decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
Google Files Supplemental List of People It Didn't Pay to Comment on Oracle v. Google ~pj
Friday, August 24 2012 @ 10:23 PM EDT

Google has filed its Supplemental Disclosure [PDF] of all the people it *didn't* pay to blog or comment in the Oracle v. Google case, as the judge, the Hon. William Alsup ordered it to do. It states once again that "neither it nor its counsel has paid an author, journalist, commentator or blogger to report or comment on any issues in this case."

The judge ordered Google to list "all commenters known by Google to have received payments as consultants, contractors, vendors, or employees”; and (b) employee-commenters at organizations who receive money from Google." So it does that, listing whoever it could find who commented on the case who ever had any association with Google, even before the case or after they no longer were associated in any way with Google:

Google has conducted a reasonable and diligent search, and has identified specific individuals and organizations in this supplemental disclosure who have commented on the issues in this case. Google did not pay for comments from any of the commenters listed in this disclosure. Nor did Google cite or rely on any of these commenters in its briefing in this case.
It's things like Tim Bray tweeting on his personal Twitter account once while a Google employee, stating that the lawsuit had been filed. Bruce Perens blogged about the case and then afterward was hired as a consultant. James Gosling blogged about the case before he was hired by Google and after he left, but not during his employment. Google attaches all the articles and tweets it found as Exhibit A and Exhibit B [PDFs], in addition to providing all the urls.

There's no one equivalent to Florian Mueller of FOSSPatents. If that was what the judge was looking for, he will be disappointed. At some point, perhaps the judge will have to give up his suspicions. There are no shills to reveal.

Google is much, much more thorough than Oracle was. To show the difference, here's what Oracle listed on employees blogging about the case:

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.
Pretty vague. Oracle didn't even look, apparently. Google did.

As for the two men Oracle specially hinted should be listed by Google, Google strongely defends both Ed Black and Jonathan Band from Oracle's assertions in its equivalent filing, which was by no means as thorough as this one by Google. Google writes that Oracle is in a position to know that the insinuations against both men were false.

Because I've been the victim of smears, I know what it feels like, so I'll highlight how Google responds to clear them of any wrongdoing. It's really a shame to have to do it. But here's what Oracle wrote:

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.

Right off the bat, we see that there is no extensive network of influencers supporting Google, as the list of those who have commented on the case, none influenced by Google to do so, is short. But on Ed Black, Google writes:
Oracle’s falsely suggests that Ed Black of the Computer and Communications Industry Association (“CCIA”) was acting under the influence of Google money when he wrote a column stating the position that APIs are not copyrightable. Oracle and its counsel had to have known that CCIA’s position on APIs pre-dated Google’s membership in CCIA—and in fact predated Google’s incorporation in 1998.

Mr. Black has publicly stated that Google did not ask him to write in support of its position, and that CCIA’s position that APIs are not copyrightable “goes back to the 1990s.” See Ex. V (“Google: No Paid Bloggers Here, Your Honor,” Aug. 17, 2012, available at http://allthingsd.com/20120817/ google-no-paid-bloggers-here-your-honor/?mod=googlenews). In fact, in December 1995, CCIA, with Mr. Black on brief, joined an amicus brief filed by the American Committee for Interoperable Systems (“ACIS”) in the Supreme Court case Lotus v. Borland, arguing that interface specifications are not copyrightable. Ex. W (amicus brief cover page). The counsel of record on that brief was Peter M.C. Choy, who at the time was a Deputy General Counsel for Sun Microsystems. Id. Mr. Choy was also chairman of the ACIS. Ex. W-1 (November 5, 1992 letter from Sun). Sun was an ACIS member and “play[ed] a leading role” in the organization. Id. at 1. ACIS’s Statement of Principles, as attached to the November 5, 1992 letter, stated: “The rules or specifications according to which data must be organized in order to communicate with another program or computer, i.e., interfaces and access protocols, are not protectable expression under copyright law.” Id. at 4. Oracle too was an ACIS member. Id. at 5; see also Ex. V (All Things Digital article dated Aug. 17, 2012). Professor Paul Goldstein, who was also on the ACIS amicus brief, was then, as he is now, of counsel at Morrison & Foerster.

See what I mean about ridiculous? And Oracle's meanness, if they knew better? It pains me to write this, but it was Michael A. Jacobs of Morrison & Foerster who signed the filing with Oracle's list, including the attacks on Black and Band. On Band, here's what Google wrote, and it's even worse regarding what Morrison & Foerster had to know even as it wrote what it wrote:
Likewise, Oracle falsely suggests that Jonathan Band’s book Interfaces on Trial 2.0 was influenced by Google money. Here, too, Oracle and its counsel had to have known that its accusations were off base.

Mr. Band has publicly stated that Interfaces on Trial 2.0 was accepted for publication in 2009—before Oracle acquired Sun Microsystems, and before the complaint in the case at bar was filed. Ex. V (All Things Digital article dated Aug. 17, 2012). Moreover, much of the book was based on even older articles, in some cases with other Morrison & Foerster lawyers as co-authors. Id.; see also Interfaces on Trial 2.0 at 50 n.100 (subsection based on 1996 article by Mr. Band and Noah Levine, then a Morrison & Foerster summer associate); id. at 64 n.144 (subsection based on 1999 article by Mr. Band and Taro Isshiki, then a Morrison & Foerster associate); see also id. at 22 n.3, 34 n.46, 37 n.50 56 n.117 & 60 n.132 (subsections based on 1995, 1996, 2000 and 2006 articles by Mr. Band).

In addition, as the title suggests and as is confirmed in the introduction, Interfaces on Trial 2.0 is a follow-up to a previous book by Mr. Band and his co-author. The prior book, Interfaces on Trial: Intellectual Property and Interoperability in the Global Software Industry, was published in 1995, years before the case at bar was filed. In the acknowledgements to that book, the authors thank, among others, Oracle’s lead counsel Michael Jacobs, as well as then Sun Microsystems Deputy General Counsel Peter Choy, and Professor Goldstein. See Interfaces on Trial: Intellectual Property and Interoperability in the Global Software Industry at xiii. At the time, Mr. Band was a Morrison & Foerster partner. Id. at 361.

I'll show you the complete list of non-shills in the filing, which I've done for you as text. I wonder if the judge realizes he's done damage to the reputations of honorable people, because there will be some out there who will take this as a list of shills, when in reality it's Google trying to figure out what in the world the judge is looking for. One name on the list is Mike Masnick of TechDirt. No, he never took money from Google, never worked for Google, has no connection to Google, except one time CCIA hired his company to do some research, and Google is a member of CCIA. Oracle used to be too, and in fact it once hired Masnick, not that they told the judge about it. But Masnick does:
Earlier today, Google did its filing and apparently found some names... including mine! Yes, I know that we've had some haters declaring for years that I'm a Google shill, so this must be the confirmation of all their conspiracy theories, rumors and attacks, right? Well, no. I'm named in the section about CCIA -- the Computer and Communications Industry Association. Why? Because CCIA sponsored some research that we did. Here's what the filing states:
The CCIA has commissioned studies by Mike Masnick, CEO of Floor64. See http://www.floor64.com/about.php. Mr. Masnick has commented on the case on the TechDirt website and on his personal friendfeed.com account. See Ex. X (available at http://www.techdirt.com/articles/20120523/11050519050/boom-jury-says-no-patentinfringement- google-oracle-case.shtml and at http://friendfeed.com/mmasnick/a3a94012/jurygoogle- did-not-infringe-on-oracle-patents).
And, yes, CCIA has commissioned a study by my company (Floor64) which I co-authored. And that's, uh, public knowledge. Here's my post back in January announcing the Sky is Rising report, in which it says, upfront, that it was sponsored by CCIA. And, of course, you can go check out the Sky is Rising report yourself directly, which has a nice big CCIA logo on the front. Hell, if you want, you can also donate some money for the ebook version -- and it, too, will come with the CCIA logo.

I'm not sure how that has anything to do with Google. Google is a CCIA member, as are a bunch of other companies. And, honestly, if you'd asked me yesterday, I would have said that I thought Oracle was a CCIA member too, because it's an organization that represents a bunch of top tech companies, including Microsoft, eBay, Sprint, Facebook, AMD, Fujitsu, Dish Networks and more. However, it appears that Oracle is not a CCIA member, though I only learned this today from the filing, which also notes that Oracle and Sun used to be CCIA members. So, I'm not sure what any of that says about anything.

And, of course, if the point of this exercise is to uncover "shills" who are really speaking on behalf of companies without disclosing it, once again this argument falls down. My position on issues related to copyright and patents has been pretty damn consistent since before Google existed. And that continues up until today. I will regularly call out Google for patent and copyright behavior that I believe is bad. And that's because I say what I think. The editorial content of this site has never been for sale, nor will it ever be. Because the only way I survive in this business is with my reputation.

Also, I'm not sure what's with the Friendfeed link in the filing. To be honest, I'd completely forgotten about Friendfeed, which I thought was shut down after Facebook bought the company. But I believe my Friendfeed just sucked in my Twitter account and Techdirt's Twitter account into a single feed. And apparently it lives on without my knowledge.

Separately, because all of this struck me as interesting, I remembered that we did some work with Oracle too! And, just as with what we did with CCIA, it was disclosed publicly at the time. Oracle (along with Intel) sponsored a section of our site, and a series of webinars that we did. And yet, Oracle did not disclose me in their original filing and I don't believe that they filed a new filing here either. Of course, as with CCIA, our relationship with Oracle did not include them having any say in editorial either. In fact, with the order as broad as it was from Judge Alsup, I'd argue that there's a much stronger argument that I should be in the Oracle filing than the Google one. But, of course, Oracle didn't include us because it was a random blog sponsorship thing they did a while back which had nothing to do with editorial (or even intellectual property issues).

In the end, this comes right back to some of the concerns that were raised about Judge Alsup's broad order in the first place. If you want to find tenuous connections, they exist. In fact, Google's filing lists out a bunch of other names (including many people who I know or consider friends), almost all of whom have a long, long history of holding the exact same positions, and where the connection to "Google money" is, at best, weak.

Like many folks, I was curious to see who would be named on both of these lists, but the order was so broad that it seems to have swept me up into it (on one side, though a broad reading says it would make more sense for me to be on the other one!), and that's silly. I'm a big boy and I can handle people not understanding the details here and attacking me, but the fact that we did unrelated research for a different organization that Google is a member of -- and that gets me named on a list of "shills" just doesn't seem right.

I don't blame him for being upset. Anyone would be. This has gone a bit too far. I think the honorable judge, and he is, needs to understand you shouldn't believe everything you read in the funny papers. There is, I believe, a concerted effort to blacken Google's good name. And it shows up in smears and insinuations in the media. I'd also give him a tip: Google is your friend -- do a little research on how Oracle fights, in the courts and in the media. It may give you a solid basis for comprehending what happened and how we got here today. And to Oracle, I don't think trying to make the FOSSPatent story look any better can achieve that goal. It is what it is. And nothing Google lists is anything like it.

And notice, once again, just as I told you would be the case, Groklaw is not on any lists, even this ridiculously feeble one that should never have had to be filed. Feeble, yes, but so damaging, and for what? Because Oracle fights mean and Google fights clean? -- and because the judge didn't realize there is a difference?

***************

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

____________

ORACLE AMERICA, INC.,

Plaintiff,

v.

GOOGLE INC.,

Defendant.

____________

Case No. 3:10-cv-03561 WHA

GOOGLE’S RESPONSE TO ORDER TO
SUPPLEMENT

Dept.: Courtroom 8, 19th Floor
Judge: Hon. William Alsup

_____________

SUPPLEMENTAL DISCLOSURE

In response to the Court’s August 20, 2012 Order to Supplement (Dkt. 1238), Google again states that neither it nor its counsel has paid an author, journalist, commentator or blogger to report or comment on any issues in this case. Pursuant to the Court’s clarifications in the Order to Supplement, the required disclosure does not include advertising revenue, disclosed experts, or gifts to universities. Id. at 1-2. It does, however, include (a) “all commenters known by Google to have received payments as consultants, contractors, vendors, or employees”; and (b) employee-commenters at organizations who receive money from Google. Id. With that in mind, Google provides the following supplemental disclosure.

As Google indicated in its initial Response (Dkt. 1237) Google supports a wide range of individuals and organizations, many of whom regularly comment on issues relevant to technology, often taking positions adverse to Google. See, e.g., http://www.google.com/ publicpolicy/ transparency.html. Google has conducted a reasonable and diligent search, and has identified specific individuals and organizations in this supplemental disclosure who have commented on the issues in this case. Google did not pay for comments from any of the commenters listed in this disclosure. Nor did Google cite or rely on any of these commenters in its briefing in this case. 1

I. CONSULTANTS, CONTRACTORS, VENDORS, OR EMPLOYEES.

Besides the specific individuals listed below, Google is not aware of any other consultants, contractors, vendors, or employees having commented on the litigation. Google did not pay for comments from any of these commenters.

A. William Patry

William Patry is currently a Google employee, and was a Google employee during the pendency of the lawsuit. In 1996, well over a decade before this lawsuit was filed, Mr. Patry authored an article entitled Copyright and Computer Programs: It’s All in the Definition, 14

Cardozo Arts & Ent. L.J. 1. Oracle cited Mr. Patry’s article in its April 3, 2012 Brief Regarding Copyright Issues (Dkt. 853).

B. Timothy Bray

Tim Bray is currently a Google employee, and was a Google employee during the pendency of the lawsuit. On August 12, 2010, Mr. Bray wrote a post on his personal Twitter account in response to Oracle’s filing of the lawsuit. See Ex. A (available at https://twitter.com/timbray/status/21023407881). In that post Mr. Bray noted that he was speaking only for himself as an individual. Id.

C. Bruce Perens

Bruce Perens served as a consulting expert related to the lawsuit for Google. Mr. Perens commented on the lawsuit during its pendency, but before being engaged by Google. See Ex. B (“Oracle Sues Google For Infringing Java Patents,” available at http://web.archive.org/web/20110104025930/http://perens.com/blog/d/2010/8/13/32/); Ex. C (“Oracle v. Google Java Lawsuit - Rationale Becoming More Clear,” available at http://web.archive.org/web/ 20110104031315/http://perens.com/blog/d/ 2010/8/13/33/); see also (http:// news.slashdot.org/story/10/08/13/0255205/ oracle-sues-google-for-infringing-java-patents).

D. Prof. Mark Lemley

Professor Mark Lemley serves as outside counsel to Google in unrelated cases, as does the law firm at which he is a partner: Durie Tangri. 2

Prof. Lemley provided commentary for press reports related to the lawsuit. For example, Prof. Lemley was quoted in a San Francisco Chronicle article by James Temple dated April 25, 2012. See Ex. D (available at http:// www.sfgate.com/business/article/ Oracle-Google-case-shows-patent-system-flaws-3507618.php). Prof. Lemley was also quoted in a May 7, 2012 article by Brendan Bailey in the Mercury News. See Ex. E (available at (http://www.mercurynews.com/business/ci_20566834/google-oracle-trial-verdict-ruling-

2

copyright-jury-mistrial?IADID=Search-www.mercurynews.com- www.mercurynews.com). And Prof. Lemley provided commentary regarding the lawsuit for a May 7, 2012 KQED report by Cy Musiker. See Ex. F (text available at http://www.kqed.org/news/story/2012/ 05/07/93195/mixed_ruling_in_oracle_google_infringement_case ?category=bay+area).

Prof. Lemley also provided commentary via his personal Twitter account. For example, on May 7, 2012, Prof. Lemley posted a comment regarding the copyright verdict. See Ex. G (available at https:// twitter.com/marklemley/statuses/199605924862771200). On May 23, 2012, Prof. Lemley also re-tweeted another Twitter post related to an interview with the foreperson for the jury in this lawsuit. See Ex. H (available at https://twitter.com/ marklemley/statuses/205429756366307331)

E. James Gosling

James Gosling left Oracle America, Inc. in April 2010, before the filing of the lawsuit. Mr. Gosling was employed by Google from March 2011 to August 2011. Mr. Gosling maintains a personal blog: http://nighthacks.com/ roller/jag/. Google is not aware of Mr. Gosling blogging about the lawsuit during his employment at Google. Out of an abundance of caution, because Mr. Gosling was at one time paid by Google (as a Google employee), Google notes that Mr. Gosling did blog about the lawsuit before he was employed by Google, see, e.g., Ex. I (http://nighthacks.com/ roller/jag/entry/the_shit_finally_hits_the). Mr. Gosling also blogged about the lawsuit after his employment with Google ended. Specifically, during trial, Mr. Gosling wrote a blog post about the case. See Ex. J (available at http://nighthacks.com/roller/jag/entry/my_attitude_on_oracle_v). And Mr. Gosling also commented about the outcome of the trial. See Ex. K (available at http://nighthacks.com/roller/jag/entry/ovg_it_s_finally_almost). Google does not know whether and to what extent Mr. Gosling may have been receiving compensation from Oracle during the pendency of the lawsuit under the terms of any agreement between Mr. Gosling and Oracle.

3

F. Timothy B. Lee

Timothy Lee is a former engineering intern at Google. He left Google in late August 2010, shortly after Oracle filed the lawsuit. Mr. Lee has been writing for the website Ars Technica since late 2010, and began writing about this lawsuit in 2011. At that time he was no longer employed (or being paid) by Google. Mr. Lee’s articles about this lawsuit include recent articles about the Court’s orders seeking disclosure of the parties’ relations with commentators. See Ex. L (“Judge: Google didn't follow ‘show your shills’ order,” Aug. 20, 2012, available at http://arstechnica.com/tech-policy/ 2012/08/judge-google-didnt-follow-show-your-shills-order/); Ex. M (“Oracle, Google still bickering over paid shills long after trial,” Aug. 17, 2012, available at http:// arstechnica.com/tech-policy/2012/08/ shill-count-oracle-1-google-0/); Ex. N (“With anti-shill order, Google/Oracle judge enters ‘uncharted territory,’” Aug. 7, 2012, available at http://arstechnica.com/tech-policy/2012/08/ with-anti-shill-order-googleoracle-judge-enters- uncharted-territory/); and Ex. O (“‘Name your shills,’ judge orders Oracle, Google,” Aug. 7, 2012, available at http:// arstechnica.com/tech-policy/2012/08/ name-your-shills-judge-orders- oracle-google/). Mr. Lee’s articles about the lawsuit also include commentary regarding the Court’s requests for further briefing regarding copyrightability issues. See Ex. P (“Oracle v. Google judge asks for comment on EU court ruling,” May 3, 2012, available at http://arstechnica.com/tech-policy/ 2012/05/oracle-google-judge-asks-for-comment-on-eu-court-ruling/).

Mr. Lee has also published posts via his personal Twitter account. For example, on August 7, 2012, Mr. Lee re-tweeted a post linking to his Ars Technica article “‘Name your shills,’ judge orders Oracle, Google.” See Ex. Q (available at https://twitter.com/arstechnica/status/232927734421143552). Subsequently, Mr. Lee posted that he might be on Google’s list of disclosed persons because he finished his internship for Google shortly after Oracle filed this lawsuit. See Ex. R (available at https://twitter.com/ binarybits/status/232936371529060352). In a separate post on Twitter that same day Mr. Lee noted that, while he had received some money from Google while in graduate school, he had received no money from Google since becoming a full-time journalist. See Ex. S

4

(available at https://twitter.com/ binarybits/status/233008099500380160). On August 17, 2012, Mr. Lee also re-tweeted a Twitter post authored by Paul Alan Levy. See Ex. T (available at https://twitter.com/ paulalanlevy/status/238020508682174464). On August 8, 2012, Mr. Lee posted a message on Twitter that quoted from a Twitter post by Mr. Levy. See Ex. U (available at https://twitter.com/ binarybits/status/233332071257501696).

II. EMPLOYEE-COMMENTERS AT ORGANIZATIONS WHO RECEIVE MONEY
FROM GOOGLE

Besides the specific individuals listed below, Google is not aware of any other employee-commenters having commented on the litigation. Google did not pay for comments from any of these commenters.

A. Computer and Communications Industry Association

Oracle’s falsely suggests that Ed Black of the Computer and Communications Industry Association (“CCIA”) was acting under the influence of Google money when he wrote a column stating the position that APIs are not copyrightable. Oracle and its counsel had to have known that CCIA’s position on APIs pre-dated Google’s membership in CCIA—and in fact predated Google’s incorporation in 1998.

Mr. Black has publicly stated that Google did not ask him to write in support of its position, and that CCIA’s position that APIs are not copyrightable “goes back to the 1990s.” See Ex. V (“Google: No Paid Bloggers Here, Your Honor,” Aug. 17, 2012, available at http://allthingsd.com/20120817/ google-no-paid-bloggers-here-your-honor/?mod=googlenews). In fact, in December 1995, CCIA, with Mr. Black on brief, joined an amicus brief filed by the American Committee for Interoperable Systems (“ACIS”) in the Supreme Court case Lotus v. Borland, arguing that interface specifications are not copyrightable. Ex. W (amicus brief cover page). The counsel of record on that brief was Peter M.C. Choy, who at the time was a Deputy General Counsel for Sun Microsystems. Id. Mr. Choy was also chairman of the ACIS. Ex. W-1 (November 5, 1992 letter from Sun). Sun was an ACIS member and “play[ed] a leading role” in the organization. Id. at 1. ACIS’s Statement of Principles, as attached to the November 5, 1992 letter, stated: “The rules or specifications according to which data must be organized in order to

5

communicate with another program or computer, i.e., interfaces and access protocols, are not protectable expression under copyright law.” Id. at 4. Oracle too was an ACIS member. Id. at 5; see also Ex. V (All Things Digital article dated Aug. 17, 2012). Professor Paul Goldstein, who was also on the ACIS amicus brief, was then, as he is now, of counsel at Morrison & Foerster. 3 Ex. W (amicus brief cover page).

The CCIA has commissioned studies by Mike Masnick, CEO of Floor64. See http://www.floor64.com/about.php. Mr. Masnick has commented on the case on the TechDirt website and on his personal friendfeed.com account. See Ex. X (available at http://www.techdirt.com/articles/20120523/11050519050/ boom-jury-says-no-patent-infringement-google-oracle-case.shtml and at http:// friendfeed.com/mmasnick/a3a94012/jury-google-did- not-infringe-on-oracle-patents).

B. Jonathan Band

Likewise, Oracle falsely suggests that Jonathan Band’s book Interfaces on Trial 2.0 was influenced by Google money. Here, too, Oracle and its counsel had to have known that its accusations were off base.

Mr. Band has publicly stated that Interfaces on Trial 2.0 was accepted for publication in 2009—before Oracle acquired Sun Microsystems, and before the complaint in the case at bar was filed. Ex. V (All Things Digital article dated Aug. 17, 2012). Moreover, much of the book was based on even older articles, in some cases with other Morrison & Foerster lawyers as co-authors. Id.; see also Interfaces on Trial 2.0 at 50 n.100 (subsection based on 1996 article by Mr. Band and Noah Levine, then a Morrison & Foerster summer associate); id. at 64 n.144 (subsection based on 1999 article by Mr. Band and Taro Isshiki, then a Morrison & Foerster associate); see also id. at 22 n.3, 34 n.46, 37 n.50 56 n.117 & 60 n.132 (subsections based on 1995, 1996, 2000 and 2006 articles by Mr. Band).

In addition, as the title suggests and as is confirmed in the introduction, Interfaces on Trial 2.0 is a follow-up to a previous book by Mr. Band and his co-author. The prior book, Interfaces on Trial: Intellectual Property and Interoperability in the Global Software Industry, was published in 1995, years before the case at bar was filed. In the acknowledgements to that book, the authors thank, among others, Oracle’s lead counsel Michael Jacobs, as well as then Sun Microsystems Deputy General Counsel Peter Choy, and Professor Goldstein. See Interfaces on Trial: Intellectual Property and Interoperability in the Global Software Industry at xiii. At the time, Mr. Band was a Morrison & Foerster partner. Id. at 361.4

C. Electronic Frontier Foundation

The Electronic Frontier Foundation (“EFF”) is a non-profit organization whose mission is to “defend[] free speech, privacy, innovation, and consumer rights,” see https://www.eff.org/about, with long-standing public views on the importance of interoperability. See, e.g., https://www.eff.org/cases/blizzard-v-bnetd. Google has contributed to the EFF for years before the complaint in the case at bar was filed.

Michael Barclay, now a volunteer fellow for the Electronic Frontier Foundation, commented on the case on his blog, IP Duck.5 See Ex. Y (available at http:// ipduck.blogspot.com/2012/05/judge-alsup-rules-that- java-apis-are.html); Ex. Z (available at http://ipduck.blogspot.com/2012/ 05/phase-one-verdict-in-oracle-v-google.html). Mr. Barclay’s interest in the copyrightability of software interfaces, however, long predates his association with EFF, and in fact predates Google’s existence—Mr. Barclay represented Borland in Lotus v. Borland. Ex. AA (Borland’s Supreme Court merits brief).

Julie Samuels is a Staff Attorney at the EFF focusing on intellectual property issues. See https://www.eff.org/about/ staff/julie-samuels. In that capacity, Ms. Samuels frequently comments on intellectual property cases of note, including this case. See Ex. BB (“No Copyrights on APIs: Judge Defends Interoperability and Innovation,” May 31, 2012, available at https://www.eff.org/deeplinks/2012/05/ no-copyrights-apis-judge-defends-interoperability-and-innovation); Ex. CC (“Oracle v. Google and the Dangerous Implications of Treating APIs as

7

Copyrightable,” May 7, 2012, available at https://www.eff.org/deeplinks/ 2012/05/oracle-v-google-and-dangerous-implications-treating-apis-copyrightable); Ex. DD (“Oracle v. Google Shows the Folly of U.S. Software Patent Law,” April 23, 2012, available at http://www.wired.com/ wiredenterprise/2012/04/opinion-samuels-google-oracle/); Ex. EE (“Could an Oracle Win Against Google Blow Up the Cloud?,” May 7, 2012, available at http://www.wired.com/wiredenterprise/ 2012/05/oracle_clou/); Ex. FF (“What’s at stake in Oracle v. Google?,” May 11, 2012, available at http://www.computerworld.com.au/article/424370/ what_stake_oracle_v_google_/#closeme); Ex. GG (“Legal experts decipher Oracle-Google Verdict,” May 7, 2012, available at http://news.cnet.com/8301-1001_ 3-57429590-92/legal-experts-decipher-oracle-google-verdict/); Ex. HH (“Google Beats Oracle Patent Claim,” May 23, 2012, available at http://www.informationweek.com/ software/operating-systems/google-beats-oracle- patent-claim/240000926).

D. Public Knowledge

Public Knowledge is a non-profit organization whose mission is to “preserv[e] the openness of the Internet and the public’s access to knowledge; promot[e] creativity through balanced copyright; and uphol[d] and protect[t] the rights of consumers to use innovative technology lawfully.” See http://www.publicknowledge.org/about. Google has contributed to Public Knowledge for years before the complaint in the case at bar was filed. Public Knowledge has commented on the case. See Ex. II (available at http://www.publicknowledge.org/ blog/copyright-compatibility); Ex. JJ (available at http:// www.publicknowledge.org/ blog/gpl-does-not-depend-copyrightability-apis).

E. Center for Democracy and Technology

Jon Miller is at the Center for Democracy and Technology (“CDT”) as a 2012 Google Public Policy Fellow. His fellowship focuses on digital copyright, government surveillance, and cybersecurity policy. On June 13, 2012, Mr. Miller authored a blog post on the CDT website commenting on the outcome of the lawsuit. See Ex. KK (“Oracle v. Google: A Win for Software

8

Everywhere,” available at https:// www.cdt.org/blogs/cdt/1306oracle-v-google-win-software-everywhere). Google is not aware of any other posts or commentary by Mr. Miller.

F. Lauren Weinstein at Vortex Technology

Lauren Weinstein is affiliated with Vortex Technology, an organization that has conducted research for Google. Mr. Weinstein has commented on the case on his personal Google+ feed. See, e.g., Ex. LL (available at https:// plus.google.com/s/Lauren%20weinstein%20%26%20google %20%26%20oracle).

G. Competitive Enterprise Institute

Competitive Enterprise Institute (“CEI”) is “a non-profit public policy organization dedicated to advancing the principles of limited government, free enterprise, and individual liberty.” See http://cei.org/about-cei. Google has contributed to CEI for years before the complaint in the case at bar was filed. CEI has commented about the case. See Ex. MM (available at http://cei.org/citations/ apple-samsung-chiefs-pick-their-marbles-and-go-home).

Dated: August 24, 2012

KEKER & VAN NEST LLP

/s/ Robert A. Van Nest
ROBERT A. VAN NEST

Attorneys for Defendant
GOOGLE INC.

____________
1 Google referenced Jonathan Band’s book, Interfaces on Trial 2.0 (MIT Press 2011), in its April 3, 2012 Copyright Liability Trial Brief. As explained in Section II.B., below, Mr. Band’s book is not a “comment” on this case—it was accepted for publication before Oracle filed this lawsuit.

2 Google does not interpret the Court’s initial Order nor the Order to Supplement as requiring a response regarding Google’s counsel in the litigation.

3 The brief lists Professor Goldstein’s affiliation with Stanford Law School.

4 His co-author worked for Fujitsu.

5 Mr. Barclay, before retiring, was a partner at Wilson Sonsini Goodrich & Rosati, which represents Google in various matters, but not the case at bar.

9


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )