Google, Oracle Must Reveal Search |of Social Media for Juror Profiles

     SAN FRANCISCO (CN) – Oracle and Google must reveal exactly how they plan to scour the social media profiles of potential jurors before a second copyright trial between the two tech giants kicks off this May, a federal judge ruled Friday.
     After both sides requested extra time to review potential jurors’ answers to questionnaires, U.S. District Judge William Alsup said he realized the attorneys really wanted that time to scrub potential jurors’ social media accounts for personal data.
     “In this case there are good reasons to restrict, if not forbid, such searches by counsel, the jury consultants, investigators and clients,” Alsup wrote in a March 25 ruling.
     Allowing both sides to research prospective jurors poses a host of issues, Alsup said, including fears that attorneys might use the information to make personal appeals to certain jurors during trial.
     “For instance, if a search found a juror’s favorite book is “To Kill A Mockingbird,” it wouldn’t be hard for counsel to construct a copyright jury argument (or line of expert questions) based on an analogy to that work and to play upon the recent death of Harper Lee, all in an effort to ingratiate himself or herself into the heartstrings of that juror,” Alsup said.
     The judge also voiced concern that jurors might be less willing to follow the court’s instructions not to research the attorneys or case when the lawyers themselves are given carte blanche to spy on the jurors’ online profiles.
     “For these reasons, the court has considered imposing an outright ban on counsel and the parties from researching potential jurors on the Internet,” Alsup wrote in his 13-page ruling.
     However, ordering an outright ban would also prevent the lawyers from learning information about the jurors that would be readily available to the press and members of the public, Alsup said.
     Instead of issuing a total ban on researching jurors online, Alsup instead called on both parties to voluntarily vow not to conduct Internet research on jurors and potential jurors until the trial is over.
     But in prior filings to the Court, Oracle attorneys argued they should be able to monitor jurors’ online profiles to make sure they don’t post information about the case during the proceedings, an act that could be grounds for a mistrial.
     “The phenomenon of jurors using social media to discuss cases in progress is a significant and serious one, and the parties should not be required to forfeit their right to monitor for this potential,” Oracle wrote in a March 9 brief.
     Another issue Alsup identified is fear that the well-known defendant in this trial – Google – could make jurors feel uneasy that the search giant could use its power to peek at their private Internet search histories.
     But Google has promised it will not use its unique position to look into the search histories of jurors or potential jurors.
     If both parties can’t agree to resist scouring the Internet for information on the jurors, Alsup said both sides must explain in detail exactly what information they will look at and disclose that information to the potential jurors before the trial starts.
     Prospective jurors will be given a few minutes to adjust the privacy settings on their social media accounts before the jury selection process begins, Alsup said.
     Alsup cited an opinion issued by the American Bar Association which says attorneys may conduct “passive reviews” of potential jurors’ websites or social media profiles as long as they don’t request access to a juror’s profile, which would constitute an impermissible ex parte communication.
     Sending a juror a “friend request” on Facebook, following a juror on Twitter or connecting with one on LinkedIn would equate to a forbidden form of communication, the judge said.
     In prior court filings, both parties pledged not to take advantage of any coincidental connections to potential jurors on social media sites, which would allow them to glean more information about the individuals than would usually be publicly available.
     Both sides must inform the court by March 31 whether they will consent to a ban on Internet research on jurors, Alsup ruled.
     Oracle sued Google in 2010 for allegedly lifting its copyrighted Java source code and using the programming language in its Android operating system.
     In May 2012, a jury found Google had infringed Oracle’s copyrights but could not decide whether the code in question was “fair use.”
     Alsup later found Oracle’s Java programming interfaces were not eligible to be copyrighted, but the Federal Circuit reversed his ruling in May 2014. The U.S. Supreme Court refused to hear an appeal of the reversal in this past June.
     A new jury is set to decide whether the copyrighted code in question is “fair use” in a second trial expected to begin May 9.

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