Oracle blinked. In a unique judicial order on juror privacy in the Java copyright case, Oracle and Google were warned last week they must tell prospective jurors if they conduct intrusive monitoring of prospective juror posts on Facebook, Twitter and LinkedIn. Or both sides could agree to a ban on such snooping.
Even before U.S. District Judge William Alsup issued the order Friday, Google had said it would abide by a ban on such searches but only if Oracle agreed. Oracle refused, so Alsup said the company would have to disclose to jurors just what it was doing.
Today Oracle said it “consents to the court’s proposed ban on all juror research, including internet and social media research” until the trial is over.
Alsup’s detailed order last week broke new ground in the emerging area of juror social media privacy. It also outlined a method for holding lawyers and companies to account for such snooping during jury selection and into a trial.
The Copyright Dispute
In 2010, Oracle sued Google claiming Google had infringed Oracle copyrights to Java Application Programming Interfaces (APIs). These are the protocols and tools that allow software developers to write programs for the vast array of “apps” available online.
It accused Google of using Java source code to operate Google’s Android phones and thus infringe Oracle’s copyrights. Sun Microsystems created the Java APIs and in 2010 Oracle closed a $5.6 billion deal to acquire Sun and takeover the copyrights.
In 2012, Alsup ruled that APIs were not subject to copyright but were simply utilitarian tools. Oracle appealed and in 2013, over opposition from many computer science experts, the Federal Circuit overturned Alsup. It found Java APIs copyrightable. The U.S. Supreme Court refused to take up the case in in 2015, sending it back for a copyright trial before Alsup.
As jury selection approached, Alsup learned lawyers planned to extract personal data about the jury panel, including plans to “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data” on jurors. Both Oracle and Google finally admitted it.
But this was not just for jury selection purposes, both sides also planned to continue the monitoring during the trial to detect whether jurors made improper posts to friends or commented on the trial in the face of traditional juror warnings not to talk about cases.
Alsup worried about the likely “corrosive effect on fidelity to the no-search admonition” given to jurors.
Rather than impose a ban on juror background searches, Alsup gave both sides a choice. Either both sides would tell the jury pool at the outset of selection that they agreed to a ban on internet research about them, or if they would have to disclose exactly what the lawyers, jury consultants or the companies planned to investigate and monitor during the trial.
Not only would they have to tell jurors what social media accounts would be searched, but the extent of the searches, including any monitoring of jurors while the trial was underway. The lawyers can’t blame the other side for instigating the practice or suggest the judge approved the intrusion, he said.
Jurors will be given an opportunity to raise their online privacy settings, if they wish, he said.
Case: Oracle America Inc. v. Google Inc., No. 10-3561
Order: Docket #1573