Government and Policy 203
Google list of pundits in Oracle patent case points to need for more transparency

A few weeks back, I wrote a story looking at the various third parties that Google and Microsoft had paid to try to influence policy in Washington, D.C. This is fairly standard practice for large corporations.

But what’s irksome is that unlike campaign donations or lobbying expenditures, there are no rules requiring disclosure when someone pays an academic, a trade group, or a lawyer to help make their case to policy makers and the public.

My main story is here. And a longer list of groups with ties to either company is here.

In the wake of this, I was surprised when the judge in the Oracle-Google patent case suddenly demanded that both companies disclose the list of third parties they had paid to act as commentators. Google initially claimed there was no one, but the judge said they hadn’t followed his order and to try again.

On Friday, they released a longer list of people with paid ties, some of which were included in my list. But several others who were not.

Some of the disclosures seem, well, absurdly minor. Such as:

Tim Bray is currently a Google employee, and was a Google employee during the
pendency of the lawsuit. On August 12, 2010, Mr. Bray wrote a post on his personal Twitter account in response to Oracle’s filing of the lawsuit.

 

Some, however, show how perspectives can be distorted at the margins. For instance, Google notes that: “Professor Mark Lemley serves as outside counsel to Google in unrelated cases, as does the law firm at which he is a partner: Durie Tangri.”

Fine, but Google says that Lemley was mentioned in this San Francisco Chronicle story:

“If only two of Oracle’s patents hold up on review, that means the patent office got it right less than 30 percent of the time, an average we have every reason to believe is representative of the entire sector’s patents. In fact, software patent holders lose nearly 90 percent of the time in litigation, Stanford law Professor Mark Lemley found in a research paper published last year.”

Notice there’s no disclosure there of his relationship with Google. That could mislead the reader into thinking that Lemley is offering a purely independent view, though, I’m sure Lemley would insist that Google’s money doesn’t affect his research.

Lemley was also interviewed for a Mercury News story about the case:

“Stanford law professor Mark Lemley, however, said it seems unlikely that the judge would rule against the “fair use” defense, because he would have to find that no reasonable jury would accept fair use. And in this case, the jury’s impasse means at least some of the jury apparently did accept that defense.”

UPDATED: After I posted this Friday, Lemley contact Brandon Bailey, the Mercury News reporter who wrote the above story. Lemley, a recognized expert on patent law, has previously disclosed that his law firm has done other work for Google, which was reported by the Mercury News last year.

“I don’t think it’s been a secret to anyone,” he said in an email Friday, adding that, “I have never taken – and never would take – money from any party, including Google, to influence my academic views.”

END UPDATE

Interestingly, Google also tries to debunk the notion that it paid certain people. That includes Ed Black, the colorful head of the Computer and Communications Industry Association. The CCIA has a history of supporting anti-trust actions against big tech companies. Some folks had been surprised that Black has thus far been writing against the need for such action against Google, leading some to suspect he was under Google’s influence. Black has denied that’s the case, and so does Google in its filing.

It’s still unclear to me, and many others, why the judge suddenly wanted these disclosures. There appears to be nothing illegal about them. And it’s unclear what role any of these people would play in shaping his ruling.

But this does, again, raise the larger issue for me: We need more transparency on these issues. There currently doesn’t appear to any movement under way in Washington to push for more disclosures. But this has become an important and lucrative method for these companies to wield soft influence.

Throw in fake grassroots lobbying groups, and other such things, and it’s everywhere you turn.

People and policy makers deserve to know who is footing the bill for the feedback and opinions they are reading. It’s past time to require companies to officially disclose these ties.

If the judge’s ruling accomplishes nothing more than shining a brighter light on this practice and get people talking about it, then he’s done us all a big public service.

Goog Supp Disclosure