Tech companies in lawsuit must identify paid journalists and bloggers, federal court rules

Amanda Simmons | Content Regulation | News | August 15, 2012

Media advocates are concerned about a federal court order that compels two technology companies involved in a drawn-out patent infringement lawsuit to disclose the names of writers they paid to comment about the case.

Google and Oracle, a computer technology corporation, have until Friday to identify any journalists or bloggers they paid for writing about the case, ruled Judge William Alsup of the U.S. District Court in San Francisco.

Oracle sued Google for patent and copyright infringing certain software for its Android smartphones but jurors could not reach a conclusive decision in May, making "proceedings in the matter ... almost over," according to Alsup.

But anticipating an appeal, the judge explained that he wanted “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,” according to Alsup’s order issued last week. “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.”

Despite its intentions to expose any undue influence on the proceedings, the court’s directive in Oracle v. Google might be more sweeping than intended, suggested media lawyers and writers following the case.

Eric Goldman, a law professor and director of the High Tech Law Institute at Santa Clara University, wrote on his personal website that based on the order's broad parameters, even he could technically be considered a paid commentator on the case. He isn’t paid directly to write about the lawsuit but like countless other independent online publishers, Goldman uses Google AdSense, a popular program that monetizes Web content with advertisements developed by the Internet company.

“I don't see how the parties can properly comply with the order in such a short time-frame. They must have thousands or even tens of thousands of vendors,” wrote Goldman. “Unfortunately, if the parties properly comply with the order, the lists will be riddled with ‘false positives,’ i.e., people who met the literal criteria (cash from litigant + coverage of case) but didn't meet the spirit of the order (covered case BECAUSE OF cash from litigant).”

Journalist Emily Bell also described the ethical dilemmas the broad court order poses in an article posted to The Guardian’s website, a U.K.-based newspaper, earlier this week.

“The need for transparency about the press's ‘soft power’ is not a new issue, and neither is the tension between public commentary and private remuneration,” she wrote. “The only real answer is increased transparency about the sources of information, and about individual and corporate payments; and for the sake of all concerned it would be better for this to come from within organisations, rather than from a court order.”

So far, only one online commentator has come forward as a contributor paid by one of the parties. Florian Müller, a prominent intellectual property blogger, revealed in April that he was hired as a consultant by Oracle.

Representatives for Google and Oracle could not be reached for comment. Both parties are expected to comply with the court order because no appeals were filed.

On his website, Goldman advocated for more transparency from online contributors, albeit with caution.

“Instinctively, I applaud Judge Alsup's efforts because the phenomenon of shill public relations is out-of-control,” he wrote. “However, if nothing has yet undermined the integrity of the judicial process in the Oracle-Google case, then I think he has overreached -- especially at this late date in the proceedings.”