"Come to me when thou hast seen the elephants dance..." -- The Jungle Book by Rudyard Kipling
The elephants are dancing in the Northern District of California, and the presiding judge has had about enough of it. In an interesting twist to the Oracle v. Google case, Judge William Alsup has asked nicely for a list of all of those paid by the parties to comment on the case. Simple enough, right?
Both companies responded but no one will be surprised to know that Google's "disclosure" fell a little short of what the Court had in mind. Since it's unlikely that the Court would permit Google's usual disclosure practices -- blatant refusal, submission under seal, protective order, nondisclosure agreement, redacted to pieces, or simply blank or nearly blank pages -- Google got the next best thing without the usual stamping of little feet in Italian shoes.
The Court slightly narrowed its initial request. As Judge Alsup's told Google in his Order to Supplement on August 20:
Google suggests that it has paid so many commentators it is impossible to list them all. Please simply do your best but the impossible is not required. Oracle managed to do it.
I think it is a very reasonable request given Google's own (strange) suggestion to the court that its public messaging efforts are worthy of Mr. Bernays himself.
In fact, this kind of thing came up in a recent Fortune magazine article about two other Northern District cases, the Google Buzz and the Facebook Sponsored Stories class action settlements. Fortune's reporting on the potential influence peddling aspects of these other class action settlements highlights Judge Alsup's concerns about the Oracle case. (See, Roger Parloff, "Google and Facebook's New Tactic in the Tech Wars").
The Google Buzz settlement involved millions in payments by Google to a handful of influential academic and public policy groups whose names should start to sound familiar in public relations circles in Silicon Valley. The Buzz award was made under two separate orders from the Court (Judge Ware, also in the Northern District). While the first order established significant payouts by Google, the second order expanded the list of awards even further.
Fortune called attention to these contributions to familiar names that would likely be included in what Oracle alleged was Google's extensive international network of "influencers" that further its "intellectual property agenda" (also known as the "copyfight"):
[A]t least half of the [award] recipients in [the Google Buzz and Facebook class action] cases would very likely be getting at least some donations from Google or Facebook this year, whether or not any suit had ever been lodged against them. For instance, the Center for Democracy and Technology (CDT), which got $500,000 from the Google Buzz cy pres award in 2011, received $340,000 in voluntary contributions from Google the year before. It's now slated to receive $1 million from the proposed Facebook award, though Facebook has been listed as one of CDT's leading e-commerce benefactors since at least 2009. Similarly, the Center for Internet and Society at Stanford (CIS), which received $500,000 from the Google Buzz award, had collected $400,000 in voluntary contributions from Google the year before (which amounted to 51 percent of CIS's total revenue that year). This year CIS will collect $600,000 from Facebook's Sponsored Stories settlement, if approved. [Not to mention the $2 million that CIS got from Google during Professor Lessig's tenure at CIS.]
So it's no wonder that Judge Alsup is concerned about Google and Oracle paying for commentary about his case. Fortune also noted the following curious passage from the amended Google Buzz award order:
[The Electronic Privacy Information Center] and seven other privacy-focused nonprofits objected to their exclusion from the [Court's initial award order] protesting that the plaintiffs lawyers and Google had, in effect, arranged to give the majority of those funds "to organizations that are currently paid by Google to lobby for or to consult for the company." (The EFF, CDT, and CIS all reject that characterization of their relationship to Google. They aver, rather, their complete independence, and stress that any corporate donations they accept are "unrestricted" in nature -- meaning that they come with no strings attached. [However, none of these groups objected to being characterized as lobbyists for Google at the time they got the Google money, or ever since to my knowledge.]) [My emphasis.]
[The Google Buzz judge] granted EPIC's request, carving out a $500,000 tranche for it. (At the same time he spontaneously -- without prompting from anyone -- sliced off another $500,000 piece for an ethics center at Santa Clara University[.])
Santa Clara University law professor Eric Goldman, a distinguished pro-tech commentator, has challenged Judge Alsup's order on interesting First Amendment free speech grounds. One can easily understand why that objection was made.
It all gets more complex when you read the Google "transparency" report that Google cited in its response to Judge Alsup's order and when you realize that the only mention of Google money going to the EFF in the transparency report is in the form of a Google Fellowship -- not the $500,000 award in the Google Buzz case.
As Fortune observed:
If the Electronic Frontier Foundation, the nation's preeminent digital rights nonprofit, had disclosed last year that it received a cool $1 million gift from Google -- about 17 percent of its total revenue -- some eyebrows might have been raised. The group typically describes itself as "member-supported" and, like most nonprofits, it treasures its above-the-commercial-fray, public-interest-group aura and reputation for independence. In fact, Google did transfer $1 million to the EFF last year, but the money did not have to be, and wasn't, reported as a corporate donation.
The EFF has, of course, extensively covered the Oracle case on its blog including a Wired magazine article by EFF staffers and cross-links to other blogs (e.g., "Oracle/Google Case Shows Just How Totally Pointless It Is To Have Patents On Software").
So the question that Fortune raises is a good one: Could Google pay millions to organizations that promote its agenda but never have to reveal those payments to satisfy their disclosure obligations under Judge Alsup's order? Not that they're looking for advice from me, but if I were going to get cute, I wouldn't pick a federal judge to get cute with.
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