One interesting sidenote to the recent litigation between Oracle and Google has been the order by presiding judge William Alsup that both sides disclose whether they paid anyone who wrote publicly about the case. The deadline for this disclosure was last Friday, but as with most things legal, the issue is still dragging on.
Before going into the detail of why that is, however, it is worth examining how public commentary shapes the important issues around technology these days. Few people would represent print journalism as the most ethically directed profession out there, but there at least public guidelines and accepted professional standards do exist. Naturally the lines blur a little. Journalists want early access to new technology and it is an open secret that publicists at software and hardware companies will use this fact to apply pressure for positive commentary. All in all though traditional journalism is constrained from out-and-out paid partisanship by national laws and professional standards bodies.
Unfortunately, though, traditional journalism is also constrained from digging too deeply into the details of complex technical or legal issues. It must appeal to a broad readership in order to pay for itself and so will tend to focus on digesting the complexity into generalist and sometimes misleading headlines. This was particularly apparent in the Oracle v Google case itself, where every story in the later stages was inaccurately reported in the more mainstream tech press as ‘the end’.
For those who want more detail, there exist the specialist blogs. Unconstrained by word count limits or the need to provide general interest, blogs like Groklaw and FOSSPatents provide endless analysis to the sleepless obsessives. One might think that this would lead to their being largely irrelevant to the mainstream, but this does not seem to be the case. For example during the SCO v IBM case over copyright infringement in Linux, Groklaw became so influential that SCO asked the court to order IBM to disclose if it was bankrolling the site. IBM denied that it did (pdf link):
…IBM states that it does not finance, fund, sponsor or promote Groklaw; IBM does not have any agreements or arrangements with Groklaw or with Pamela Jones [Groklaw's primary author], and IBM does not necessarily agree or disagree with the content of any of the material published on Groklaw.
SCO’s problem was that no mainstream tech journalists had the time or inclination to plough through all the court filings, and so Groklaw became effectively a primary source. Unfortunately for SCO, Groklaw was severely opposed to them, and tended to engage in exasperated invective as a garnish to the reporting of proceedings. While few people were actually reading every post, that flavour of opposition to SCO seemed to be finding its way into much mainstream coverage, and – SCO argued – negatively affecting its ability to argue its case in court. Now whether one feels that SCO had a point or not here will depend on how one views the job that Groklaw did and does. One person’s impartial news source is another’s censoring shill.
Another specialist blog is written by Florian Mueller, intellectual property consultant and former campaigner against software patents. His FOSSPatents blog is updated frequently with detailed accounts from the front-lines of the smartphone wars, where Apple, Google (sometimes via their new acquisition Motorola Mobility), Samsung, HTC, Microsoft, Nokia and Oracle are all pursuing aggressive intellectual property litigation strategies to supplement their primary businesses of actually making and selling things. Mueller has become something of a primary source on these horribly complex litigations, and august news sources like the BBC quote his opinions on them. During the Oracle v Google litigation, Mueller routinely attacked Google and predicted that Oracle’s arguments would triumph. In the event, Oracle was finally forced to settle for no damages whatsoever. Mueller had already announced, before Alsup’s order, that his day-job as a consultant had resulted in his being paid by Oracle in the recent past. However Mueller argued that he had never received direction from Oracle on what to write about or write, and that his blog represented his honest, unpurchased opinions.
When Oracle and Google responded to the order last Friday, Mueller’s name was again disclosed by Oracle as a commentator whom they had paid. Google on the other hand stated that they had paid no-one to write about the case directly, but had paid almost everyone on the web in one way or another at one time or another. This latter response does not satisfy the judge, however:
The August 7 order was not limited to authors “paid . . . to report or comment” or to “quid pro quo” situations. 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 [Mueller] as a consultant. Even though the payment was for consulting work, the payment might have influenced the blogger’s reports on issues in the civil action. 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?
It is easy to understand the judge’s concern here; independence from influence is an important aim for journalism, particularly where it has the power that specialist blogs have acquired in recent years. There is an issue, however, beyond the adminstrative difficulties Google will have complying with the new order (by this Friday). The thing that makes specialist blogs so valuable is ironically also the thing that makes them hard to fund. They have a wealth of detail but relatively few readers. So it is hard to fault Florian Mueller for accepting consultancy work to support himself, even though by doing so he has damaged the public’s view of his impartiality. Even where there is no disclosed or undisclosed corporate sponsor, the kind of obsessive commitment required to create such detailed analysis does not tend to come with a detached, even-handed view of the material; and if a specialist blog has a point to prove, who has the time or resources to expose its tendentiousness?
Alsup’s order has brought to light a long-standing issue with tech-related citizen journalism and its increasing power to affect multi-billion dollar ventures and litigation. No-one expects political blogs to be impartial because politics is something like a war; you pick a side and attack. Increasingly however, with intellectual property litigation increasing every year, technology is also war, and we may need to adjust our expectations of bloggers in the sphere as a result. Alsup’s order presumes that the public expects independence in its tech journalism, and it may be that – as with politics – the financial stakes are now simply too high for that to be a reasonable expectation.