Opinion

The Great Debate

Apple and Samsung’s cone of silence

By Nancy Scola
October 17, 2012

Apple and Samsung, you might have heard, have spent the last many months in a California courtroom haggling over who violated whose patents. At the end of August, Apple was awarded more than a billion dollars in damages by a jury, and the Samsung is now claiming jury misconduct. Just last week a U.S. appeals court threw out the judge’s ban on Samsung’s Galaxy Nexus phone. The whole situation is, really, turning into a bit of a confusing mess.

Also messy: a lesser-known but hugely important struggle among Samsung, Apple, and those members of the press trying to write about the court battle. While otherwise adversaries, the two companies have joined forces to keep some of the evidence in the case off the public record. But how much secrecy in the Apple v. Samsung proceedings is too much for the public to tolerate? It’s a meta legal question, and one that might not have the same billions directly at stake as the main event. But the outcome of the dispute about the transparency of our courts is central to understanding the future of these big tech trials. And there will likely be plenty more of those.

The question at stake is whether the tech firms will be allowed to tie up the courts with their business disputes while engineering it so they don’t face the full scrutiny of a truly public trial.

Apple and Samsung have again and again asked the court to keep the financial documents they’ve filed during the trial off the public record. Searches for the trial’s documents on PACER.gov, the federal courts’ online public access system, often return this message: “This document is currently Under Seal and not available to the general public.” The concern here isn’t about paperwork. The resulting gaps in the record mean that the rest of us are seeing a fraction of the picture to which Apple, Samsung, and the lawyers, judge and jury on the case are privy.

Two themes are at work. First, U.S. courts are being asked to litigate the technology industry’s “patent wars.” Second, companies are asking judges to handle the cases in a hush-hush manner. Some judges are pushing back. In the Oracle v. Google case that, like Apple v. Samsung, took place in the U.S. District Court for the Northern District of California, last summer, Judge William Alsup gave a bit of a whipping to the participants. “This is a public proceeding,” railed the judge. “You lawyers and companies are not going to handcuff the court,” adding for extra clarity that his courtroom “is not a wholly owned subsidiary of Oracle Corp.”

In July, Reuters objected to the repeated sealing of documents in the Apple-Samsung case. It led the effort to persuade Judge Lucy Koh to unseal the records but later dropped out, leaving the First Amendment Coalition to advocate during the appeals process. (That’s the extent of my disclosure—as a humble contributor to Reuters Opinion, I don’t have any insight into those deliberations.)

Judge Koh decided that indeed things had gone too far, citing the court’s established “strong presumption in favor of access.” Not everything was pushed into the public eye under Koh’s order. She thought it reasonable that things like proprietary source code, product schematics, production capacity information, licensing agreements with third parties, and raw market research data stay private. But many of the companies’ other filings were unsealed. The judge’s reasoning? That the details of things like market research reports on its customers’ buying and usage habits were central to understanding Apple’s argument that it was terribly damaged by Samsung’s alleged copying.

“For this trial in particular,” Koh wrote in an opinion, “which involves claims of up to $2.5 billion in damages, this data is extremely important to the public’s understanding of the eventual outcome, which has the potential for wide-ranging ripple effects.”

That’s the key in this case, and it explains why the push for more open courts goes far beyond voyeurism. Cases like this matter to the public. Here, the defendant and the plaintiff together control a giant slice of the mobile phone market. And as we know, iPhones, Samsung Galaxys and other mobile devices are often how people go online today. The ultimate outcome of Apple v. Samsung will have a tangible effect on millions of people. This is what the press is paid to cover, and what it does when it’s at its best: devote the time and resources to figuring out what’s happening up in the stratosphere where giants wage their battles, and then explain it in a way that lessens the gap between the elite and the rest of us. Journalism like that is what the public says it wants. Journalism like that requires access to source materials.

Apple and Samsung are appealing Koh’s unsealing ruling in the U.S. Court of Appeals for the Federal Circuit. In the meantime the relevant documents remain under wraps. The question now is where that court will draw the line on what the tech giants are allowed to keep private in a high-profile public trial.

You can debate the wisdom of these big patent trials. (Steve Wozniak, Steve Jobs’ co-founder in Apple, said of the trial, “I hate it.”) Regardless, they’re happening, all over the world, involving not just Apple and Samsung but companies like Google, HTC, and Oracle. Their complexities are such that the weeks after the August verdict in the Apple v. Samsung case have been spent trying to figure out whether the chicken scratch on the jury’s verdict form adds up to $1,051,855,000 or $1,049,343,540 or $1,049,423,540. Or trying to divine what the jury foreman really means when he says this or that in interviews. It might be natural for the companies to push for secrecy, but it’s also natural for the public to push back on whether they really, truly need it or are unnecessarily leaving the public in the dark.

There’s a growing sense that the patent system in the United States is seriously out of whack. Either that’s the case or the public is wrong in thinking it so. Neither situation is particularly healthy for our economy (or our democracy, for that matter). We’ll have a better chance figuring out which it is, and fixing it, if we can fully see what’s happening.

PHOTO: A passerby photographs an Apple store logo with his Samsung Galaxy phone on the morning iPhone 5 goes on sale to the public in central Sydney September 21, 2012.  REUTERS/Tim Wimborne

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