
Google’s lawyers are asking to find Oracle’s lawyers in contempt of court - ivank
http://motherboard.vice.com/read/google-is-trying-to-get-oracle-in-trouble-for-a-1-billion-open-secret
======
grellas
It is _huge_ that a lawyer would disclose in a public setting such important
confidential numbers. I even have trouble seeing how something like that could
be "accidental". It is basically a force of habit among experienced litigators
to think and to say, in any number of contexts, "I know this may be relevant
but I can't discuss it because it is the subject of a protective order" or "I
know the attorneys know this information but it was disclosed under the
protective order as being marked for 'attorneys' eyes only'". In all my years
of litigating, I don't believe I have ever heard a casual slip on such
information, even in otherwise private contexts (e.g., attorneys are
discussing with their own client what an adverse party disclosed and are very
careful not to disclose something marked for "attorneys' eyes only").
Certainly willful disclosures of this type can even get you disbarred.

But the significance of this breach is not the only thing that caught my eye.

These litigants have been entrenched in scorched-earth litigation for years
now in which the working M.O. for both sides is to _concede nothing_ and make
everything the subject of endless dispute. Big firm litigators will often do
this. It is a great way to rack up bills. Clients in these contexts do not
oppose it and very often demand it. And so a lot of wasteful lawyering happens
just because everyone understands that this is an all-out war.

To me, then, it seems that the big problem here (in addition to the improper
disclosures of highly important confidential information in a public court
hearing) was the _resistance_ by the lawyers who did this to simply
acknowledging that a big problem existed that required them to _stipulate_ to
getting the transcript sealed immediately. Had they done so, it seems the
information would never have made the headlines. Instead (and I am sure
because it had become the pattern in the case), they could not reach this
simple agreement with the other lawyers to deal with the problem but had to
find grounds to resist and fight over it.

I know that we as outside observers have limited information upon which to
make an assessment here and so the only thing we can truly say from our
perspective is "who knows". Yet, if the surface facts reflect the reality,
then it is scarcely believable that the lawyers could have so lost perspective
as to take this issue to the mat, resulting in such damage to a party.
Assuming the facts are as they appear on the surface, this would be very
serious misconduct and I can see why Judge Alsup is really mad that it
happened.

~~~
Natsu
Suppose, for a moment, the judge believes that there's at least an open
question as to whether the revelations were willful. Can the later conduct, in
which they acted in such a way as to double down on the mistake, be used to
support a finding that the conduct was willful?

~~~
grellas
Yes, the entire pattern of behavior is relevant, though I would note that
judges are highly reluctant to ascribe bad motives to distinguished litigators
(and the lawyer involved here fits in that category) and so I would be
surprised if the judge took a super-harsh approach in spite of being upset
over this. But, again, who knows?

~~~
Natsu
Taking all the facts given us at face value for now, what is the range of
punishments the court might impose here, along with what your gut feeling says
the most likely outcome(s) are?

Based on the quotes, one thing the court appeared to contemplate was forcing
them to inform all future courts of their conduct in this case.

~~~
grellas
Hard to say here. Federal courts have _very broad_ discretion to impose
sanctions for violations of their orders, including those authorized by the
Federal Rules of Civil Procedure and also those based on their inherent
powers. We are, after all, dealing with _contempt_ of a court order, which is
very serious. I would say it is likely here that the court would refer this to
the State Bar with a request that it be investigated and this would pose quite
a risk for one or more of the attorneys that ethical sanctions would be
imposed (these can range from private to public censure to suspension to
disbarment, though here I don't think the more extreme remedies would apply
unless evidence surfaced to show that this was somehow deliberate). A standing
order to the firm or to one or more of the attorneys that they would have to
do a formal filing in future cases (say, for a period of x years) disclosing
this misconduct is also something I could envision here. This would cause
large reputational harm to the lawyer(s) involved and would be fitting,
doable, and probably appropriate for such a serious violation. Monetary
awards/fines are also possible, though I cannot imagine an award that could
reflect the actual damage caused to Google - such awards are usually limited
to attorneys' fees and costs incurred in obtaining the contempt order.
Discovery-related sanctions are also often imposed in live cases (e.g.,
limiting the use of certain evidence or treating some fact as admitted that is
adverse to the party causing the violation or some such thing), but I don't
think would apply here. Jailing of an offending party is also used in civil
contempt but only as needed to compel compliance with an order (e.g., you will
stew in jail until you disclose your non-protected sources for the facts in
this story as you have been previously ordered to do) - again, these wouldn't
apply here. So, I think the main sanctions would likely involve those hitting
the reputations of the attorneys, either in future court proceedings or
through State Bar sanctions. These, by the way, are not trivial. No matter how
good a lawyer or a firm, being seen as tarnished can cost you clients, job
opportunities, etc., not to mention public humiliation and embarrassment (no
small thing for prominent lawyers).

~~~
sandworm101
My civpro prof was a collector of Rule11 stories. He liked judges who observed
that the rule's "may" language doesn't forbid inventive sanctions. This isn't
a rule11 situation, but if I were the judge, in exchange for not reporting the
conduct to the local bar, I'd make them all go without cellphones while in the
courthouse .. for a year. There are too many billions being thrown around in
this litigation for any fine to matter.

------
mmastrac
While this is a good story, the headline misses by far the point that the body
makes - the only reason this is an open secret is because an Oracle lawyer
revealed it in public.

A better title might be:

"Google is trying to get Oracle in trouble for revealing confidential figures"

~~~
notyourwork
That article was simply hard to read. I kept asking if this was a story or a
news article.

~~~
juliand
Especially with that animated gif above the fold. I had to scroll to a point
where the animation was completely hidden to be able to read comfortably.

------
nkurz
As background, this opinion piece by the lawyer in question may be useful in
understanding the mindset of the players. Hurst argues that because API's are
not copyrightable, the GPL is dead and Oracle's valiant attempts to defend
free software have been foiled:

 _The Death of "Free" Software . . . or How Google Killed GPL_ _by Annette
Hurst (@divaesq)_

 _The developer community may be celebrating today what it perceives as a
victory in Oracle v. Google. Google won a verdict that an unauthorized,
commercial, competitive, harmful use of software in billions of products is
fair use. No copyright expert would have ever predicted such a use would be
considered fair. Before celebrating, developers should take a closer look. Not
only will creators everywhere suffer from this decision if it remains intact,
but the free software movement itself now faces substantial jeopardy._

 _..._

[https://www.linkedin.com/pulse/death-free-software-how-
googl...](https://www.linkedin.com/pulse/death-free-software-how-google-
killed-gpl-annette-hurst)

This wasn't an accidental "slip" by a poorly trained intern. This was a
conscious disclosure made by one of Oracle's lead attorneys. She is one of the
top IP lawyers in the nation: [https://www.orrick.com/People/2/6/2/Annette-
Hurst](https://www.orrick.com/People/2/6/2/Annette-Hurst). It is in keeping
with the "scorched earth" strategy that has been followed for this case. She
knew what she was doing, and she (and her firm) should pay the consequences.
If there are no consequences, it will legitimize and reward this strategy.

~~~
lucio
First comment in that article: (from Michael Tiemann, VP Open Source Affairs,
Red Hat)

As a person who started the world's first company based on supporting,
developing, and maintaining GPL-licensed software (Cygnus Support, 1989), and
now a VP at Red Hat, I respectfully submit that you don't really understand
the GPL, APIs, nor the fundamental premise of Open Source Software (both as a
legal construct and as a short-hand for the business models that it enables).
To paraphrase Wolfgang Pauli, "Your arguments are not right. They are not even
wrong."

------
nikic
This article reads very weirdly to me. Are they arguing that disclosing
confidential information, and subsequently opposing steps to contain the
disclosed information, is perfectly fine because ... it can be found on the
internet, precisely _because_ of this disclosure? This makes absolutely no
sense to me.

~~~
arcticfox
I think the author of the article didn't realize that all of those references
were generated from the very subject of the article.

Very strange, I agree. It's an open secret _now_ but it wasn't when the events
happened, which is why there's a fight.

~~~
cortesoft
I think they did realize it, because they mention in the article itself that
was the source of the information.... I think it is more likely the headline
creator didn't realize it.

~~~
arcticfox
On further review, I think the confusing nature of the article stems for the
author not being careful to separate the original trial from the current
contempt of court proceedings.

It's indeed a little silly / funny, although logical, that Google insists
Oracle continues to redact things when it's now common knowledge. But the
overall proceedings are certainly _not_ silly or frivolous.

------
segmondy
Oracle should pay, they knew exactly what they were doing. If it was them,
they would be suing too. Live by the sword die by the sword.

~~~
helthanatos
Oracle would probably sue if Google said something about buying Sun...

>“She just blurted out the two numbers that mattered. She just blurted it
out,” said Judge Alsup. “If she had had the recipe for Coca-Cola she could
have blurted it out in this court right now.” Knowing revenue isn't exactly
the same as knowing a formula. It's odd that Google cares so much.

~~~
sjellis
I don't think that they care about that so much as making the point that
nobody else should think about copying Oracle's tactics. The attorneys for
Oracle were remarkably unscrupulous in the way that they conducted their case,
IMO, and this is part of the payback, from the judge as well as Google's
lawyers.

------
balabaster
Having read this article it reminds me somewhat of tactics in movies where
lawyers deliberately ask an inflammatory question in front of a jury purely
for the purpose of planting a seed, and before anyone can yell objection they
immediately retract knowing that the damage has been done. The judge may
strike it from the record, the judge may tell the jury to disregard it, but
you can't unthink or unhear something that's been said. The bell has already
been rung.

I don't (or can't, I'm unsure) believe that lawyers of this caliber make
mistakes like this. So what was her play by doing this? Did it pay off?

~~~
AnimalMuppet
I suspect (but do not know) that this is information that Google doesn't want
out there. It costs them an information edge in negotiations that may cost
them hundreds of millions of dollars (again, my guess). So it may be very
painful for Google to have this information out.

Oracle may have done this deliberately just to make the lawsuit more painful
to Google. The unspoken message is "Don't you want this to just go away? You
could settle with us. If you don't, we can continue to make it hurt."

~~~
sangnoir
> The unspoken message is "Don't you want this to just go away? You could
> settle with us. If you don't, we can continue to make it hurt."

To continue down this Machiavellian rabbit-hole; this then is Google saying to
all lawyers who might agree to cooperate with Oracle in similarly murky
shenanigans in the future "We will come after you"

~~~
chris_wot
Reminds me of Australian Federal Parliament. The previous Prime Minister
obstructed the government of the day when he was an opposition leader by
stopping "pairs" \- where if one member of parliament could not be present the
opposition agrees to have a member abstain from voting.

He did that in a hung parliament, now they are in government the Labor party
are doing the same hardball tactics. It's making the government's life hell.

------
yongjik
Off-topic, but I find it strange that money in the order of $1B can change
hands between two mega-corporations without anyone outside having an inkling,
while I could find websites saying exactly how much a low-level government
worker earns in a social services center in my county. (Spoiler: much less
than I used to earn as developer.)

Shouldn't the structure of accountability be in the other direction?

~~~
johncolanduoni
Could you explain more about why you think so? I think the ordering is pretty
much what I want, even if I'm not necessarily happy with the absolute numbers.

~~~
yongjik
1\. Government workers are your fellow citizens, and they have a right to
privacy as everyone else. I don't think "how much a specific low-level
government worker earns" is anybody else's business. If you are worried about
government spending, you should be able to check aggregate statistics.

2\. If companies can spend/earn $1B without anyone knowing, how are we going
to tax them properly? If only the government knows and no one else, then we're
basically asked to trust the government and corporations to be honest. When
they are't, they cause much more financial harm to me (because my tax has to
make up for it) than some county office giving everyone a higher raise than
necessary.

~~~
Tinyyy
I don't see how tax is a valid point. 99% of individuals and corporations do
not have their spendings - that's not only the net flow, but also the
breakdown of revenue and costs - revealed to the public. To imply that they
might be dishonest, and that dishonesty will not be caught by the government,
would mean that everybody has to release their spendings to the public. Mark
Zuckerberg could be cheating on his taxes. You could be cheating on your
taxes. Surely you don't want to cause financial harm to the rest of us?

~~~
yongjik
With greater money comes greater power. With greater power comes greater
responsibility.

Publicly traded companies already have to disclose salaries of their CEOs, but
not their janitors. Same logic.

~~~
Tinyyy
You complain about the status quo and then cite the status quo in your
argument?

------
JadeNB
The judge tried to reveal the depth of this revelation by comparing it to that
of the most secret thing he could imagine:

> If she had had the recipe for Coca-Cola she could have blurted it out in
> this court right now.

(Seriously!)

EDIT: I wasn't trying to be snarky or silly, just pointing out an aspect of
the story that struck me as funny. Serious request: if that is inappropriate,
please let me know rather than just silently downvoting. In that case, I
apologise and will delete the post.

~~~
UnoriginalGuy
What's wrong with that analogy? Coca Cola's exact formula is proprietary
information, so saying it in court could cause damages (e.g. other
manufacturers could make a perfect clone and undercut Coca Cola).

There's even an article on Coca Cola's supposed secret formula[0] which
further validates the analogy by making it an archetype for proprietary
information.

[0] [https://en.wikipedia.org/wiki/Coca-
Cola_formula](https://en.wikipedia.org/wiki/Coca-Cola_formula)

~~~
JadeNB
Nothing's wrong with it as an analogy; I would have found "this is like
blurting out Coca-Cola's secret formula!" extremely apt, not least for the
reason that you mention. However, the judge's wording

> If she had had the recipe for Coca-Cola she could have blurted it out in
> this court right now.

seemed less like a comparison than a description of the dire consequences of
this sort of behaviour, and it struck me as funny: surely anyone who's
unconvinced of the seriousness of blurting out one business's proprierary
information won't be convinced about the seriousness of blurting out
another's?

~~~
slavik81
Coca-Cola's formula is literally a textbook example of a trade secret.
Everybody remotely familiar with IP law knows how important secrecy is for
Coke. Many fewer people are familiar with how important it is for Google. The
comparison shows that the same rule protects both, and that it should not be
carelessly breached.

------
edgesrazor
Off topic: I may be old and cranky, but I simply can't stand articles with
animated gifs - it just seems ridiculously unprofessional.

~~~
cheeze
I'm with you 100%. When I see an animated gif, it likens the article to
clickbait or those 'my reaction when' pages. I'm here to read news, not watch
funny images that appeal to to the lowest common denominator.

------
b1daly
Slightly off topic, but I've always had a hard wrapping my head around the
stance the somehow an API is distinct from code. I understand that it's an
abstraction in programming, and that industry practice has been that it's
acceptable to take an existing API that you didn't create and write a new
implementation.

But since the API is "implemented" in code, it seems like for the purpose of
copyright consideration that the distinction is simply one of custom.

It's a programming abstraction, to create your own "implementation" of the API
you still have to use code that is identical to original.

Alsop's original, overturned, ruling was that as a matter of law API's
couldn't be copyrighted because they express an idea that can only be
expressed exactly that way, and traditionally this would not be allowed (can't
copyright an idea). As I understood it, his concept implied that to get IP
protection over an API would require something more like patent protection. (I
might be totally wrong on this).

~~~
j1vms
> It's a programming abstraction, to create your own "implementation" of the
> API you still have to use code that is identical to original.

Not if you think of it like this really rough analogy: if the software product
is a closed box, the API is the different configuration of holes cut in the
box, and the code is whatever is inside the box. So you can imagine that
boxes, despite being cut with identical holes, could hold different things
within.

Going a bit deeper would be to consider that software with identical API, and
different implementations may have different run-time characteristics between
them. That is, the same API call in one implementation may take twice as long
to execute than in another implementation. Further, depending on how
explicit/rigid the API spec is, a call in one implementation could have some
"out-of-band" behavior (e.g. affect another software system unbeknownst to the
calling routine; or every API call may be logged in one implementation, but
not logged in another).

------
bitmapbrother
Regardless of the outcome her career in litigating high profile cases is
pretty much over. You simply do not utter highly confidential company
information accidentally. It was intentional and it was done to paint a
picture to the jury about how much money Google was making from Android and
what it was paying Apple.

~~~
euyyn
But you'd think her client would be happy about it, no? How would that end her
career (even though it maybe should)?

~~~
sangnoir
In future discoveries involving her firm, this event will be raised by the
opposing parties - hell, Judge Aslup said he _hopes_ that happens. I'm sure
others will outright refuse to divulge confidential information to her firm
and get away with it too. It probably won't end her career, but it will cost
her and her firm a lot of business.

------
1024core
> Oracle attorney Melinda Haag

God I hate that woman. When she was a US Attorney for SF, she went around and
threatened to seize buildings where medical cannabis dispensaries were
located, in full compliance of the local laws. Because she couldn't do any
thing to the dispensary directly, she threatened their landlords. This was
_after_ Obama had said that DoJ would not interfere with dispensaries which
were operating within the state laws.

~~~
cortesoft
Do you think it was her decision to do that? Or was she directed to by her
boss?

~~~
facetube
In either case it was ultimately her decision. Following orders is not an
excuse for unethical behavior.

~~~
tamana
You mean, "refusing POTUS's orders to undermine the law of the USA, is
unethical?"

------
wfunction
As someone who knows zilch about business, I don't quite understand why people
knowing these numbers is so devastating. What will another company do with
these two numbers that it otherwise wouldn't do?

~~~
akiselev
Now everyone knows just how valuable Android is for Google so they can hold
them over a barrel for more money, such as when Google is negotiating a patent
licensing agreement for some critical patent in the Android ecosystem. If no
one knows what the number is, you can at least play it down and get a better
deal. Now there's no chance.

------
joering2
"... or Robin Thicke being forced to plunge his own toilet."

Can someone explain me this one??

------
AceJohnny2
If a lawsuit of this scale can be considered the corporate equivalent of war,
contempt of court is equivalent to being declared a war criminal.

------
c3534l
How can a public corporation keep those two numbers secret? Those are basic
cost and revenue numbers that should be disclosed in their annual financial
statements. The fact that it's legal to keep those numbers secret means
there's something very wrong with how we do financial disclosure in America.

------
swehner
Why now? The blurting happened in January.

------
ocdtrekkie
If anything, my only sadness is that more of Google's dirty laundry wasn't
aired. This illusion that Google search is winning because people prefer it
and that Google doesn't make money on Android are both claims I'm happy to see
debunked. Google's anti-monopoly claims fundamentally hinge on concepts like
these.

And if a lawyer did break the law by doing it, I say she belongs on the same
high pedestal people put Snowden on.

~~~
LeifCarrotson
> This illusion that Google search is winning because people prefer it

People preferring it and Apple or Mozilla asking Google to pay them to include
the search bar are not exclusive.

If consumers prefer Google, and Apple couldn't make enough money with their
own search engine to compensate for the lost users, it would make sense for
Apple to pay Google for the right to use their search bar. Sure, Google could
theoretically make money by giving it to them for free, or even by paying them
to include it (see Mozilla), but why not get paid twice?

> and that Google doesn't make money on Android

I don't think anyone seriously believes that Android doesn't make money. Why
else would Google put so much money into it in the first place?

~~~
ocdtrekkie
It's well understood, I think, that the biggest determiner of what search
engine people use is the default one put in front of them. That's why Google's
willing to spend a billion dollars to be that default. Google's claims to it's
antimonopoly position often hinges on the claim that it's a 'natural'
monopoly, created simply by the fact that they have the best product. It's
unsurprising, then, that they're so angry that this lawyer revealed Google
pays so much to ensure their dominance.

Google has long held that Android is something like a charity project, to
"ensure an open future for mobile" or something like that. You can still see
signs of it in the terms of the "Open Handset Alliance", which is actually the
group of manufacturers Google forbids from using open source Android,
ironically. It's also commonly the defense for why Google isn't a monopoly
here: It "gives Android away for free". In reality, Google collects billions
in profit, and leaves all of the software patching and support burdens on
manufacturers, who can barely turn a profit and are held to Google's
increasingly controlling mandates over how Android must be distributed. (I'm
sure many OEMs after this case are curious why they're getting such a raw deal
on Android, which is another reason it's unsurprising Google is so angry at
Oracle.)

~~~
bitmapbrother
So many lies. Google does not "forbid" their OEM partners from using open
source Android. What they forbid is that a member of the OHA cannot create a
fork of Android that breaks the CTS. If you want to do so then you're free to
leave the OHA and create your own version.

As for your search engine theory, well, that's also incorrect. The default
search engine on Windows is bing - in fact it's baked into the OS and cannot
even be turned off. The default search engine on their browser is also bing.
So it would seem people are going out of their way to either download Chrome
and use Google as their default search engine or modify the default search
engine in Windows to use Google.

~~~
johncolanduoni
It's also worth noting that a pure, pro-bono open source project would still
likely be interested in such a provision to help ward off an embrace-extend-
extinguish scenario by controlling access to the trademark.

