This story was originally published by The Recorder, an American Lawyer affiliate.
Oracle Corp. came out swinging on Friday in response to a request by U.S. District Judge William Alsup in San Francisco for the identity of writers on the Oracle-Google trial whom the companies may have supported financially.
“Oracle notes that Google maintains a network of direct and indirect ‘influencers’ to advance Google’s intellectual property agenda,” Morrison & Foerster partner Michael Jacobs wrote in a filing Friday morning. “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.”
While bashing Google Inc., Oracle listed only three people on its side who could meet the definition Alsup laid out in his Aug. 7 order demanding the identity of “all authors, journalists, commentators or bloggers who have reported or commented on any issues in this case and who have received money” from the parties or their counsel.
Google, meanwhile, listed none, pointing instead to “general categories” of many writers who it said may or may not meet Alsup’s criteria.
Oracle listed Florian Mueller of the FOSS Patents blog, Oracle employee and blogger Hinkmond Wong, and “out of an abundance of caution” Stanford IP professor Paul Goldstein, who is of counsel at MoFo but who Oracle says hasn’t written about the case, which was tried in the Northern District earlier this summer and which Google essentially won.
Oracle said it retained Mueller to consult on competition-related matters, especially relating to standards-essential patents. It did not say when it retained Mueller, though it noted he disclosed the arrangement in an April 18 blog post. Trial began April 16, and it does not appear Mueller made further disclosures in subsequent blog items, many of them hostile to Google’s position and Alsup’s rulings. “Oracle retained him after he had begun writing about this case,” Jacobs wrote, and “he was not retained to write about the case.”
Oracle further asserted that it did not pay any employees to write about the case and doesn’t track or approve its employees’ blogs.
Google, meanwhile, said in its filing that “any number of individuals or organizations, including those with indirect or attenuated financial connections with the parties, might have expressed views regarding the case.”
“Rather than flood the court with long lists of such people,” Keker & Van Nest partner Robert Van Nest wrote, Google offers “several general categories of such individuals and organizations and requests the court’s guidance as to whether it would be useful for Google to provide more details or attempt to provide a more comprehensive list.”
Among the categories were universities and other nonprofits. “At least some of those universities and entities have representatives who have elected to comment or opine on the issues in this litigation, even though Google did not pay any of those representatives to provide that commentary,” Van Nest wrote, attaching a list of some 100 “Google Focused Research Award winners.”
Google also supports political and trade associations, “and Google is aware that some representative of these organizations have elected to comment on the case,” though not, Van Nest said, at Google’s behest.
Google’s tens of thousands of employees, its vendors, and any blogger who uses Google AdSense to generate revenues also could meet the criteria of Alsup’s order, Van Nest wrote. But it would be “extraordinarily difficult and perhaps impossible for Google to identify any and all such individuals who also happened to comment on the instant lawsuit.”
Van Nest added that the company had not paid anyone “to report or comment on any issues in the case.”
Despite identifying only three individuals on its side, Oracle was happy to provide a couple of names it thought Google should have disclosed. “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,” Jacobs wrote, attaching a Forbes article Black wrote headlined “Dangerous Copyright Claim in Oracle Case Now in Judge’s Hands.” He also noted that, as reported by The Recorder last week, Google cited in one of its briefs a book by Washington, D.C., attorney Jonathan Band without disclosing that Band does work for the CCIA and other trade groups of which Google is a member.
