SAN FRANCISCO – A judge in the patent battle between Google Inc and Oracle Corp ordered the companies to disclose the names of journalists on their payrolls, stunning the legal and media communities.
The highly unusual order was issued on Tuesday by U.S. District Judge William Alsup, who said he was concerned that Google and Oracle or their counsel had retained or paid people who may have published comment on the case.
The order, issued several months after a jury found that Google did not infringe Oracle patents, hints at the possibility of a hidden world of for-pay press coverage and injects uncertainty into the widely followed case.
Alsup issued a one-page order but did not go into full details of the court’s concerns.
“I haven’t seen anything quite like this before,” said Eric Goldman, a professor of Internet law at Santa Clara University School of Law. “I think the judge is in uncharted territory with this order.”
Goldman said two potential reasons for the order would be if there were evidence that the jury had been swayed by extensive press coverage of the case, or if the jury had relied on evidence not properly labelled as unbiased, such as a for-pay news article offered as an exhibit in the trial.
But with the trial mostly finished and few details in the order, Goldman said it was unclear why the issue was coming up now.
“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 the case,” Alsup wrote in order.
He said the information “would be of use on appeal” and could “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.”
The companies must submit the information by noon Aug. 17.
Oracle sued Google in federal court, claiming the search engine giant’s Android mobile platform violated its patents and copyright to Java, seeking roughly $1 billion on its copyright claims.
The jury ruled in Google’s favour and the judge decided Oracle could not claim copyright protection on most of the Java material that Oracle took to trial.
Oracle has said it will appeal.
The trial, which featured testimony from high-profile technology executives including Oracle Chief Executive Larry Ellison and Google CEO Larry Page, has attracted heavy media coverage from the mainstream press and technology-focused blogs.
One of the more well-known bloggers on intellectual property matters and on the Oracle-Google case, Florian Mueller, revealed three days into the trial that Oracle had recently become a consulting client of his. People who followed the case said they were not aware of any other similar examples.
An Oracle spokeswoman said in a statement that the company has “always disclosed all of its financial relationships in this matter, and it is time for Google do to the same. We read this order to also include indirect payments to entities who, in turn, made comments on behalf of Google.”
Google said it would comply with the order.
What impact the order could have on the case remains unclear, legal experts said.
Barry McDonald, a constitutional law professor at Pepperdine Unive0rsity, said an argument could be made that forcing the disclosure of commentators would raise First Amendment issues because it would “improperly chill speech.” But he added, “I doubt a court would be very receptive to that claim if the speech at issue was essentially being bought by a party in some sort of misleading way.”
Some observers said the order was written broadly, so that it could be interpreted to include anyone who commented on the case and who is affiliated with an organization that has received money from one of the companies, such as someone at a university or non-profit organization.
Goldman, who blogged about the case, said his name would likely appear on the list, since his website features ads distributed by Google’s online advertising network.
“The court has really wide discretion in granting a remedy to fix any kind of wrongdoing,” said Julie Samuels, an intellectual property attorney with the Electronic Frontier Foundation.
Samuels said the judge could order a retrial, but said that would be a highly extreme and unlikely scenario.
The case in U.S. District Court, Northern District of California is Oracle America, Inc v. Google Inc, 10-3561.