Tuesday, September 4, 2012

Pulling Back The Curtain, Part II

Pulling Back The Curtain, Part I, can be found here.

In response to Judge Alsup's order, Google filed its supplemental disclosure on August 24.  It reiterated its previous statements and asserted that it did not pay any authors, journalists, commentators, or bloggers to report or comment on its trial against Oracle. However, it did disclose the names of twelve individuals and six organizations who commented on the case and had in the past received money from Google.

Of the twelve individuals on Google's list, the one who has drawn the most attention is Mark Lemley, a well-known professor at Stanford Law School.  Google revealed that Professor Lemley "serves as outside counsel" on "unrelated cases." One commenter was skeptical of the line Google was attempting to draw: "That's a pretty fine distinction: regardless of whether Google retained Lemley for the Oracle case or not, he's still Google's lawyer, and he's almost always quoted as a Stanford professor, not 'Google outside counsel.' "  Another noted that his research found that:
"Lemley was ... cited and quoted in at least three news items or articles related to the Google-Oracle litigation. ... his relationship to Google was not revealed in any of those stories.  As I quickly read those articles I found no explicit pro-Google bias. While it’s a bit of a gray area, as an attorney Lemley probably should have disclosed and explained his relationship to Google. He probably would still have been quoted. However his retention by Google isn’t mentioned."  
However, more than one commenter felt that the journalists who quoted Professor Lemley share the blame for not disclosing his relationship to Google:
"Professor Lemley is known as a controversial figure -- a legal professor whose profession is not patent law, but who has published journal papers attacking he current mire of patent law. And his page on [the] Durie Tungri [website] does mention he represented Google. So the SF Chronicle and Mercury News (Silicon Valley) should arguably have known what they were getting into when they Google searched (irony) his name."
In his August 20 order requiring Google to supplement its initial submission, Judge Alsup stated why he was requiring Oracle and Google to make the disclosure:
"Just as a treatise on the law may influence the courts, public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways.  If a treatise author or blogger is paid by a litigant, should not that relationship be known?"
In the context of high stakes litigation, public relations is used to influence public opinion, not the judge or the judge's staff. Nevertheless, Judge Alsup has put the litigants that appear before him on notice that they may be required to reveal whether any authors, journalists, commenters, or bloggers who report or comment on his cases have received money from the party or its counsel.  It will be interesting to see whether other judges follow his lead.


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