The unusual request comes months after the “World Series” of intellectual property trials in which Oracle unsuccessfully sued Google for billions.

The trial was remarkable not only for the large damage figures but for Oracle’s decision to hire Florian Mueller, a self-described “patent analyst” who also takes money from Microsoft. In his FOSS Patents blog, Mueller wrote a series of one-sided posts over the course of the trial such as “Oracle Java patent rises like Ph0enix from the ashes.”

Despite a lack of legal training, Mueller holds himself out as a patent expert to the media and typically does not disclose that he is paid by the companies he reports on (he disclosed an Oracle relationship briefly at the outset of the trial but did not do so subsequently or to other media). Mueller has also blocked me and other journalists who have questioned his impartiality from viewing his Twitter feed.

Alsup does not provide detailed reasons for his order, which was first reported in a tweet by Reuters reporter Dan Levine, but does state that the information would be useful on appeal:

to make clear whether any treatise, article, commentary or analysis on the issues posed by this case are possibly influenced by financial relationships to the parties or counsel.

In the larger picture, Alsup may be calling attention to the growing phenomenon of astro-turfing — individuals or groups who receive money to pose as voices of the public interest. The Federal Trade Commission has in the past fined a company for failing to disclose paid endorsements. An FTC official told paidContent earlier this year that endorsers must disclose all material facts, including when they comment about a competitor.

Here is Judge Alsup’s order:

Blogger Order

(Image by Imagelabs via Shutterstock)

The phenomenon has been on display again during this week’s epic intellectual property trial between Google vs Oracle. Florian Mueller, a self-proclaimed patent expert funded by both Oracle and Microsoft, has been issuing a flurry of biased blog posts that don’t mention his paymasters. (His risible excuse for the shameless plumping is that he’s an “analyst”).

Microsoft is hardly the first company to astroturf but it does deserve special mention for being a master of the craft. As well as its patent puppet, the company has a roster of other hired mouths. These include law professor James Grimmelmann who it paid to collect criticism of the Google book settlement and ICOMP a group devoted to smearing its rivals in the European Parliament. A number of mom-and-pop businesses suing Google for antitrust, it turns out, are also tied to Microsoft.

[Update: Grimmelmann notes that Microsoft had no approval or veto power over how the funds were used and adds the project also received support from the American Library Association. The project continues as a public resource website.]

This type of professional distortion may strike some as unethical. There is also the question of whether it should be illegal.

The Astroturf Police

In 2009, the Federal Trade Commission announced new rules about bloggers and endorsements. The rules seemed mostly for show until a year later when the FTC fined a public relations firm $250,000 for seeding Apple’s iTunes store with fake reviews.

The rules make it illegal to endorse companies without disclosing that you are being paid to do so. It’s less clear, though, if they also apply to writers who receive money to tear down competitors.

According to an FTC spokesperson, the rules require a paid endorser to disclose “all material facts.”

“An endorser’s affiliation would be considered material to readers as they evaluate what the endorser says about the competitors of the company that compensates the endorser,” she added.

This suggests that the FTC may have the power to rein in negative astro-turfing. But is this a good idea? Civil libertarians have long argued that the best solution to bad speech is not penalties but instead more speech.

Sleazy or Smart Business?

While the legal or ethical case for astro-turfing may be shaky, the business case is stronger.

For a company like Microsoft that is in tight competition for billions of dollars, spending a few million on astroturf may be a smart strategy. The potential pay-off is huge — especially if astroturf efforts get a rival dragged before court or regulatory investigations.

Some would add that astroturf is simply a part of playing in the corporate big-leagues. Political parties do it so why shouldn’t companies? In this light, companies that don’t astoturf are simply the tech equivalent of Washington goo-goos.

Likewise, nearly every big company donates money to non-profit groups, many of which have aggressive agendas. Astro-turfing could be considered just a further extension of this practice.

The problem here is that astro-turfing may help companies but it also harms the public’s ability to understand complicated issues in technology. Many people distrust the tech sector to begin with — soaking the news with misinformation can only deepen their suspicion.

For now, the only hope to tear up the astroturf is for companies to stop paying for it or for those who do it to get a conscience. It  may be a long wait either way.