Judge Alsup Orders Google and Oracle to Reveal Relationships with Bloggers, Journalists and Academics

Near entry of judgment, Judge Alsup orderd Oracle and Google in a major IP tussle to reveal ties to bloggers, journalists, and academics — including apparently at least one person who blogged for a long while without revealing that he was a paid consultant to one of the parties. The order is here:  "each side and its counsel shall file a statement herein clear identifying 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"

The judge ordered both parties to reveal any relationship with not just bloggers, but journalists and academics with whom either had a financial relationship. A longer article is here.

My first reaction is that it's a good idea.  I draw the analogy to "sponsored" scientific research. I know some say it would describe disclosure of blogs with "adsense" but that seems wrong to me, given the "other than normal subscription fees" language.  Thoughts?

[Full disclosure: I gave a cle at Google once!  Cool place to visit.]




About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

7 thoughts on “Judge Alsup Orders Google and Oracle to Reveal Relationships with Bloggers, Journalists and Academics

  1. 7

    I don’t think it is meant as a ban against commenting at all, but more so a “let’s make sure that everything is on the up and up.”

    I applaud the move as a step towards clarity that in no way impedes any First Amendment right. Just as you cannot yell “Fire” in a crowded theater, legal discussions when policy matters and money is involved is a volatile mix that needs to be controlled (controlled is not the same as banned).

    I make these comments with no affiliation to, or payment from, any entity.

  2. 6

    Interesting thoughts, all.

    George, putting to the side the comments about a specific judge, which I don’t know enough to even begin to address, I think that we accept a range of “views” about patents, legal interpretation, etc. That range helps get us we believe to the right result, eventually. Juries vary too. (I was an expert in the Monsanto v. DuPont case, and it was obviously no accident that Monsanto filed suit in its home town St. Louis, just as it was no accident that when I was representing Exxon it sued defendants in Houston when it could.) We fight to pull a particular case to one venue or another not, I would propose, because of ‘improper’ bias but ‘proper’ bias. The marginal cases tell us the boundaries.

    I do agree big time with your point that judicial integrity has to be protected. I worry very much about that issue now, and honestly had not even thought it was an issue until the last few years other than in extreme cases. Now, those cases seem to be coming monthly, not annually.

  3. 5

    If you really want the elephant on the table as it relates to this….a FedCir judge elevated from an Assistant Prof (not tenured, right?) to a lifetime appointment on the FedCir after a few articles that were friendly toward one industry is interesting (not accusing judge or the industry of anything here – but who lobbied and how was he selected as a non-member of the patent bar?).

    Clarence Thomas taking money for projects through his wife and a foundation for causes of interest is also interesting, and widely reported. Again, no accusations, just a real question about recusal. When?

    Myriad Federal judges who are openly politically active.

    Major fights about venue – why have this fight if judges and juries are the same everywhere?

    None of these have substance, but the appearance matters and the public is now not only losing faith in attorneys, but also judges and courts (I think the SCOTUS is at it lowest approval in a long time, if not ever).

    Shouldnt we worry about the big things? Shouldnt we discuss the big things?
    Can we?
    Does the appearance of ethical conflict to the public matter?

  4. 4

    I think anyone has the right of free speech, but one does not have the right to commit fraud on the PTO or the court, or to lie about a competitor’s products for commercial advantage.

    I think “commented on any issue in the case” may be a bit overbroad unless there was an order by the court not the comment on any issue in the case and the question is whether a party violated that order. Otherwise, I believe everyone may comment at any time about a court case, including the parties.

  5. 3

    I think disclosure is the right practice, and hopefully folks will practice that, but until judges and other court officials disclose (possibly?) clear and (possbily?) obvious bias it seems a bit of a stretch to worry about third parties to the case.

    I would prefer the focus be on judicial ethics, and not anciallary matters, as the public is focussed on “activist” judges and their non-recusal and sometimes what looks like bias in cases should be the real concern.

  6. 2

    Suppose X is a big rock start in patent law, and suppose he writes posts about how the district court incorrectly admitted key piece of evidence exhibit 1. That could, conceivably, be read by law clerk at the CAFC, who is influenced by the reasoning, not knowing that X was being paid $800/hr to blog about the case. That, I’m guessing, is one concern. I know that my “regular” ethics blog gets cited in articles (no court cases I’m aware of), and my articles get cited in court cases, and in either instance, if I’d been paid to write something, I surely would disclose it. Does that make sense? I think that’s the rationale.

  7. 1

    At some point this is marketing. Why would marketing ever be relevant to the facts of a case? Aren’t cases decided on facts?

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