knowledge & insights

Part II: From Mars v. Oracle to ‘Techlash’ & from Trump to TikTok: What is Oracle Up to and What Does It Mean for Its Licensees?

In Part I of our 3-part series, we outlined certain aspects of how Oracle has been strategic in its political dealings over the last few years up to its involvement in the free-for-all that followed the Trump Administration’s unprecedented—and very confusing—TikTok ban. In doing so, we traced Oracle’s path from unpopular-but-low-profile-software-vendor to its belated attempt to compete in the cloud space through licensee coercion to its public attacks on its adversaries and its accompanying support of right-wing tech coalitions.

In Part II, we attempt to set the stage with regards to Oracle’s involvement in the TikTok saga by first discussing the details surrounding Oracle’s association with the current administration. Part III, coming later this week, will delve into the possible reasons why Oracle is pursuing a teen-focused social media app with data security problems and, lastly, what this might mean for the hapless Oracle software licensee.

Part II

Oracle Ingratiates Itself with the Trump Administration White House.

As we closed Part I, Oracle was fanning the flames of ‘Techlash’ while supporting—covertly or otherwise—right-wing tech coalitions that targeted Oracle’s adversaries. The remaining pillar of Oracle’s broad approach to exploiting and evading the rising unpopularity of Big Tech was simply to align with the current administration:

Oracle has successfully ingratiated itself with the White House in the Trump era, maintaining intimate access to the President and his associates even amid a broader “techlash” against top tech firms including Google and Facebook. Oracle CEO Safra Catz, for instance, was a member of Trump’s transition team in 2016.

Despite the fact that the alignment of tech companies and political administrations is nothing new (some allege that Google developed a “remarkably close” relationship with former President Barack Obama), the overt impact of Oracle’s association with the current administration is devoid of any vestiges of subtlety. While there are numerous examples of the uncomfortable collaboration between Oracle and the White House, for exemplary purposes, we briefly address the current administration’s position on the seismic Google v. Oracle matter as well as the very recent Covid-19 response.

The Trump Administration Predictably Supports Oracle in the Google v. Oracle Matter.

The details of the high-stakes and hard-fought war between Oracle and Google—based on Oracle’s claim that Google’s Android operating system infringes its Java copyright—are far too voluminous to get into here. Suffice to say that many credibly believe it to be the most important copyright suit of the decade if not the century. After years of bouncing up and down through the courts (with Google winning at the trial court level only to be overturned by the Federal circuit three times), by the time the matter got to the Supreme Court in 2019, Oracle had been working on aligning itself with the Trump Administration for years.

In April 2019, when the Supreme Court asked the Solicitor General to file an amicus brief to outline the government’s position on Google’s appeal to the Supreme Court, it was no surprise that the Trump Administration filed a brief urging the court to not even consider this matter of colossal importance and to deny cert for Google’s appeal. After the Supreme Court granted cert despite the request from the current administration, on February 19, 2020, the Trump Administration filed an amicus brief urging the Supreme Court to reject Google’s appeal and allow the Federal Circuit’s opinion in favor of Oracle to stand.

Where was Oracle? Earlier that very same day, Larry Ellison hosted a high-dollar fundraiser for President Donald Trump at his Hawai’ian Rancho Mirage. (Of note: news of this event prompted about 300 Oracle employees to stage a protest the next day.) After the Oracle argument was postponed from the Supreme Court’s 2019-2020 calendar, oral arguments were held on October 7, 2020.  While predicting how the Supreme Court will rule is an imperfect art at best, many (if not most) commentators believe the questioning indicated a court that will most likely rule in favor or Oracle. (See, e.g., The New York Times commentary that noted “on balance, Mr. Goldstein, Google’s lawyer, faced more hostile questions than did his adversaries in the case.”)

Amid the Covid-19 Crisis, The Trump White House Prioritizes Bringing in Oracle.

According to some insiders, during the few weeks immediately following the surge of Covid-19 cases in the U.S., befuddled members of Trump’s team did little more than feebly advocate for Oracle’s involvement:

“Right now, Fauci is trying to roll out the most ambitious clinical trial ever implemented” to speed the development of a vaccine, a former senior administration official, who talks frequently to former colleagues, told the Post. Yet the top health officials “are getting calls from the White House or Jared’s team asking, ‘Wouldn’t it be nice to do this with Oracle?’”

Ultimately, the White House succeeded in setting Oracle up with a prominent role. In late March, it was announced that the White House was preparing to use software provided by Oracle to promote unproven Covid-19 treatments, including the pair of malaria drugs notoriously advocated by President Trump. This approach was not without concern from the medical community—senior health officials and public health experts expressed concern that the program would “amount to a sprawling, crowdsourced clinical trial without the usual controls of the FDA.”

The roots of this Trump/Oracle partnership appear to run deep, including strong indicators that the anti-malarial drugs dubiously touted by Trump can themselves be traced back into Oracle’s ambit. The New York Times reported that the Oracle database project—including the promotion of the unproven drugs—was heavily influenced by Dr. David B. Agus, a professor of medicine and engineering at the University of Southern California. Dr. Agus “has boasted to senior administration officials that he has talked about the benefits of the drugs with Mr. Trump, who has publicly counseled that medical efforts not be wedded to traditional drug trials.”

Triangulating this peculiar relationship, Dr. Agus himself is deeply obliged to Oracle. In May of 2016, Larry Ellison donated $200 million to establish the Lawrence J. Ellison Institute for Transformative Medicine of USC, a new center in Los Angeles that purports to combine interdisciplinary research with the holistic prevention and treatment of cancer. David B. Agus, professor at the Keck School of Medicine of USC and the USC Viterbi School of Engineering, was tapped to lead the institute.

In an April 1, 2020, article that followed an interview with Larry Ellison, Forbes discussed some of the aspects of the Trump/Ellison partnership. The sequence of events suggests that Oracle was very much on Trump’s mind after Ellison hosted the fundraiser at his Rancho Mirage compound in February. According to Forbes, shortly after the Covid-19 crisis emerged, “Ellison and Trump were on the phone” though “[n]either side will say who initiated the conversation.” Without any apparent irony, Forbes quoted a fawning statement by Dr. Agus side by side with a reference to the Ellison Institute and President Trump:

 “Larry said, ‘I will build you a system so doctors and patients can enter information, so we can know what’s happening,’” says David Agus, a cancer doctor who leads the Lawrence J. Ellison Institute for Transformative Medicine at the University of Southern California and is cofounder of Sensei. “The president said, ‘How much?’ And Larry said, ‘For free.’”

An article in STAT from earlier this summer reports that the database is “up and running” and further commented on Larry Ellison’s current influence on public policy:

Larry Ellison, the tech billionaire and co-founder of Oracle, has been steering the database, known as the Therapeutic Learning System. Ellison — who doesn’t have a medical background, but has become one of the nation’s leading funders of cancer research — is among the circle of elites that have had a role in shaping the Trump administration’s coronavirus strategy.

Oracle’s direct involvement with Trump’s inner administration, at times at odds with the efforts of the FDA to search for a cure, was seen by some as unsettling:

During the first weeks of the pandemic, when the FDA was struggling to approve coronavirus tests, agency officials got an unusual request. The White House wanted them to talk to Oracle CEO and top Trump donor Larry Ellison about an application the company was building to track hydroxychloroquine use outside of clinical trials, which it wanted to donate to the government. The request came as the president began championing the unproven coronavirus treatment on the press briefing stage.

Even worse, senior health officials reported that while participating in ‘near-daily talks’ with various administration and FDA officials, Ellison’s meetings were ‘siphoning resources away from other potential therapies and rising issues for the FDA’. And interestingly enough, while the Oracle application was donated to the Department of Health and Human Services, the FDA does not have access to it. Three different health officials claimed uncertainty regarding whether any government employees were even using the Oracle database.

As reported by CRN:

Ellison’s coronavirus credentials have also been called into question by a New York Times story published in April reporting he was among the first to raise President Donald Trump’s hopes that the antimalarial drug hydroxychloroquine could be an effective treatment.

Oracle’s unprecedented involvement in producing a database with questionable usefulness—especially when compared to the already-existing FDA databases that track drug safety based on clinical trials—begs the question. “Why??”

In Part III, coming in just a few days, we will attempt to answer this question as we explore Oracle’s lagging involvement in the Cloud wars and get into the nitty-gritty details around Oracle’s involvement surrounding the TikTok ban.

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