a reliable quote").

If you are a professional shill, you would make those connections and then hunt for company contracts which take advantage of them. Your blog posts would simply be filler material for journalists ("I need a supporting quote for this argument") rather than something which is meant to be read directly by the public. If someone wanted to do a detailed study on this issue, what they would need to do is to find a large representative sample of news stories and see which "independent" third parties were quoted and then try to make a connection from there.

Oh, and on the Internet PJ is #2, while Florian is number no-where. Some things you can buy with money, and some things you can't.

[ Reply to This | # ]

Don't forger the "associations"
Authored by: Anonymous on Tuesday, August 21 2012 @ 09:02 PM EDT
One of the things judge Alsup has explicitly asked both
parties to list before Friday is the various "associations"
and "groups" that are sponsored by or represents the
parties.

In other words, things like (*these names are fictional*):

"The association for distributed search" (with Google as the
biggest member).

"The Byte code society" (a Java organisation founded by Sun
and now run by Oracle).

"The Software Printing Industry Alliance" (with both as
members).

Etc.

Such a list is very useful if an organization on the list
later tries to intervene as a neutral friend of the court.

[ Reply to This | # ]

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