Oracle America, Inc. v. Google Inc.
Filing
1240
RESPONSE to re #1238 Order to Supplement by Google Inc.. (Attachments: #1 Exhibit Part 1, #2 Exhibit Part 2)(Van Nest, Robert) (Filed on 8/24/2012)
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KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
rvannest@kvn.com
CHRISTA M. ANDERSON - # 184325
canderson@kvn.com
DANIEL PURCELL - # 191424
dpurcell@kvn.com
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
415 391 5400
Facsimile:
415 397 7188
KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
fzimmer@kslaw.com
CHERYL A. SABNIS - #224323
csabnis@kslaw.com
101 Second Street, Suite 2300
San Francisco, CA 94105
Tel: 415.318.1200
Fax: 415.318.1300
KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
sweingaertner@kslaw.com
ROBERT F. PERRY
rperry@kslaw.com
BRUCE W. BABER (Pro Hac Vice)
1185 Avenue of the Americas
New York, NY 10036
Tel: 212.556.2100
Fax: 212.556.2222
IAN C. BALLON - #141819
ballon@gtlaw.com
HEATHER MEEKER - #172148
meekerh@gtlaw.com
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Tel: 650.328.8500
Fax: 650.328.8508
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Attorneys for Defendant
GOOGLE INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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ORACLE AMERICA, INC.,
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Plaintiff,
GOOGLE’S RESPONSE TO ORDER TO
SUPPLEMENT
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v.
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GOOGLE INC.,
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Case No. 3:10-cv-03561 WHA
Dept.:
Judge:
Courtroom 8, 19th Floor
Hon. William Alsup
Defendant.
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SUPPLEMENTAL DISCLOSURE
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In response to the Court’s August 20, 2012 Order to Supplement (Dkt. 1238), Google
again states that neither it nor its counsel has paid an author, journalist, commentator or blogger
to report or comment on any issues in this case. Pursuant to the Court’s clarifications in the Order
to Supplement, the required disclosure does not include advertising revenue, disclosed experts, or
gifts to universities. Id. at 1-2. It does, however, include (a) “all commenters known by Google
to have received payments as consultants, contractors, vendors, or employees”; and (b) employeecommenters at organizations who receive money from Google. Id. With that in mind, Google
provides the following supplemental disclosure.
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As Google indicated in its initial Response (Dkt. 1237) Google supports a wide range of
individuals and organizations, many of whom regularly comment on issues relevant to
technology, often taking positions adverse to Google. See, e.g.,
http://www.google.com/publicpolicy/transparency.html. Google has conducted a reasonable and
diligent search, and has identified specific individuals and organizations in this supplemental
disclosure who have commented on the issues in this case. Google did not pay for comments
from any of the commenters listed in this disclosure. Nor did Google cite or rely on any of these
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commenters in its briefing in this case.
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I.
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CONSULTANTS, CONTRACTORS, VENDORS, OR EMPLOYEES.
Besides the specific individuals listed below, Google is not aware of any other
consultants, contractors, vendors, or employees having commented on the litigation. Google did
not pay for comments from any of these commenters.
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A.
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William Patry
William Patry is currently a Google employee, and was a Google employee during the
pendency of the lawsuit. In 1996, well over a decade before this lawsuit was filed, Mr. Patry
authored an article entitled Copyright and Computer Programs: It’s All in the Definition, 14
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Google referenced Jonathan Band’s book, Interfaces on Trial 2.0 (MIT Press 2011), in its April
3, 2012 Copyright Liability Trial Brief. As explained in Section II.B., below, Mr. Band’s book is
not a “comment” on this case—it was accepted for publication before Oracle filed this lawsuit.
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Cardozo Arts & Ent. L.J. 1. Oracle cited Mr. Patry’s article in its April 3, 2012 Brief Regarding
Copyright Issues (Dkt. 853).
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B.
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Timothy Bray
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. See Ex. A (available at
https://twitter.com/timbray/status/21023407881). In that post Mr. Bray noted that he was
speaking only for himself as an individual. Id.
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C.
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Bruce Perens
Bruce Perens served as a consulting expert related to the lawsuit for Google. Mr. Perens
commented on the lawsuit during its pendency, but before being engaged by Google. See Ex. B
(“Oracle Sues Google For Infringing Java Patents,” available at
http://web.archive.org/web/20110104025930/http://perens.com/blog/d/2010/8/13/32/); Ex. C
(“Oracle v. Google Java Lawsuit - Rationale Becoming More Clear,” available at
http://web.archive.org/web/20110104031315/http://perens.com/blog/d/2010/8/13/33/); see also
(http://news.slashdot.org/story/10/08/13/0255205/oracle-sues-google-for-infringing-java-patents).
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D.
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Professor Mark Lemley serves as outside counsel to Google in unrelated cases, as does the
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law firm at which he is a partner: Durie Tangri.
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Prof. Mark Lemley
Prof. Lemley provided commentary for press reports related to the lawsuit. For example,
Prof. Lemley was quoted in a San Francisco Chronicle article by James Temple dated April 25,
2012. See Ex. D (available at http://www.sfgate.com/business/article/Oracle-Google-case-showspatent-system-flaws-3507618.php). Prof. Lemley was also quoted in a May 7, 2012 article by
Brendan Bailey in the Mercury News. See Ex. E (available at
(http://www.mercurynews.com/business/ci_20566834/google-oracle-trial-verdict-ruling-
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Google does not interpret the Court’s initial Order nor the Order to Supplement as requiring a
response regarding Google’s counsel in the litigation.
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copyright-jury-mistrial?IADID=Search-www.mercurynews.com-www.mercurynews.com). And
Prof. Lemley provided commentary regarding the lawsuit for a May 7, 2012 KQED report by Cy
Musiker. See Ex. F (text available at
http://www.kqed.org/news/story/2012/05/07/93195/mixed_ruling_in_oracle_google_infringemen
t_case?category=bay+area).
Prof. Lemley also provided commentary via his personal Twitter account. For example,
on May 7, 2012, Prof. Lemley posted a comment regarding the copyright verdict. See Ex. G
(available at https://twitter.com/marklemley/statuses/199605924862771200). On May 23, 2012,
Prof. Lemley also re-tweeted another Twitter post related to an interview with the foreperson for
the jury in this lawsuit. See Ex. H (available at
https://twitter.com/marklemley/statuses/205429756366307331)
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E.
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James Gosling
James Gosling left Oracle America, Inc. in April 2010, before the filing of the lawsuit.
Mr. Gosling was employed by Google from March 2011 to August 2011. Mr. Gosling maintains
a personal blog: http://nighthacks.com/roller/jag/. Google is not aware of Mr. Gosling blogging
about the lawsuit during his employment at Google. Out of an abundance of caution, because Mr.
Gosling was at one time paid by Google (as a Google employee), Google notes that Mr. Gosling
did blog about the lawsuit before he was employed by Google, see, e.g., Ex. I
(http://nighthacks.com/roller/jag/entry/the_shit_finally_hits_the). Mr. Gosling also blogged about
the lawsuit after his employment with Google ended. Specifically, during trial, Mr. Gosling
wrote a blog post about the case. See Ex. J (available at
http://nighthacks.com/roller/jag/entry/my_attitude_on_oracle_v). And Mr. Gosling also
commented about the outcome of the trial. See Ex. K (available at
http://nighthacks.com/roller/jag/entry/ovg_it_s_finally_almost). Google does not know whether
and to what extent Mr. Gosling may have been receiving compensation from Oracle during the
pendency of the lawsuit under the terms of any agreement between Mr. Gosling and Oracle.
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F.
Timothy B. Lee
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Timothy Lee is a former engineering intern at Google. He left Google in late August
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2010, shortly after Oracle filed the lawsuit. Mr. Lee has been writing for the website Ars
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Technica since late 2010, and began writing about this lawsuit in 2011. At that time he was no
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longer employed (or being paid) by Google. Mr. Lee’s articles about this lawsuit include recent
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articles about the Court’s orders seeking disclosure of the parties’ relations with commentators.
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See Ex. L (“Judge: Google didn't follow ‘show your shills’ order,” Aug. 20, 2012, available at
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http://arstechnica.com/tech-policy/2012/08/judge-google-didnt-follow-show-your-shills-order/);
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Ex. M (“Oracle, Google still bickering over paid shills long after trial,” Aug. 17, 2012, available
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at http://arstechnica.com/tech-policy/2012/08/shill-count-oracle-1-google-0/); Ex. N (“With anti-
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shill order, Google/Oracle judge enters ‘uncharted territory,’” Aug. 7, 2012, available at
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http://arstechnica.com/tech-policy/2012/08/with-anti-shill-order-googleoracle-judge-enters-
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uncharted-territory/); and Ex. O (“‘Name your shills,’ judge orders Oracle, Google,” Aug. 7,
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2012, available at http://arstechnica.com/tech-policy/2012/08/name-your-shills-judge-orders-
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oracle-google/). Mr. Lee’s articles about the lawsuit also include commentary regarding the
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Court’s requests for further briefing regarding copyrightability issues. See Ex. P (“Oracle v.
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Google judge asks for comment on EU court ruling,” May 3, 2012, available at
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http://arstechnica.com/tech-policy/2012/05/oracle-google-judge-asks-for-comment-on-eu-court-
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ruling/).
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Mr. Lee has also published posts via his personal Twitter account. For example, on
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August 7, 2012, Mr. Lee re-tweeted a post linking to his Ars Technica article “‘Name your shills,’
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judge orders Oracle, Google.” See Ex. Q (available at
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https://twitter.com/arstechnica/status/232927734421143552). Subsequently, Mr. Lee posted that
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he might be on Google’s list of disclosed persons because he finished his internship for Google
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shortly after Oracle filed this lawsuit. See Ex. R (available at
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https://twitter.com/binarybits/status/232936371529060352). In a separate post on Twitter that
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same day Mr. Lee noted that, while he had received some money from Google while in graduate
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school, he had received no money from Google since becoming a full-time journalist. See Ex. S
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(available at https://twitter.com/binarybits/status/233008099500380160). On August 17, 2012,
Mr. Lee also re-tweeted a Twitter post authored by Paul Alan Levy. See Ex. T (available at
https://twitter.com/paulalanlevy/status/238020508682174464). On August 8, 2012, Mr. Lee
posted a message on Twitter that quoted from a Twitter post by Mr. Levy. See Ex. U (available at
https://twitter.com/binarybits/status/233332071257501696).
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II.
EMPLOYEE-COMMENTERS AT ORGANIZATIONS WHO RECEIVE MONEY
FROM GOOGLE
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Besides the specific individuals listed below, Google is not aware of any other employee-
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commenters having commented on the litigation. Google did not pay for comments from any of
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these commenters.
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A.
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Oracle’s falsely suggests that Ed Black of the Computer and Communications Industry
Computer and Communications Industry Association
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Association (“CCIA”) was acting under the influence of Google money when he wrote a column
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stating the position that APIs are not copyrightable. Oracle and its counsel had to have known
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that CCIA’s position on APIs pre-dated Google’s membership in CCIA—and in fact predated
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Google’s incorporation in 1998.
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Mr. Black has publicly stated that Google did not ask him to write in support of its
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position, and that CCIA’s position that APIs are not copyrightable “goes back to the 1990s.” See
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Ex. V (“Google: No Paid Bloggers Here, Your Honor,” Aug. 17, 2012, available at
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http://allthingsd.com/20120817/google-no-paid-bloggers-here-your-honor/?mod=googlenews).
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In fact, in December 1995, CCIA, with Mr. Black on brief, joined an amicus brief filed by the
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American Committee for Interoperable Systems (“ACIS”) in the Supreme Court case Lotus v.
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Borland, arguing that interface specifications are not copyrightable. Ex. W (amicus brief cover
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page). The counsel of record on that brief was Peter M.C. Choy, who at the time was a Deputy
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General Counsel for Sun Microsystems. Id. Mr. Choy was also chairman of the ACIS. Ex. W-1
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(November 5, 1992 letter from Sun). Sun was an ACIS member and “play[ed] a leading role” in
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the organization. Id. at 1. ACIS’s Statement of Principles, as attached to the November 5, 1992
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letter, stated: “The rules or specifications according to which data must be organized in order to
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communicate with another program or computer, i.e., interfaces and access protocols, are not
protectable expression under copyright law.” Id. at 4. Oracle too was an ACIS member. Id. at 5;
see also Ex. V (All Things Digital article dated Aug. 17, 2012). Professor Paul Goldstein, who
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was also on the ACIS amicus brief, was then, as he is now, of counsel at Morrison & Foerster.
Ex. W (amicus brief cover page).
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The CCIA has commissioned studies by Mike Masnick, CEO of Floor64. See
http://www.floor64.com/about.php. Mr. Masnick has commented on the case on the TechDirt
website and on his personal friendfeed.com account. See Ex. X (available at
http://www.techdirt.com/articles/20120523/11050519050/boom-jury-says-no-patentinfringement-google-oracle-case.shtml and at http://friendfeed.com/mmasnick/a3a94012/jurygoogle-did-not-infringe-on-oracle-patents).
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B.
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Likewise, Oracle falsely suggests that Jonathan Band’s book Interfaces on Trial 2.0 was
influenced by Google money. Here, too, Oracle and its counsel had to have known that its
accusations were off base.
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Mr. Band has publicly stated that Interfaces on Trial 2.0 was accepted for publication in
2009—before Oracle acquired Sun Microsystems, and before the complaint in the case at bar was
filed. Ex. V (All Things Digital article dated Aug. 17, 2012). Moreover, much of the book was
based on even older articles, in some cases with other Morrison & Foerster lawyers as co-authors.
Id.; see also Interfaces on Trial 2.0 at 50 n.100 (subsection based on 1996 article by Mr. Band
and Noah Levine, then a Morrison & Foerster summer associate); id. at 64 n.144 (subsection
based on 1999 article by Mr. Band and Taro Isshiki, then a Morrison & Foerster associate); see
also id. at 22 n.3, 34 n.46, 37 n.50 56 n.117 & 60 n.132 (subsections based on 1995, 1996, 2000
and 2006 articles by Mr. Band).
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Jonathan Band
In addition, as the title suggests and as is confirmed in the introduction, Interfaces on Trial
2.0 is a follow-up to a previous book by Mr. Band and his co-author. The prior book, Interfaces
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The brief lists Professor Goldstein’s affiliation with Stanford Law School.
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on Trial: Intellectual Property and Interoperability in the Global Software Industry, was
published in 1995, years before the case at bar was filed. In the acknowledgements to that book,
the authors thank, among others, Oracle’s lead counsel Michael Jacobs, as well as then Sun
Microsystems Deputy General Counsel Peter Choy, and Professor Goldstein. See Interfaces on
Trial: Intellectual Property and Interoperability in the Global Software Industry at xiii. At the
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time, Mr. Band was a Morrison & Foerster partner. Id. at 361.
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C.
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The Electronic Frontier Foundation (“EFF”) is a non-profit organization whose mission is
to “defend[] free speech, privacy, innovation, and consumer rights,” see
https://www.eff.org/about, with long-standing public views on the importance of interoperability.
See, e.g., https://www.eff.org/cases/blizzard-v-bnetd. Google has contributed to the EFF for
years before the complaint in the case at bar was filed.
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Michael Barclay, now a volunteer fellow for the Electronic Frontier Foundation,
commented on the case on his blog, IP Duck.
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See Ex. Y (available at
http://ipduck.blogspot.com/2012/05/judge-alsup-rules-that-java-apis-are.html); Ex. Z (available at
http://ipduck.blogspot.com/2012/05/phase-one-verdict-in-oracle-v-google.html). Mr. Barclay’s
interest in the copyrightability of software interfaces, however, long predates his association with
EFF, and in fact predates Google’s existence—Mr. Barclay represented Borland in Lotus v.
Borland. Ex. AA (Borland’s Supreme Court merits brief).
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Electronic Frontier Foundation
Julie Samuels is a Staff Attorney at the EFF focusing on intellectual property issues. See
https://www.eff.org/about/staff/julie-samuels. In that capacity, Ms. Samuels frequently
comments on intellectual property cases of note, including this case. See Ex. BB (“No
Copyrights on APIs: Judge Defends Interoperability and Innovation,” May 31, 2012, available at
https://www.eff.org/deeplinks/2012/05/no-copyrights-apis-judge-defends-interoperability-andinnovation); Ex. CC (“Oracle v. Google and the Dangerous Implications of Treating APIs as
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His co-author worked for Fujitsu.
Mr. Barclay, before retiring, was a partner at Wilson Sonsini Goodrich & Rosati, which
represents Google in various matters, but not the case at bar.
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Copyrightable,” May 7, 2012, available at https://www.eff.org/deeplinks/2012/05/oracle-vgoogle-and-dangerous-implications-treating-apis-copyrightable); Ex. DD (“Oracle v. Google
Shows the Folly of U.S. Software Patent Law,” April 23, 2012, available at
http://www.wired.com/wiredenterprise/2012/04/opinion-samuels-google-oracle/); Ex. EE (“Could
an Oracle Win Against Google Blow Up the Cloud?,” May 7, 2012, available at
http://www.wired.com/wiredenterprise/2012/05/oracle_clou/); Ex. FF (“What’s at stake in Oracle
v. Google?,” May 11, 2012, available at
http://www.computerworld.com.au/article/424370/what_stake_oracle_v_google_/#closeme); Ex.
GG (“Legal experts decipher Oracle-Google Verdict,” May 7, 2012, available at
http://news.cnet.com/8301-1001_3-57429590-92/legal-experts-decipher-oracle-google-verdict/);
Ex. HH (“Google Beats Oracle Patent Claim,” May 23, 2012, available at
http://www.informationweek.com/software/operating-systems/google-beats-oracle-patentclaim/240000926).
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D.
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Public Knowledge
Public Knowledge is a non-profit organization whose mission is to “preserv[e] the
openness of the Internet and the public’s access to knowledge; promot[e] creativity through
balanced copyright; and uphol[d] and protect[t] the rights of consumers to use innovative
technology lawfully.” See http://www.publicknowledge.org/about. Google has contributed to
Public Knowledge for years before the complaint in the case at bar was filed. Public Knowledge
has commented on the case. See Ex. II (available at
http://www.publicknowledge.org/blog/copyright-compatibility); Ex. JJ (available at
http://www.publicknowledge.org/blog/gpl-does-not-depend-copyrightability-apis).
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E.
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Center for Democracy and Technology
Jon Miller is at the Center for Democracy and Technology (“CDT”) as a 2012 Google
Public Policy Fellow. His fellowship focuses on digital copyright, government surveillance, and
cybersecurity policy. On June 13, 2012, Mr. Miller authored a blog post on the CDT website
commenting on the outcome of the lawsuit. See Ex. KK (“Oracle v. Google: A Win for Software
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Everywhere,” available at https://www.cdt.org/blogs/cdt/1306oracle-v-google-win-softwareeverywhere). Google is not aware of any other posts or commentary by Mr. Miller.
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Lauren Weinstein at Vortex Technology
Lauren Weinstein is affiliated with Vortex Technology, an organization that has
conducted research for Google. Mr. Weinstein has commented on the case on his personal
Google+ feed. See, e.g., Ex. LL (available at
https://plus.google.com/s/Lauren%20weinstein%20%26%20google%20%26%20oracle).
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G.
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Competitive Enterprise Institute
Competitive Enterprise Institute (“CEI”) is “a non-profit public policy organization
dedicated to advancing the principles of limited government, free enterprise, and individual
liberty.” See http://cei.org/about-cei. Google has contributed to CEI for years before the
complaint in the case at bar was filed. CEI has commented about the case. See Ex. MM
(available at http://cei.org/citations/apple-samsung-chiefs-pick-their-marbles-and-go-home).
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Dated: August 24, 2012
KEKER & VAN NEST LLP
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By:
/s/ Robert A. Van Nest
ROBERT A. VAN NEST
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Attorneys for Defendant
GOOGLE INC.
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