Google-Funded Think Tanks Go to Bat for the Internet Giant at Supreme Court

Google is facing a supreme court showdown with Oracle this year over accusations that the Internet giant stole intellectual property from its rival. In the high-stakes case, Google’s funding of think tanks may help it manipulate legal opinion.

A year ago, Google filed a writ of certiorari, asking the Court to consider the appeal in the first place. This petition explains both why the lower court’s opinion was incorrect, and why the case implicates an important and disputed area of law. Due to the high volume of appeals, the Supreme Court only accepts approximately 3 percent of these petitions.

So how did Google get so lucky? The company’s ubiquitous corporate presence, along with the top-notch and costly Supreme Court advocates it hired, undoubtedly helped. But perhaps more importantly, Google’s petition benefited from the company’s close relationship with several non-profit think-tanks. The American Antitrust Institute, Electronic Frontier Foundation (EFF), Engine Advocacy, R St Institute, and Public Knowledge all filed amicus briefs on its behalf, which urged the Court to take the case.

A flock of amici briefs can have a major impact on cert petition outcome. According to one study, the Supreme Court heard 27 percent of cases when multiple parties filed amicus briefs – a material increase compared to a stand-alone or moderately supported petition. And a recent SCOTUSBlog analysis found that EFF was the second most effective non-profit to influence the Supreme Court to take up cases with major financial consequences.

These apparently independent organizations all made the same argument: that allowing Google’s Android, which controls three-fourths of the mobile operating market, to take a smaller competitor’s intellectual property, somehow increases tech competition. Why would multiple think tanks expend their time and resources to make such a questionable case for Google?

The tech giant biannually discloses “third-party organizations and other tax-exempt groups that receive the most substantial contributions from Google’s U.S. Government Affairs and Public Policy team” — over 300 think tanks, trade associations, and advocacy groups. Every single think tank that filed a brief for Google is on this list.

With the exclusion of EFF, none of these groups disclosed the funding in their cert petitions supporting Google’s cause in the Oracle case. Under Supreme Court Rule 37.6, amicus brief filers must indicate “whether counsel or party made a monetary contribution intended to fund the preparation or submission of the brief.”

Amicus filers managed to comply with the court rules without disclosing Google funding, likely because the company did not directly earmark the contribution for the amicus brief. But it’s a safe bet that Google will keep their positions in mind when they make out their next check to these organizations.

Historically, the purpose of an amicus brief is to allow citizens to weigh in on cases whose precedents will impact more than just the parties involved. But we are in the age of astroturfing. There has never been a corporation with the resources of Google, whose tentacles so pervasively penetrate so many corners of America’s public policy apparatus.