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MORRISON & FOERSTER LLP MICHAEL A. JACOBS (Bar No. 111664) firstname.lastname@example.org KENNETH A. KUWAYTI (Bar No. 145384) email@example.com MARC DAVID PETERS (Bar No. 211725) firstname.lastname@example.org DANIEL P. MUINO (Bar No. 209624) email@example.com 755 Page Mill Road, Palo Alto, CA 94304-1018 Telephone: (650) 813-5600 / Facsimile: (650) 494-0792 BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) firstname.lastname@example.org 333 Main Street, Armonk, NY 10504 Telephone: (914) 749-8200 / Facsimile: (914) 749-8300 STEVEN C. HOLTZMAN (Bar No. 144177) email@example.com 1999 Harrison St., Suite 900, Oakland, CA 94612 Telephone: (510) 874-1000 / Facsimile: (510) 874-1460 ORACLE CORPORATION DORIAN DALEY (Bar No. 129049) firstname.lastname@example.org DEBORAH K. MILLER (Bar No. 95527) email@example.com MATTHEW M. SARBORARIA (Bar No. 211600) firstname.lastname@example.org 500 Oracle Parkway, Redwood City, CA 94065 Telephone: (650) 506-5200 / Facsimile: (650) 506-7114 Attorneys for Plaintiff ORACLE AMERICA, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE AMERICA, INC. Plaintiff, v. GOOGLE INC. Defendant. Case No. CV 10-03561 WHA ORACLE’S STATEMENT REGARDING FINANCIAL RELATIONSHIPS WITH COMMENTATORS Dept.: Courtroom 8, 19th Floor Judge: Honorable William H. Alsup
ORACLE’S STATEMENT REGARDING FINANCIAL RELATIONSHIPS WITH COMMENTATORS CASE NO. CV 10-03561 WHA sf-3184259
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Oracle welcomes the Court’s August 7, 2012 Order, as it believes that much of the copyright and fair use commentary that occurred outside of the courtroom before and during the pendency and trial of this case was instigated by Google or its direct or indirect representatives. Pursuant to the Court’s Order, Oracle identifies the following authors, journalists, commentators, or bloggers who have reported or commented on any issues in this case and who have received money (other than normal subscription fees) from Oracle or its counsel during the pendency of this action: 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. 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. 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. 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
ORACLE’S STATEMENT REGARDING FINANCIAL RELATIONSHIPS WITH COMMENTATORS CASE NO. CV 10-03561 WHA sf-3184259
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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.
Dated: August 17, 2012
MORRISON & FOERSTER LLP By: _ /s/ Michael A. Jacobs Attorneys for Plaintiff ORACLE AMERICA, INC.
ORACLE’S STATEMENT REGARDING FINANCIAL RELATIONSHIPS WITH COMMENTATORS CASE NO. CV 10-03561 WHA sf-3184259
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Oracle v. Google trial: evidence of willful infringement outweighs claims of approved use
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. Fortunately for the general public, Judge William Alsup is all for transparency. The first of the three trial phases is about copyright liability, followed by a patent liability phase and a remedies phase. The parties' opening presentations addressed a number of copyright-specific issues but placed the emphasis on the general issue of infringement. Oracle's first slide right after the title page showed the famous Lindholm email, which Google had failed seven times to get excluded from this trial. It constitutes an admission that Google felt, shortly before this lawsuit, that it needed a license. Oracle brought the Lindholm email up again on pages 24 and 87, but also presented plenty of other evidence, some of which I'll address further below. Google knew that this was going to happen and designed its own presentation to counter the impression of recklessness and lawlessness by suggesting that Sun (before it was acquired by Oracle) welcomed and supported the way Android makes use of Java. Presumably the parties wanted to show the best evidence right at the start, hoping to shape the way jurors are going to look at the tons of information they will receive in the coming weeks. Google's lawyers undoubtedly made the most out of the evidence they found in favor of their equitable defenses, but there is only so much that presentation can do when substance is lacking. Oracle's evidence of reckless infringement appears to be fundamentally stronger, for several reasons that I'll discuss in the following.
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Oracle's opening statement presented ten documents indicating willful infringement, from a five-year period in the middle of which Google launched Android Certain Google-internal documents indicate in no uncertain terms an awareness of a need for a license at different points in time during the five-year period from Google's decision to use Java to the eve of the filing of this lawsuit: 1. July 26, 2005: "Must take license from Sun" (page 21 of Oracle's slide deck) 2. October 11, 2005 (p22 and p87): "[option] 2) Do Java anyway and defend our decision, perhaps making enemies along the way." 3. February 10, 2006 (p43): "This has mostly taken the form of helping negotiate with my old team at Sun for a critical license." 4. March 24, 2006 (p73): "Java.lang api's are copyrighted." 5. May 14, 2006 (p45): "How are we doing on the Sun deal? Its [sic] it time to develop a non-Java solution to avoid dealing with them?" 6. May 11, 2007 (p48): "I don't see how we can work together and not have it revert to arguments of control. I'm done with Sun [...] They won't be happy when we release our stuff, [...]" 7. August 11, 2007 (p50): "Sun chose GPL for this exact reason so that companies would need to come back to them and take a direct license and pay royalties." 8. March 24, 2008 (p52): "2) Can we demonstrate the tooling, emulator, developer environment, etc? Yes, one-on-one only please, where you know exactly who you are talking to. Please don’t demonstrate to any sun employees or lawyers." 9. May 30, 2008 (p51): "These restrictions prevent Apache Harmony [a codebase parts of which Google used to build Android] from independently implementing Java SE (Harmony can't put those restrictions on their own users and still Apache license the code) not to mention Android (though that's water under the bridge at this point)." Apple and Samsung CEOs to meet on May 21 and 22 fo... Just discovered: Apple hit Motorola and HTC with s... Oracle and Google comment on (copyright-related) d... Former Sun chief about Google: 'immune to copyrigh... Open-sourcing of Java and API copyrightability are... Motorola virtually concedes infringement of oversc... Judge plans to inform jury that structure, sequenc... Judge denies assertion of revived Oracle patent bu... Oracle 'intends to assert [revived] patent in Phas... Copyrightability of Java APIs would be consistent ... Preliminary ITC ruling holds Apple to infringe a 3... Samsung filed its defenses against Apple's second ... Motorola said Seattle FRAND case could affect ITC ... Court to hold hearing on July 5 to discuss if Appl... Oracle Java patent rises like Phoenix from the ash... Oracle asks court to clear up potential confusion ... The pragmatic approach to the copyrightability of ... Andy Rubin knew that a cleanroom implementation o... Motorola told judge its $4 billion royalty demand ...
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10. August 6, 2010, the Lindholm email (p3, p24, p87): "We've been over a bunch of [technical alternatives to Java for Android], and they they all suck. We conclude that we need to negotiate a license for Java under the terms we need." Google counters the ten items listed above by pointing to two late2007 documents: a blog post in which then-Sun CEO Jonathan Schwartz, in Google's words, "publicly applaud[ed]" Android, and an email from Schwartz to then-Google CEO Eric Schmidt offering to "support" the announcement of Android. To "applaud" and to "support" are reactions that fall far short of granting a license. In my 25+ years in the technology industry, I've seen and authored or coauthored countless license agreements spanning dozens of pages in each case (not even counting exhibits), but I've never seen such a thing as a license grant, between two large players in the technology industry, that would consist of only a sentence or two -- nor have I ever seen a license grant that didn't contain the magic word "license". Unsurprisingly, other pieces of evidence (items 8, 9 and 10 above) show that Google still had legal cocnerns and later concluded it (still) needed a license. Google also points to what Oracle CEO Larry Ellison said in June 2009 about Sun "opening up Java, giving Java to the world". That was shortly after Oracle had announced a merger agreement with Sun, but more than six months before the deal was formally closed -and those statements were broad and general, as opposed to a promise to grant a retroactive, restriction-free and royalty-free license to anyone after the closing of the deal. The Lindholm email was written almost three years after what Google now suggests constituted a license grant. Back in August 2011, when I published a passage of the Lindholm email that showed up in one of Judge Alsup's orders, I stressed that "the combination of the Rubin email [item #2 above) and the Lindholm draft email is very strong -far stronger than any of the two documents on its own", pointing to the fact that they span a long period. Oracle's opening statement on Monday showed seven more pieces of evidence from the period between those two documents, and one that even predates the first. Judge Alsup's preliminary assessment of the evidence long before the trial During those 20 months of litigation, I never saw documents or reports from public hearings according to which Judge Alsup would The Lindholm testimony and the reality of Java lic... Motorola's patent enforcement against Apple will c... Oracle and Google find common denominator for tell... Motorola under pressure in Germany from Microsoft ... Oracle v. Google trial: evidence of willful infrin... Samsung asserts eight more patents against Apple i... Apple and Samsung CEOs and chief lawyers agree to ... Apple keeps up pressure on Motorola Mobility with ... German Apple lawsuit against HTC over multilingual... Motorola calls $4 billion royalty figure 'misleadi... ITC judge pushes back Samsung case against Apple b... Apple appeals ITC dismissal of complaint against M... Deficiencies of US$280,000 bond may require Apple ... Microsoft asks ITC to delay decision on Motorola's... German court might ban iPhone and iPad again withi... The significance of May 7 for the temporary restra... Apple is allowed (at long last) to intervene in Lo... Mannheim Regional Court postponed MotorolaMicroso...
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have described Google's references to Jonathan Schwartz' applauding blog post and support-offering email as extremely powerful, but he said some important things about certain evidence of willful infringement. For example, in July 2011 the judge noted, in light of item #2, that Google engaged in "Soviet-style negotiation" (defined as "What's mine is mine and what's yours is negotiable") and "may have simply been brazen, preferring to roll the dice on possible litigation rather than to pay a fair price". When he became aware of the Lindholm email, he told Oracle's counsel that it's "a pretty good document for [Oracle]" that "ought to be, you know, big for [Oracle] at the trial". He warned Google's counsel that a legendary San Francisco trial lawyer "needed a document like [the Lindholm email], and the Magna Carta, and he won every case", so in the judge's opinion, Google was "going to be on the losing end of this document, and with Andy Rubin on the stand". He then encouraged Google to "think about that". Asymmetrical efforts to exclude evidence This is only extrinsic evidence, but it also says something that Google went to extreme lengths to fight some of the incriminating evidence while Oracle contented itself with motions that are the normal course of business in litigation and easily accepted when those motions to strike or exclude were denied. In this blog post I described the first five of Google's seven failed attempts to withhold the Lindholm email (just one of the ten pieces of evidence shown above) from the jury. Subsequently, Google made two more attempts. It unsuccessfully appealed the district court's decisions on the Lindholm email to the Federal Circuit, and brought a motion in limine to exclude it as misleading (which was denied; see item 2 in this blog post). "Evasive" Google CEO Larry Page "dodges" questions Several media reports from Day 3 of the trial independently confirm that Google CEO Larry Page was unconvincing in his second appearance before the jury -- the one in which he was, in particular, quizzed about the Lindholm email: • Los Angeles Times: "Google CEO Larry Page evasive in Oracle patent suit testimony", "Page rarely made eye contact with Oracle's feisty attorney" • Wall Street Journal: "Page did not appear to endure Wednesday's proceedings as well as he had the previous day. ► 2011 (335) Microsoft wins in U.S. court, prevents Motorola fr... ITC judge postpones MicrosoftBarnes&Noble decisio... Microsoft-Motorola case in Seattle: claim construc... Oracle and Google are still $700 million apart on ... ITC postpones decision on Microsoft complaint agai... Microsoft brushes aside Motorola's arguments again... Judge Posner denies Motorola motion to throw out A... Oh no: German courts and clueless politicians want... Motorola doesn't want to be barred by a U.S. court... Analysis of Apple's claim construction win over Sa... John 'Mighty' Quinn is readying to represent Samsu... Apple drops patent on centralized event alerts fro... Apple is suing HTC in Munich over the two patents ... Munich court denies Microsoft a preliminary injunc... European Commission investigates Motorola Mobility... Patent abuse hurts the German economy: Microsoft h... ► March (45) ► February (42) ► January (40)
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He frequently stared up at the courtroom ceiling as he was pressed for direct responses by both Oracle's counsel and Alsup." • Wired: "Google Boss Takes Stand in Oracle Trial, Dodges Android Questions": "Page was slow to answer questions — often failing to making eye contact — and he ended up saying very little. In many instances, Judge William Alsup spoke up to instruct Page to answer with 'yes,' 'no,' or 'I'm not sure,' and Page typically chose the later — or 'I don’t recall.'" (There are other great reports from the third trial day, but I picked the three above because of what they say about Page's evasiveness.) As I told the L.A. Times, I believe the problem for Larry Page is that he was personally very much involved with the decision to use Java without a license. Now he's the CEO of the company and particularly afraid of making a concession: in that case he would be blamed not only for the outcome of the litigation but also for the original decision. I don't mean to say that his denial of recollection was dishonest (considering that he must have received huge numbers of emails over the years), but it certainly does contrast with some evidence of his personal involvement. On Thursday, there will be more discussion of the Lindholm email. Tim Lindholm himself is on Oracle's list of the anticipated next ten witnesses, and so is Andy Rubin. Disclosure of recently-formed consulting 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 competitionrelated topics including, for one example, FRAND licensing terms. We've known each other ever since I vocally opposed Oracle's acquisition of Sun Microsystems (not because of Java), but that's history as I fully respect the European Commission's clearance decision and the subsequent closing of the deal. When Oracle and I
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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. Last year I mentioned my work on a Microsoft-commissioned study on the worldwide use of FRAND-pledged patents, and it's no secret that I have multiple clients in the financial services industry. Nothing has changed about my existing working relationships in any way. I am proud to serve these first-rate clients, and I will continue to work hard to provide all of them -- and all of my readers -- with reliable and accurate analysis. If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
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award-winning intellectual property activist-turned-analyst with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models
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Lehrman Group, Coleman Research Group) serving the financial community. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof.)
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BBC News - Oracle and Google are ordered to reveal paid bloggers Page 1 of 2 Case3:10-cv-03561-WHA Document1236-2 Filed08/17/12 Page2 of 3
8 August 2012 Last updated at 13:59 GMT
Oracle and Google are ordered to reveal paid bloggers
Oracle and Google have been ordered to reveal the names of reporters, bloggers and other commentators they have paid. The demand, made by a US judge, follows an intellectual property battle the firms fought in court. The judge said he was "concerned" that financial relationships may have influenced analysis published in newspapers and on the net. He added the information would be useful to an appeal hearing. The two firms have been given until 17 August to provide the information. Oracle - which licenses products based on the Java programming language - had pursued a patent and copyright challenge alleging it was owed about $1bn (£640m) in compensation for Google's use of its technologies in the Android system. But the jury ruled that the patents involved had not been breached, while a judge dismissed the key copyright claim - a decision against which Oracle said it would "vigorously appeal". Regarding the latest development Oracle said it "always disclosed all of its financial relationships in this matter, and it is time for Google to do the same". Google said it would comply with the order.
Several instances of the firms paying commentators are already known. 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."
Google is also known to have given money to the Electronic Frontier Foundation.
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The San Francisco-based campaign group posted articles including "Oracle v Google shows the folly of US software patent law" during the case. The search giant paid $1m to the organisation in 2011 after being fined over privacy-rights violations which the EFF had championed. Google had been given a choice about whom it should pay compensation to, since if it had shared out the cash among its users the sums paid out would have been less than the cost of distributing them. Fortune Magazine has also reported that the Android developer had also given the EFF smaller voluntary donations in 2010 and 2011.
It is not clear what both parties will count as qualifying as payments. Santa Clara University professor Eric Goldman told Reuters he might appear on Google's declaration list because he has written about the case while featuring Google-distributed adverts on his site. Tim Luckhurst, professor of journalism at the University of Kent, said the case flagged up a wider concern he had about the way some writers operated. "One of the key aspects that this highlights is the crucial difference between bloggers and professional journalists," he said. "Journalists are professionals who understand their obligation to their listeners and viewers - not the interested parties about which they are writing. Many bloggers ignore that distinction."
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BBC © 2012 The BBC is not responsible for the content of external sites. Read more.
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ALM Properties, Inc. Page printed from: The Recorder Back to Article
Alsup Goes Fishing With Wide Net
In his search for paid-off tech-law pundits, the federal judge presiding over the Googacle case has taken a bold step. What sort of haul can he expect? Scott Graham 2012-08-10 04:04:26 PM SAN FRANCISCO — When U.S. District Judge William Alsup ordered Oracle Corp., Google Inc. and their counsel to disclose financial relationships with any bloggers, journalists and academics who've written about their smartphone megatrial, it set off a raft of questions among technology lawyers: Does Alsup have the power to do that? What prompted him to issue this order on his own motion? And which authors are likely to be exposed as "shills" for the technology titans? Although the answers were still unclear as of today, some rough outlines were starting to take shape. Alsup likely does have the power to require such disclosures, though perhaps only to the extent he can show an improper attempt at influencing the court or jury. The judge may have been motivated by a newspaper's report last month on paid punditry, or a dispute over pretrial publicity in another high-profile smartphone case. As for who might be outed as an alleged "shill," much will be determined by how broadly the parties construe Alsup's order. One prominent blogger who's covered the case already disclosed a few months ago that he is a consultant to Oracle. Oracle, meanwhile, says it reads the order to include "indirect payments" to authors. If that's correct, the order would appear to cover someone like Jonathan Band, a Washington, D.C.-based copyright expert and lobbyist for Googlebacked trade associations whose 2011 book Interfaces on Trial 2.0 is cited in Google briefs. Both Google and Oracle have said they will comply with the order, which requires the parties to identify by Aug. 17 "all authors, journalists, commentators or bloggers who have reported or commented on any issues in this case and who have received money (other than normal subscription fees) from the party or its counsel during the pendency of this action." Even if limited to direct payments, the order could sweep up a large number of writers who have weighed in on the case, said Santa Clara University School of Law professor Eric Goldman. The technology law expert has written about the trial on his blog, which in turn generates modest revenues via Google AdSense, so he figures he could meet Alsup's definition. "If the parties make the disclosures fully in compliance with the order, then we're going to have a ton of false positives,"
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said Goldman. He worries that "could lead to a witch hunt mentality" while Alsup takes the disclosures under review.
THIS ISN'T OVER
It's unclear what prompted Alsup to issue his order. Neither party appears to have filed a motion for disclosure. "The court is concerned that the parties and/or counsel herein may have retained or paid print or Internet authors, journalists, commentators or bloggers who have and/or may publish comments on the issues in this case," Alsup wrote in the one-page order issued Aug. 7, without saying what had led to his concern. The timing of the order also surprised observers, coming more than two months after a jury rejected claims that Google's Android operating system had infringed Java programming language patents held by Oracle, and long after Alsup's denial of Oracle's copyright claims. "Although proceedings in this matter are almost over," Alsup acknowledged, "they are not fully over yet and, in any event, the disclosure required by this order would be of use on appeal or on any remand to make clear whether any treatise, article, commentary or analysis on the issues posed by this case are possibly influenced by financial relationships to the parties or counsel." Veteran IP attorney Neil Smith of Ropers Majeski Kohn & Bentley speculated on a couple of possible motivations. On July 27, San Jose Mercury News columnist Chris O'Brien published a provocative article about the "vast shadow army of law firms, public relations specialists, trade organizations, pundits, think tanks and academics" that dominate debate over Google, both for and against. And in an April 18 blog post, Florian Mueller of FOSS Patents, who has written prolifically about Oracle v. Google, disclosed that Oracle is a consulting client of his. Mueller has been sharply critical of Alsup's copyright ruling. "The appeals court will have to decide whether a sweeping denial of copyrightability is in line with statutory law and case law," he wrote May 31. Mueller's disclosure of his paid relationship with Oracle combined with the Mercury News article may have prompted Alsup to wonder what other writers are being paid by the litigants, Smith speculated. Oracle claims it welcomes Alsup's order. "Oracle has always disclosed all of its financial relationships in this matter and it is time for Google to do the same," company spokeswoman Deborah Hellinger asserted shortly after Alsup issued his order. "We read this order to also include indirect payments to entities who, in turn, made comments on behalf of Google." Given that the jury has already been discharged, Smith and other lawyers interviewed for this article — most of whom did not want to be named — wondered if Alsup's concern is a citation in a brief to an article or treatise written by a paid author. "Most skilled trial lawyers are sensitive to the ethics involved" and disclose such ties or forgo the citation, Smith said, but "sometimes they just don't know" about the financial relationship. Because of Alsup's explicit reference to treatises, speculation has fallen on a couple of leading copyright scholars, William Patry and David Nimmer. Patry, who works in house at Google, has indeed been cited in the briefs — by Oracle. "For a thorough analysis of Lotus [v. Borlund], Baker [v. Seldon], the relationship between Sections 101 and 102 [of the Copyright Act], and the central role of originality under Feist [Publications v. Rural Telephone Service], Oracle recommends an article by the treatise author William Patry, currently Google's chief copyright counsel," Oracle states in its April 3 brief regarding copyright issues, signed by Morrison & Foerster partner Michael Jacobs. Oracle cites Nimmer on Copyright in the same brief. But Nimmer, a University of California law professor who is of counsel at Irell & Manella, is part of the SAP litigation team that's locked in a bitter fight with Oracle over a $1.3 billion jury verdict in a separate case. So it seems doubtful Oracle would be a client of his. Google, meanwhile, cites Stanford law professor Paul Goldstein's Goldstein on Copyright in its trial brief. But Goldstein is of counsel at Morrison & Foerster — lead counsel for Oracle.
THE INDIRECT APPROACH
The copyright briefing does include a citation that looks as if it might meet Alsup's criteria — if Oracle's "indirect payment"
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gloss is factored in. Google's April 3 copyright liability trial brief, signed by Keker & Van Nest partner Robert Van Nest, "recommends that the court consult Jonathan Band & Masanobu Katoh, Interfaces on Trial 2.0 (MIT Press 2011)." That book "provides a comprehensive overview of domestic and foreign cases addressing interoperability," states the brief. "Chapters 1 and 2 are particularly relevant to the present case." Band is a Washington, D.C., attorney and lobbyist who acknowledged in a 2006 article, "Google and Fair Use," that he represents trade associations that include Google in their membership. A search of a federal lobbying database indicates Band received $70,000 in fees over the past 18 months from NetCoalition, a trade association committed to "an open and consumer-oriented competitive environment." Google, Yahoo Inc. and Amazon Inc. are among its members. Band also represents the Computer & Communications Industry Association, whose members include both Google and Oracle, and he has written an amicus curiae brief for the Library Copyright Alliance advocating a fair use exception for Google's digitization of library books. Band and Katoh, who is executive vice president at Intellectual Ventures, don't keep their viewpoint a secret. "Although we attempt to present contentious issues in a balanced manner, the reader should be forewarned that we are hardly objective observers" in the debate over copyright and digital technology, they write in Chapter 1 of Interfaces on Trial 2.0. "Rather, we have devoted significant time and energy over the past 20 years to advocating the views of developers of interoperable software." Band worked at Morrison & Foerster for 20 years before leaving to start his own practice in 2005, so he and his work are probably familiar both to Oracle lead counsel Jacobs of MoFo and Alsup, who worked at MoFo for most of the 1980s and '90s before taking the bench. In his 41-page order rejecting Oracle's copyright infringement claims, Alsup cited briefly to Nimmer and two other academics, but not to Band's book. Band said in an email that his book was accepted for publication in the fall of 2009, "before Oracle completed its purchase of Sun [Microsystems] and more than a year before Oracle sued Google." He added that Google is not a direct client of his.
IS IT CONSTITUTIONAL?
When Alsup issued his order, the immediate reaction from some legal experts was that enforcing it could run afoul of the First Amendment. "All judges should order this," Santa Clara's Goldman tweeted, "but is it constitutional?" Because both Google and Oracle have said they'll comply, the answer may not come in this case. But Ropers' Smith said he wouldn't be surprised if Alsup's order catches on with other jurists, such as U.S. District Judge Lucy Koh of San Jose who's been wrestling with publicity issues in the Apple/Samsung jury trial over smartphone and tablet patents. If such orders do become common, a case could be made against them, said Sheppard Mullin Richter & Hampton partner James Chadwick. Chadwick, who represents media and Internet companies in First Amendment and IP litigation, points to the U.S. Supreme Court ruling Citizens United v. Federal Election Commission, which held that corporations have a constitutional right to spend money on political messaging, and Perry v. Schwarzenegger, 591 F.3d. 1147, in which the Ninth Circuit ruled that compelling proponents of the Proposition 8 ban on same-sex marriage to reveal internal campaign communications would violate their associational rights. Absent some compelling need, those rights would likely trump a judge's curiosity about how litigants might be attempting to shape public opinion, Chadwick said. On the other hand, "if a court were concerned that it or the jury had actually relied upon some treatise or article that was nominally written by a third party but that was actually written by one of the parties, I could see how that might justify disclosure," Other lawyers wondered about the order's potential sweep, pointing out that any number of law firms that represent one of the tech giants in other cases might have published a client alert or a blog item referring to developments in the case. Under a strict reading of Alsup's order, it could be argued such relationships must be disclosed. One lawyer in the case has already filed his disclosure, and his response hints at a possible narrowing of the order. Farella Braun & Martel partner John Cooper, who was appointed by Alsup to represent the court's own damages expert witness, filed a statement Aug. 8 saying that neither he, his firm nor the expert had paid anyone "to publish" anything about the case.
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Santa Clara's Goldman said that interpretation may not comply with the express wording of the order. "The order wants disclosure of anyone who has (1) gotten money from a party, and (2) covered the case," he said in an email. "The order does not ask for only the disclosure of people who have covered the case "because" they got money from a party. "I would not be surprised if Oracle and Google both made the same limiting interpretation," he added. "At that point, it's up to Judge Alsup to decide if he really meant what he said."
Copyright 2012. ALM Media Properties, LLC. All rights reserved.
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Ed Black, Contributor
Tech association CEO writing on innovation and Internet freedom
T E C H | 5/09/2012 @ 10:36AM | 1,152 views
Dangerous Copyright Claim In Oracle Case Now In Judge's Hands
Tech companies are closely watching the developments in the Oracle copyright lawsuit against Google after a jury reached a mixed decision Monday. This key intellectual property case will test whether anyone can “own” the building blocks of innovation. A central question, which may now be answered by Judge William Alsup, is whether Oracle acquired the computer language Java when it bought Sun, as well as Java’s standard rules that allow computer programs talk to each other – known as APIs. When the judge interprets the law on this issue as a next step in the case, much will be at stake for computer programmers trying to build interoperable devices, for consumers who rely on these devices and for the future of the software industry and cloud computing. Google’s Android, which depends heavily on Java APIs, now powers more than 300 million Smartphones and tablet computers. And this is not just about Android: Java is one of the most popular languages on the Internet, used by millions of users. Generally, the theory goes that programmers own their code — but not software rules, nor interfaces specifications like Java’s APIs. These common building blocks of innovation allow other engineers to build interoperable devices. In less technical contexts, we know this intuitively. A poet receives copyright protection for her sonnet written in iambic pentameter — but she cannot own the ‘rule’ of iambic pentameter, nor the rules of English grammar. Or in other words, an author can own the expression of an idea – but not the idea itself. Ian Fleming may own the copyrights to the original James Bond novels, but not the idea of a dashing international spy fighting super-villains with gadgets and glib remarks. Of course, spy novels abound because these ideas have broad appeal, and that’s a good thing.
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Last week, the European Court of Justice, facing a similar question in SAS Institute Inc. v. World Programming Ltd. reaffirmed the importance of the greater public interest. The court said that, “to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development. “ As head of a trade association that advocates for innovation and the technology industry, I couldn’t agree more. True, Java developers might have worked hard to create Java and its APIs. There are lots of hardworking Americans, however, and we don’t hand out intellectual property rights – essentially, government–granted monopolies – to everyone who works hard. These rights exist to encourage creativity – not sweat of the brow endeavors – according to a unanimous 1991 Supreme Court copyright decision that found there was nothing creative or copyrightable about a phone book. Intellectual property rights can encourage innovation when they are balanced against competing interests like interoperability and those building on existing innovation. Balance incentivizes innovation and creativity while ensuring that no one rights-holder can own the rules of the road. Improperly extending copyright protection to building blocks of innovation could cripple domestic software development and drive innovation abroad.
This article is available online at: http://www.forbes.com/sites/edblack/2012/05/09/dangerous-copyright-claim-in-oracle-casenow-in-judges-hands/
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