Oracle suggests Google may have some skeletons in its closet

Payola is a touchy subject, as DailyTech found out when it was exposed hardware makers paying off sites for good reviews.  Not everyone was happy with the full financial relationships between the media and businesses being out for all to see.

I. Following the Money

Likewise, in the case of Oracle Corp. (ORCL) versus Google Inc. (GOOG), a surprising judicial decision [PDF] will likely please some and leave others crying foul.

The infringement case is now over until the appeal starts -- and Google has essentially won.  But Judge William Alsup of the U.S. District Court for the Northern District of California (San Jose/San Francisco) surprised some by ruling that Google and Oracle must disclose payments to members of the media that occurred during the case.

He writes, "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."

Oracle HQ
Oracle and Google's court battle is mostly over, but they've been order to disclose financial relationships with the media. [Image Source: Bloomberg News]

He justified the order by writing that 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."

Some would argue that the order trends dangerously towards disrupting freedom of the press -- given that it comes from a government source.  But although unprecedented, the order is not entirely out of the blue.

Florian Mueller, an intellectual property analyst represented himself as an independent observer to multiple news publications, only to reveal that he had a "new" financial relationship with Oracle that took affect near the close of the case.  

The revelation was pretty interesting, considering that Mr. Mueller long predicted Google's situation to be very dire, when in fact Google presented a very strong case, allowing it a resounding victory.  Mr. Mueller has repeatedly denied the relationship biased his reporting of the case, claiming that his predictions of doom for Google were simply his honest opinion and a testament to courtroom unpredictability.

Florian Mueller
Florian Mueller (right) popped up on Oracle's payroll near the end of the case.
[Image Source: Malaysian International Gourmet Festival]

II. Is Google Hiding Something?

Oracle, for its part seems okay with the ruling.  It writes, "Oracle has always disclosed all of its financial relationships in this matter, and it is time for Google to do the same. We read this order to also include indirect payments to entities who, in turn, made comments on behalf of Google."

It's hard to tell if Oracle is bluffing, or if it actually believes Google may have paid bloggers off.  Needless to say, things could get interesting if Google has made such payments.

Reaction to the decision was mixed.  The Electronic Frontier Foundation -- a leading advocate of digital freedoms had no compunctions with the order.  Its intellectual property attorney Julie Samuels told Reuters, "The court has really wide discretion in granting a remedy to fix any kind of wrongdoing."

Bribe under table
Court-ordered exposure of payola may be Constitutional, if the speech in question is involved in a court case. [Image Source: i-Sight]

However, Constitutional law professor Barry McDonald of Pepperdine University told Reuters that the ruling could "improperly chill speech" although "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."

In other words, if payola is used to bias the public's perception of a court case, it is likely not unconstitutional to force it to be disclosed.  In other cases, it may be immoral but fall in a gray zone, potentially protected by free speech rights.

Sources: Judge Alsup via SBNation, Reuters, The Verge

"Nowadays you can buy a CPU cheaper than the CPU fan." -- Unnamed AMD executive

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