Technology
By Alexei Oreskovic
SAN FRANCISCO, Aug 8 (Reuters) - A judge in the patentbattle between Google Inc and Oracle Corp ordered the companies to disclose the names of journalists ontheir payrolls, stunning the legal and media communities.
The highly unusual order was issued on Tuesday by U.S.District Judge William Alsup, who said he was concerned thatGoogle and Oracle or their counsel had retained or paid peoplewho may have published comment on the case.
The order, issued several months after a jury found thatGoogle did not infringe Oracle patents, hints at the possibilityof a hidden world of for-pay press coverage and injectsuncertainty into the widely followed case.
Alsup issued a one-page order but did not go into fulldetails of the court's concerns.
"I haven't seen anything quite like this before," said EricGoldman, a professor of Internet law at Santa Clara UniversitySchool of Law. "I think the judge is in uncharted territory withthis order."
Goldman said two potential reasons for the order would be ifthere were evidence that the jury had been swayed by extensivepress coverage of the case, or if the jury had relied onevidence not properly labeled as unbiased, such as a for-paynews article offered as an exhibit in the trial.
But with the trial mostly finished and few details in theorder, Goldman said it was unclear why the issue was coming upnow.
"The court is concerned that the parties and/or counselherein may have retained or paid print or Internet authors,journalists, commentators or bloggers who have and/or maypublish comments on the issues in the case," Alsup wrote inorder.
He said the information "would be of use on appeal" andcould "make clear whether any treatise, article, commentary oranalysis on the issues posed by this case are possiblyinfluenced by financial relationships to the parties orcounsel."
The companies must submit the information by noon Aug. 17.
Oracle sued Google in federal court, claiming the searchengine giant's Android mobile platform violated its patents andcopyright to Java, seeking roughly $1 billion on its copyrightclaims.
The jury ruled in Google's favor and the judge decidedOracle could not claim copyright protection on most of the Javamaterial that Oracle took to trial.
Oracle has said it will appeal.
The trial, which featured testimony from high-profiletechnology executives including Oracle Chief Executive LarryEllison and Google CEO Larry Page, has attracted heavy mediacoverage from the mainstream press and technology-focused blogs.
One of the more well-known bloggers on intellectual propertymatters and on the Oracle-Google case, Florian Mueller, revealedthree days into the trial that Oracle had recently become aconsulting client of his. People who followed the case said theywere not aware of any other similar examples.
An Oracle spokeswoman said in a statement that the companyhas "always disclosed all of its financial relationships in thismatter, and it is time for Google do to the same. We read thisorder to also include indirect payments to entities who, inturn, made comments on behalf of Google."
Google said it would comply with the order.
What impact the order could have on the case remainsunclear, legal experts said.
Barry McDonald, a constitutional law professor at PepperdineUnive0rsity, said an argument could be made that forcing thedisclosure of commentators would raise First Amendment issuesbecause it would "improperly chill speech." But he added, "Idoubt a court would be very receptive to that claim if thespeech at issue was essentially being bought by a party in somesort of misleading way."
Some observers said the order was written broadly, so thatit could be interpreted to include anyone who commented on thecase and who is affiliated with an organization that hasreceived money from one of the companies, such as someone at auniversity or non-profit organization.
Goldman, who blogged about the case, said his name wouldlikely appear on the list, since his website features adsdistributed by Google's online advertising network.
"The court has really wide discretion in granting a remedyto fix any kind of wrongdoing," said Julie Samuels, anintellectual property attorney with the Electronic FrontierFoundation.
Samuels said the judge could order a retrial, but said thatwould be a highly extreme and unlikely scenario.
The case in U.S. District Court, Northern District ofCalifornia is Oracle America, Inc v. Google Inc, 10-3561.
