20 FALL 2005 FIELD GENERALS and the European Commission withdrew its opposition, PeopleSoft’s shareholders overwhelmingly agreed to tender their shares, and the acquistion was completed in January 2005, a year and a half after it had been launched. “Managing this process, from a legal perspective, was really fascinating,” said Cooperman, “because there was so much more going on than just the corporate aspects of the transaction.” Cooperman, who came to Oracle from McCutchen, Doyle, Brown & Enersen (now Bingham McCutchen LLP), commands a 175-person legal department, including 130 lawyers, a little more than half of whom are in the United States. During the battle for PeopleSoft, he deployed more than 100 lawyers from outside firms. “The PeopleSoft transaction required very comprehensive coordination among our legal team,” he explained. “In addition to the challenges of the tender offer and the antitrust approval process, we faced active litigation on corporate, commercial, and regulatory issues.” At the Vanguard of New Law Navigating antitrust attacks while staying at the top of an industry is no mean feat, but neither is navigating the often-lawless wilds of the Internet. “What we’re doing is brand-new,” said Michael Jacobson, general counsel at eBay. “These are situations where law is unsettled—no one has a clue as to how it’s going to apply. What you do know is that, in all probability, it’s going to be a lawsuit involving you that will establish the law.” Jacobson has seen more than his share of unprecedented legal situations, and prefers to preempt precedent-setting cases whenever possible. Jacobson lays claim to the distinction of heading up a legal department that includes the country’s foremost experts in an extremely obscure field: mastodon law. When an eBay auctioneer wanted to put up a mastodon tusk, Jacobson’s team had to figure out whether the sale of the prehistoric prong would violate an international ban on the ivory trade. Another time, someone in Siberia listed a section of mastodon pelt, and Jacobson dispatched the company’s resident expert to pore through tomes of trade law to determine if regulations governing international fur trade applied to mastodon fur. In each case, eBay allowed the auction to proceed. On a more mundane note, eBay increasingly finds itself in the middle of cases involving virtual or software-based entities and items, another area with little or no legal precedent. Over the last few years, gaming-software companies have repeatedly objected to the sale of virtual characters and items that gamers put up for auction on eBay. “We have spent an awful lot of time doing things that were not legally required, so that once we’re in front of the trier of record we can say, ‘Wherever you’re going to draw the line, we’re on the right side of it,’” said Jacobson, “rather than approaching things in a more traditional way, saying, ‘We know where the line is, let’s talk to the business people about how close we can get to it.’” “One of the most challenging parts of my job is navigating the legal regimes of all the countries of the world, some of which are not particularly well developed.” —David Drummond, Google Over at Google, general counsel David Drummond often finds himself charting legal precedent as well. He has his hands full with a controversy over the Google Print Library Project, which entails scanning and digitizing the collections of some of the world’s foremost libraries, including those of Oxford, Harvard, and <strong>Stanford</strong> universities. Several publishing-industry groups have objected to Google’s plan to scan copyrighted works. And the Authors Guild, together with three individual authors, have filed suit against Google claiming copyright infringement. It’s the first situation of its kind, so it’s unclear whether copyright law precludes scanning and indexing works owned by libraries. In August, Drummond and Google decided to postpone the scanning of library books currently covered by copyright, giving rights-holders an opportunity to provide Google with a list of works that should be excluded. Google intends to resume scanning any copyrighted works not specifically excluded by their copyright owners. Intellectual Property: The Crown Jewels Companies like Google may on occasion find themselves fighting against copyright restrictions, but most of the time these high-tech general counsels are busy drawing a legal line of ownership around intangible assets like software code and engineering designs. That’s because patents and copyright are the bedrock on which technology businesses are built. “Technology companies are intellectual property companies—those are their assets,” said Neukom. “It’s not like owning a quarry of scarce minerals or shelf space. It’s about
FIELD GENERALS 21 STANFORD LAWYER Michael Jacobson ’80 Senior Vice President and General Counsel, eBay John Place ’85 Former Vice President, General Counsel, and Secretary, Yahoo!