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.”