Google Ordered -- Again -- To Reveal Shills

Earlier this month, U.S. District Court Judge William Alsup ordered Google and Oracle to disclose whether they had paid any journalists, bloggers or other commentators who wrote about the companies' copyright and patent dispute.

Oracle revealed what everyone already knew -- that Florian Mueller, who authors the FOSS Patents blog, was on the payroll as a consultant.

Google said in court papers filed on Friday that it hasn't directly paid anyone to comment on the issues in the case. But -- as Google acknowledges in its court papers -- that doesn't answer the question whether the company had paid people who later took it upon themselves to comment on the case.

"Given the rise of self-publishing, individual blogs, and other fora for coverage and opinion, it is possible that any number of individuals or organizations, including those with indirect or attenuated financial connections with the parties, might have expressed views regarding this case," the company said in its response.  "Google employs tens of thousands of people and also hires many vendors," the company says. "It would be extraordinarily difficult and perhaps impossible for Google to identify any and all such individuals who also happened to comment upon the instant lawsuit."

Alsup isn't impressed with that response. He said in an order issued today that Google "has failed to comply" with his earlier order.

"The August 7 order was not limited to authors 'paid . . . to report or comment' or to 'quid pro quo' situations," Alsup wrote. "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."

The judge clarified the order somewhat; for instance, he said, Google need not disclose whether any bloggers who participate in AdSense opined on the case. But Alsup also told Google to "simply do your best" to provide the names of "all commenters known by Google to have received payments as consultants, contractors, vendors, or employees."

Despite issuing a new order, Alsup still doesn't make a convincing case for why the information will yield legally relevant information. Alsup says his 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.

He adds: "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?"

Maybe so, but he still hasn't spelled out exactly how public commentary can influence judges -- who, after all, are supposed to form opinions based on their understanding of precedent and legislative history, and not on what's popular in the blogosphere.

Besides, even if bloggers and companies should voluntarily disclose that type of information, courts shouldn't necessarily order it. After all, it might be unethical for bloggers to advocate a company's position without disclosing that they're being paid to do so, but it isn't illegal to do so.

When Alsup first issued the order, cyber law specialist Venkat Balasubramani questioned  the judge's rationale. "If there’s no effect on the integrity of the process -- and it’s tough to make an argument at this stage in the litigation -- why should companies and their law firms have to disclose who they paid to get their message out?" he asked.

That's a question worth repeating given Alsup's insistence that Google comply with the order and reveal the names of any potential shills.

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