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
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