Facilitator: Judge Ronald Whyte, Senior United StatesDistrict Judge, Northern District of California
Judge A. Howard Matz, Senior United States District Judge,Central District of California
What lawyers should do to make disputes more meaningful tothe judge. The process of achieving anappellate decision is radically different from the trial level. Not just the benefit of 3 minds; the recordis frozen; no preliminary injunctions/other matters making the trial judge’sjob challenging. On any given day he wasworking on a copyright case, it’s highly likely that at some point that day hewas also imposing a sentence in a criminal case or doing other criminalproceedings; dealing with a copyright case in a quick manner fairly andimpartially when the stakes/status of the litigants is so different—David andGoliath; we get a lot of subpoenas when the user turns out to be a teenagerseeking music noncommercially. We have a flood in the Central District who aren’trepresented by lawyers. Not new to havepro se plaintiffs, but new to have pro se defendants, due in part to collapseof housing market and removal of eviction proceedings to federal court but alsodue in part to IP. Some firms are goingafter little people; judge has obligation to look for the merits, but it’s notcomfortable.
All of this is going on while you’re dealing with theniceties/complexities of the DMCA. Very often the judge who has to address yourdispute is doing so without much guidance from above in the way of precedent. Good idea to ask the judge what they’d like youto focus on. Is it new technology? Is it implications for broader economicconsiderations? Is it the words of the law? Can be hard to prepare, but if it works, it will really help you helpthe client and the judge.
Told story of a case in which the defendant was allegedlyusing stolen source code. Was baffled; in that case, he did something rarelydone but potentially terrifically helpful: appointed his own expert after ahurried procedure inviting both sides to recommend people for his considerationto teach him some basics about the source code. The experts were veryaccomplished—academics from established universities. Did try to at least havemore than a working familiarity with the basics/fundamentals, sitting side byside with a UC-Irvine professor. We did that over weekends. Process of deciding who should pick shouldinvolve lawyers. We kept a record of our communications, maintaining thosenotes and allowed lawyers to request production though they didn’t. Learnedenough to preside over the case. At the end, he asked the expert for his view(sealed) and he looked in the sealed envelope after making his decision—he endedup disagreeing with the expert.
Variants are available to judges—can have not a technicaladviser for the court with the right to communicate off the record orcourt-appointed experts testifying in court. More common in patent cases.
Kramer: you presided over Perfect 10 and UMG; did you knowtheir significance?
J. Matz: knew it would go up; it’s rare for a district courtto create a precedent without appellate review. Very often judges make decisions that need to be made, even though they’renot comfortable making them—sometimes they think that if they’re wrong, thecourt of appeals will reverse them; sometimes they just have to act. It’s notcomfortable to issue a ruling no matter how hard you’ve worked when you know thatyou don’t know the full record the way you would’ve known it if you were alawyer on one side. Must make choicesabout how to spend time.
Tyler Ochoa: Frequent 512 issue is what “knowledge” means.
J. Whyte: I didn’t think knowledge was a big issue in Netcom. “Knowledge” was used without having to resolve exactly where theknowledge was; tough question.
J. Matz: can arise in terms of the adequacy of takedownnotices. Has been frustrated in a casewith more than 30,000 works were the subject of an infringement claim, and manyworks infringed many times; issues of TM too. Issues with adequacy of notice aswell as adequacy of assignments/ownership claims. How do lawyers get their arms around suchsprawling facts? Knowledge is a spectrum.
Monahan: start with common sense. A general claim that there’sa bunch of infringing stuff on your site—if that’s sufficient, the DMCA isworthless. If someone can send a letter saying “take this item down and allfuture items of this sort” and have that be effective, that could also shiftthe monitoring burden to eBay. Very hardfor eBay to have actual notice outside of DMCA—it would always be red flagknowledge unless an eBay employee knew the guy who was posting the illegitimatestuff.
Whyte: what if it’s something that’s often counterfeited?
Monahan: unofficially, yes, we went as far as we could withproactive, voluntary searching to figure out non-brand-specific terms forcounterfeiting—slang terms that we learned over time were indicia of piracy,e.g., “silver discs” in music (? This might be slang I misunderstood). But atthe end of the day, if there’s no indicia on the face of it we have the rightsowner make the call. We apply the same approach with TM; worked so well incopyright that we did it in TM too. Have reached out to some owners for helpwith indicia.
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