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Oracle and Google File Paid Writers Lists ~pj
Friday, August 17 2012 @ 03:33 PM EDT

Google and Oracle have just filed their lists of anyone they paid to write about their litigation.

On a quick scan, for Google: nobody:

Neither Google nor its counsel has paid an author, journalist, commentator or blogger to report or comment on any issues in this case. And neither Google nor its counsel has been involved in any quid pro quo in exchange for coverage of or articles about the issues in this case.
So they list nonprofits they donate to and folks who have won research awards.

For Oracle, though: they retained Florian Mueller of FOSSPatents, but they say he was not paid to write about the litigation:

Oracle has retained Florian Mueller, author of the blog FOSS Patents, www.fosspatents.com, as a consultant on competition-related matters, especially relating to standards-essential patents. Oracle notes that Mr. Mueller fully disclosed his relationship with Oracle in a blog posting dated April 18, 2012; that Oracle retained him after he had begun writing about this case; and that he was not retained to write about the case. Mr. Mueller is a frequent critic of Oracle and was a leading advocate against Oracle’s acquisition of Sun Microsystems, Inc., which led to Oracle’s ownership of Sun's Java IP portfolio. A copy of Mr. Mueller’s disclosure is attached as Exhibit A at 5.


Here are the filings:
1236 - Filed & Entered: 08/17/2012
Statement re [1229] Order - ORACLE'S STATEMENT REGARDING FINANCIAL RELATIONSHIPS WITH COMMENTATORS - by Oracle America, Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D)(Jacobs, Michael) (Filed on 8/17/2012)

1237 - Filed & Entered: 08/17/2012 RESPONSE to re [1229] Order Re Disclosure of Financial Relationships with Commentators on Issues in this Case by Google Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B)(Van Nest, Robert) (Filed on 8/17/2012)

Oracle notes that some of its employees may have blogged about the case, but they don't track that:

Certain Oracle employees may have blogged about issues relating to the case. See, e.g., https://blogs.oracle.com/hinkmond/ (blogging about Java ME). Oracle did not ask or approve any of its employees to write about the case and does not track employee bloggers.
Oracle adds this:
In view of the Order’s reference to treatise writers, out of an abundance of caution, Oracle notes that Stanford University Professor Paul Goldstein is Of Counsel to Morrison & Foerster and is the author of the treatise Goldstein on Copyright. Professor Goldstein has not commented on this lawsuit.
Indeed, a number of employees did blog about it, from day one, as you can see on the list linked to here.

Oracle then, in character, attacks Google, claiming it "maintains" a wide network of influencers. It cites some media reactions to this judge's order, including some slanted guesses about various things. Guesses in the media are not proof. Mueller, however, says something specific in one, Exhibit B:

Florian Mueller, a patent consultant based in Germany, revealed on 18 April that Oracle had "very recently become a consulting client" - two days after the court case began. He had written about the lawsuit over previous months on his influential Foss Patents blog and continued to do so after his declaration, often making comments sympathetic to Oracle's claims.

When questioned by the BBC he said he could provide only a limited amount of detail about the relationship.

"There was never any request to say please do this or that," he said. "We agreed I would still express my views and pick my topics. I wrote all the blog posts independently, and they did not see draft posts."

Pick from what list? His own? Suggestions? It reminds me of Microsoft's Get the Facts website. Remember that? All those "independent" studies? Remember all the think tanks that Microsoft helped out with money that attacked Open Source on cue early in the SCO saga?

Google asks the court for direction on whether he wants more information. A lot was written about the case, so where is the line he is drawing?

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 parties, 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 attempt 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.

A. Universities and other non-profit entities ...

B. Organizations to which Google belongs or has made contributions...

C. Individuals who participate in Google's advertising programs and who have elected to comment on the case...

D. Google employees, vendors or contractors who may have commented on the case...

E. Expert consultants...

F. Witnesses identified for trial....

None of the above were paid to write or comment on the trial. And no, Groklaw won't be on any of those lists either, if the court decides he wants them. Oracle just can't stop smearing Google, however, and it has a suggestion for the court, mentioning Ed Black and Jonathan Band, neither of whom, I'll point out, are on Google's list:
In contrast, Oracle notes that Google maintains a network of direct and indirect “influencers” to advance Google’s intellectual property agenda. This network is extensive, including attorneys, lobbyists, trade associations, academics, and bloggers, and its focus extends beyond pure intellectual property issues to competition/antitrust issues. Oracle notes that Google’s extensive network of influencers has been the subject of recent press coverage. See, e.g., Exhibits B and C. Oracle believes that Google brought this extensive network of influencers to help shape public perceptions concerning the positions it was advocating throughout this trial.

While it is Google’s obligation by the Court’s Order to disclose the full scope and details of this network as it relates to this case or the issues in this case, Oracle notes just two prominent examples: Ed Black, President and Chief Executive Officer of the Computer and Communications Industry Association, funded in large part by Google, has written specifically on the issue of copyrightability of APIs. See, e.g., Exhibit D. Jonathan Band was a co-author of the book, “Interfaces on Trial 2.0,” which Google cited in its April 3, 2012 copyright brief. Band’s indirect relationship to Google through Google supported trade associations is discussed in the August 10, 2012 Recorder article attached as Exhibit C.

What the court ought to do, should it decide to go forward, is find out from the authors of the media articles Oracle cites if Oracle or any of its lawyers, including Boies Schiller, planted a bee in the bonnet of those journalists, like Roger Parloff. You remember his article in favor of SCO when it lost the first time on summary judgment, Did SCO Get Mob Justice? SCO lawyers referenced it in the bankruptcy, in successfully arguing against the US Trustee and IBM and Novell motions to dismiss or convert SCO's bankruptcy. Does he always take the same side as Boies, Schiller? Do his articles always get used by that law firm in litigation? Do they appear by coincidence? (His article in Fortune on EFF is referenced in Exhibit B. It's answered ably by lawyer Jennifer Granick of Stanford Law School's Center for Internet & Society.) Is there a relationship there between Boies Schiller and Parloff? From an article by Parloff in 2007:
When Google (GOOG) announced its $3.1 billion proposed acquisition of DoubleClick on April 13, recovering monopolists Microsoft (MSFT) and AT&T (T) were the most vociferous complainants urging regulators to scrutinize the deal.

Alluding to the irony, I asked Microsoft general counsel Brad Smith last week if he’d be hiring David Boies, of Boies Schiller & Flexner, to counsel his company on the antitrust issues. It was Boies, of course, who had sliced and very nearly diced Microsoft seven years ago as lead trial attorney for the government in its monopolization case against Microsoft.

“Honestly, it hadn’t occurred to me,” Smith said, but he sounded intrigued, and asked me to have Boies call him if he seemed interested after I spoke to him.

Alas, I’ll be getting no referral fee. By the time I finally got through to Boies today, his partner Donald Flexner had already been retained by long-time client AT&T for the same purpose. Flexner could not immediately be reached for comment.

Alas, I'll be getting no referral fee?

As Joe Wilcox pointed out on BetaNews a few days ago in an article decrying the one-sided pro-Apple media coverage of the Apple v. Samsung trial, David Boies is known for his relationships with journalists:

Trials like this one are as much about storytelling as lawyering and perhaps more when presenting to a jury -- who tells the better story inside and outside the courtroom. Much of the news reporting and US District Judge Lucy Koh's handling of the case remind me of what I saw during the US antitrust case brought against Microsoft in May 1998. Microsoft couldn't catch much of a break from US District Judge Thomas Penfield Jackson. Many rulings from the bench favored the government and more than a few unfavorably Microsoft (I covered the case and sat in the courtroom).

Interestingly, the case that unfolded in actual legal filings differed from courtroom dramatics. The paper trail better favored Microsoft's defense than the trial. But the government told the better story, and lead attorney David Boies used the media effectively doing so -- little things like meeting with reporters (Drinks, anyone?) following the day in court. Much of the reporting favored the government's case, and too often ignored Microsoft's story.

Should the court want to get into "a network of direct and indirect 'influencers'", there is more than one story to be told.

And no. I won't be on that list either.

Update: The BBC now has a fuller quote from Mueller:

"In April, I proactively announced a broadly-focused consulting relationship with Oracle, six months after announcing a similar working relationship with Microsoft," he told the BBC ahead of Oracle's filing.

"I can also certify that I wrote all of my blog posts on the trial independently, without being directed or influenced by anyone.

"All the information I received from Oracle itself was what the company uploaded to its website on each trial day. With the exception of the disclosure statement, Oracle never saw my posts, in whole or in part, before they went live."

For historians, Mueller only revealed the Microsoft association after being asked repeatedly by members of the FOSS community, and only under some pressure. Check LWN and Slashdot comments and you'll see it's so. It's not at all the case that he was eager.

The Verge's Nilay Patel:

Oracle has admitted to the court that it retains the frequently-cited Florian Mueller of the popular blog FOSS Patents as a consultant....

Oracle notes in the filing that Mueller has previously disclosed his relationship with Oracle, and says that it retained Mueller only as a consultant on "competition issues" — the company claims he wasn't hired to write about the trial. Oracle also notes that Mueller has been a vocal critic of Oracle in the past, and that he'd already begun writing about the trial at the time he was hired. Even still, Mueller's enormous volume of output on FOSS Patents fairly raises the question of when he finds the time to do any serious consulting work for Oracle in between his diligently granular tracking of several international patent lawsuits, his frequent media appearances, and his additional work as a paid consultant to Microsoft.

Mueller may have disclosed his relationship with Oracle and Microsoft in the past, but he doesn't always voluntarily disclose his financial relationships with two major Google competitors when making statements to the press — and Mueller is prolific in that regard. He's regularly quoted in a huge variety of outlets, including Bloomberg, The Wall Street Journal, and The New York Times, as a "patent expert" or "patent consultant," but almost never as "paid Oracle consultant" or "paid Microsoft consultant." That's simply misleading, and presumably the sort of under-the-table influence Judge Alsup intended to flush out with his order. We'll see how the media — and Mueller — react.

Jeff John Roberts on paidContent:
Oracle’s list is headed by patent propagandist, Florian Mueller, a long-time Microsoft consultant whose FOSS Patents blog regularly posts articles slanted against Google (see “Oracle Java patent rises like Phoenix from the ashes”). Mueller, who has no legal training, reportedly works with lawyers of his clients to issue authoritative-sounding pronouncements about patent cases.

Oracle and Mueller have attempted to defend the latter’s behavior by noting that Mueller issued a brief disclosure at the outset of the trial. Mueller did not, however, flag the conflict of interest in subsequent posts and typically does not disclose his affiliations when speaking to other media outlets. Oracle does state “Oracle retained him after he had begun write about this case; and that he was not retained to write about the case.”

Charles Cooper calls Mueller a "copyright specialist", which isn't accurate. I'd call it laughable.

Wired's Robert McMillan:

Google says it didn’t pay bloggers to write about its Java dispute with Oracle.

Google said so in a federal court filing in San Francisco on Friday, and followed it up with a statement to the press issued a few minutes later. “Our reply to the court is clear,” Google said, “no one on our side paid journalists, bloggers, or other commentators to write about this case.”

Oracle responded to the judge’s order Friday too, saying that it was paying one blogger — Florian Mueller, who comments on the case. Mueller disclosed his relationship with Oracle back in April.

When Mueller he announced, he revealed that he and Oracle had been planning it for quite a while:
After the third day of the Oracle v. Google trial, this is my first post on this litigation since the trial started. From the outset, I have been monitoring the events in San Francisco by analyzing new filings on the docket, Oracle's and Google's opening slides, media reports, and the Twitter feeds of journalists who are in the courtroom....

Disclosure of recently-formed consulting relationship relationship with Oracle

I have been following Oracle v. Google since the filing of the lawsuit in August 2010 and have read pretty much every line of each court filing in this litigation. My long-standing views on this matter are well-documented. 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. I often say things none of them would agree with. That said, as a believer in transparency I would like to inform you that Oracle has very recently become a consulting client of mine. We intend to work together for the long haul on mostly competition-related topics including, for one example, FRAND licensing terms....

When Oracle and I started talking about areas in which I could provide analysis, we thought that the Google litigation was going to be over by the time we would work together. Due to various delays, the trial now happens to occur pretty much at the start of this new relationship, and I will continue to cover this lawsuit in detail on this blog, especially during these eventful and interesting weeks. I won't have access to confidential information, but as Judge Alsup noted, this is a public trial, so there's no shortage of publicly available information.

So what does that show? That the voluminous writing about the trial happened only *after* the deal was struck. While it may be true that the contract signed does not mention blogging about the case, the way matters played out, I think we can be forgiven for noticing that at a minimum the money proved, shall we say, inspirational.

ITWorld's Brian Proffitt notes a salient detail about Mr. Brand, which highlights how ridiculous Oracle's guesswork turns out to be, and a reaction from the CCIA:

Update:The CCIA has its own stance on the connection that Oracle raised.

"We have publicly held our position on the copyrightability of APIs since Oracle was a member of our association and Google was not (we also ran the Open Source and Industry Alliance). Furthermore, Google is one of many paying members and is clearly disclosed on our website," Daniel O'Conner, Senior Director, Public Policy & Government Affairs, said in a clarification to me this afternoon. "We frequently take positions at odds with individual members when we don't agree with their underlying policy stances."

Oracle also mentioned an author who was cited within the case that Google did not.

"Jonathan Band was a co-author of the book, 'Interfaces on Trial 2.0,' which Google cited in its April 3, 2012 copyright brief. Band’s indirect relationship to Google through Google supported trade associations is discussed in the August 10, 2012 Recorder article.

Update: After this article was posted, I noted that that original Interfaces on Trial book was published in 1995, a year before Google even existed. And the edition referenced by Oracle, Interfaces on Trial 2.0, was written before Oracle acquired Sun Microsystems and the Java code.

Oracle should be a man about this, admit they goofed hiring Mueller without insisting that he add a disclaimer about any article he ever wrote about Oracle, and say they won't do things like that any more. When folks are hired, they should immediately *stop* writing about the client's case, not start up with gusto. It's unseemly, and no journalist worth his or her salt would *ever* write about a company it took money from, and if it happened, it could only happen if the journalist put a notice about the relationship prominently on every single article about the client. That's Journalism 101.

And Mueller reads Groklaw, I gather. He sent this message:

Oracle never ever suggested a topic for me to blog about -- nor did anyone close to Oracle, such as its counsel. I repeat, never ever.

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