Judge not satisfied with Google's disclosures over commenter pay

The original order wasn't just for 'quid pro quo' situations, Judge William Alsup says

The judge who oversaw Oracle's lawsuit against Google said Monday that the search giant "has failed to comply" with an Aug. 7 order to provide the names of parties whose commentary on the suit may have been influenced by money.

Last week, Google said it had not directly paid anyone to comment on the case, which centered on alleged Java patent and copyright violations in the Android mobile OS.

However, given factors such as the prevalence of online publishing tools, "any number" of individuals or institutions with "indirect or attenuated" financial ties to Google may have written about the case, according to the company.

Google named a number of categories into which such parties could fall, such as company contractors, participants in its advertising programs and individuals who work for schools that have received donations from Google. It would be "extraordinarily difficult and perhaps impossible" for Google to provide the court with full lists of these commenters, the company said.

The wording of Judge William Alsup's Aug. 7 order seemed to imply he was most interested in direct pay-for-play activities on the part of Oracle and Google: "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."

But Alsup actually had a broader scope of scenarios in mind, according to his order filed Monday in U.S. District Court for the Northern District of California.

"The August 7 order was not limited to authors 'paid . . . to report or comment' or to 'quid pro quo' situations," Alsup wrote in an order filed Monday in U.S. District Court for the Northern District of California. "Rather, the order was designed to bring to light authors whose statements about the issues in the case might have been influenced by the receipt of money from Google or Oracle."

"For example, Oracle has disclosed that it retained a blogger as a consultant," Alsup added, referring to Florian Mueller , a frequent commenter on patent and open-source software issues. "Even though the payment was for consulting work, the payment might have influenced the blogger's reports on issues in the civil action."

Alsup wants Google to provide further information by Friday, according to his order on Monday. Oracle must also "supplement its list if this order clarifies any issue," Alsup added.

"Google suggests that it has paid so many commenters that it will be impossible to list them all," he wrote. "Please simply do your best but the impossible is not required. Oracle managed to do it. ... Google need only disclose those commenters that can be identified after a reasonably diligent search."

"Google can do it too by listing all commenters known by Google to have received payments as consultants, contractors, vendors, or employees," Alsup added. As for organizations receiving money, they need not be listed unless one of its employees was a commenter. Gifts to universities can be ignored."

Also, Google does not need to consider advertising revenue received by commenters as payment, Alsup said.

In its own response to Alsup's initial order, Oracle alleged that Google maintains an extensive network of "influencers," among them attorneys, lobbyists and bloggers, that help further its "intellectual property agenda."

Google brought this network to bear on the case in order to "help shape public perceptions concerning the positions it was advocating throughout this trial," Oracle alleged. Oracle also named two "prominent" individuals, Computer and Communications Industry Association CEO Ed Black and author Jonathan Band, saying they have ties to Google and wrote about topics germane to the case.

Oracle sued Google in August 2010. The case concluded earlier this year, with Google largely exonerated, but Oracle is planning to appeal.

Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris' email address is Chris_Kanaracus@idg.com

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