This is hilarious: http://www.jmri.org/k/docket/289.pdf
(Transcript of Proceedings held on 12-19-08, before Judge Jeffrey White. Court Reporter/Transcriber Katherine Wyatt, Telephone number 925-212-5224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/4/2009. (kpw, COURT STAFF) (Filed on 2/6/2009)) Enjoy Ms. Hall's (Jacobsen's counsel and Judge Jeffrey White's former student at Boalt Hall where White has taught a course in civil trial advocacy) Impeccable Lawyering performance... LOL. Selected quotes: "THE COURT: WELL, LET ME ASK -- BEFORE I GET A RESPONSE, I WANTED TO RAISE WHAT I CALL A "POP QUIZ" QUESTION, WHICH IS NOT ON THE TAKE HOME EXAM. AND I'LL WAIT UNTIL MS. HALL GETS HER WATER. I ACTUALLY HAD THIS QUESTION BEFORE I RECEIVED THE SUPPLEMENTAL AUTHORITY BY THE DEFENDANT, THE DEL MADERA PROPERTIES VERSUS RHODES & GARDNER. AND THE QUESTION IS: IS THERE ANY PREEMPTION ISSUE WITH FINDING THAT THE CAUSE OF ACTION IN COPYRIGHT LAWS THAT EVISCERATES THE BREACH OF CONTRACT CLAIM? IT STRIKES THE COURT THAT GIVEN THE BREADTH OF THE COPYRIGHT STATUTE, GIVEN THE LANGUAGE OF THE FEDERAL CIRCUIT'S OPINION IN THIS CASE, THAT THAT CASE IS RIGHT ON POINT AND PREEMPTS THIS CLAIM. WHY ISN'T THAT NOT TRUE? MS. HALL: I RESPECTFULLY DISAGREE. THE FEDERAL CIRCUIT DECISION STATES THAT A TERM CAN BE BOTH A COVENANT AND A CONDITION. AND THAT'S AT PAGE 1380. THUS, THE ARTISTIC LICENSE IS A BILATERAL IMPLIED PATENT CONTRACT. COPYRIGHT INFRINGEMENT AS A CLAIM OR AS A CAUSE OF ACTION REQUIRES OWNERSHIP AND AN UNAUTHORIZED EXERCISE OF AN EXCLUSIVE RIGHT. IT DOES NOT REQUIRE THE EXCHANGE OF PROMISES. AND IT IS THAT EXCHANGE OF PROMISES THAT IS THAT EXTRA ELEMENT AS DISCUSSED IN DEL MADERA THAT TAKES IT OUT OF PREEMPTION. THE COURT: I GUESS I READ THE SAME DECISION OF THE FEDERAL CIRCUIT THAT YOU DID. AND I JUST -- AND BEFORE I HEAR FROM THE DEFENDANTS I'D LIKE TO KNOW AFTER THAT OPINION -- AND YOU WERE KIND ENOUGH TO CITE THE ORAL ARGUMENT WHERE THE PARTIES SAID: "THIS IS NOT ABOUT DAMAGES. IT'S ONLY ABOUT INJUNCTION. THIS IS A COPYRIGHT CLAIM. IT'S NOT A CONTRACT CLAIM," CAN THE DEFENDANTS BE LIABLE FOR BOTH COPYRIGHT INFRINGEMENT AND CONTRACT DAMAGES ON THE EXACT SAME THEORY? MS. HALL: I BELIEVE SO. AND IF I RECOLLECT CORRECTLY I THINK YOU MAY FIND THAT IN THE NINTH CIRCUIT SUN MICROSYSTEMS VERSUS MICROSOFT CORPORATION. I THINK YOU'LL FIND IT THERE. YES, YOU CAN BOTH COPYRIGHT INFRINGEMENT AND CONTRACT. AND I MIGHT ADD THERE MAY BE SOMETHING IN -- AGAIN, THIS HIGHLIGHTS WHY THIS WOULD BE PREMATURE TO DISMISS. THERE MAY BE SOMETHING THAT WE FIND THAT FOR WHATEVER REASON AND FOR WHATEVER INTERPRETATION IT IS NOT COVERED. I MEAN, EVEN IF YOU DID SAY IT DID PREEMPT. THERE MAY BE SOMETHING THERE THAT WE ARE NOT AWARE OF THAT WOULD NOT BE COPYRIGHT INFRINGEMENT. THE COURT: WELL, FROM A METAPHYSICAL STANDPOINT THERE MAY BE FACTS OUT THERE IN THE WORLD NOBODY IS AWARE OF, OR AS OUR FORMER SECRETARY OF DEFENSE SAID "MAY NOT BE KNOWABLE." WE DON'T KNOW WHAT WE DON'T KNOW, RIGHT? WOULD YOU AGREE WITH THAT? MS. HALL: THAT'S TRUE. BUT I THINK THAT'S THE POINT OF DISCOVERY SO WE CAN GET A BETTER VIEW OF WHAT THE FACTS ARE. IT DOES NO HARM TO DEFEND THIS TO KEEP THIS BREACH OF CONTRACT CLAIM IN. THE COURT: MR. JERGER, IF YOU COULD RESPOND TO ALL OF THOSE POINTS. MR. JERGER: WELL, I THINK THE ISSUE IS ACTUALLY PRETTY SIMPLE, AND I THINK YOU NAILED IT. THE COPYRIGHT LAW COMPLETELY PREEMPTS THE STATE LAW BREACH OF CONTRACT CLAIM BECAUSE THERE'S NO EXTRA RIGHT TO REMEDIES IN THE CONTRACT ACT CLAIM. THEY ARE EQUIVALENT. THERE IS NO EXTRA ELEMENT, AND ALL OF THE DAMAGES, THE RELIEF, THE ELEMENTS WOULD BE PREEMPTED BY THE COPYRIGHT ACT. MS. HALL: AN EXTRA ELEMENT IS PROMISE. THE COURT: WAIT A MINUTE. MR. ZEFF, DO YOU WANT TO ADD ANYTHING? MR. ZEFF: YOUR HONOR, I DON'T THINK ISSUES TWO AND THREE ARE MY DOG IN THE FIGHT, SO I'LL STAY OUT OF THAT. THE COURT: OKAY. SOMETIMES THE DOGS ARE BROUGHT BACK INTO THE FIGHT OR BRING THEMSELVES BACK INTO THE FIGHT. BUT THAT'S FINE. MR. JERGER: INDEED, YOU'RE CORRECT, YOUR HONOR. THAT IS WHY I SUPPLEMENTED THE RECORD WITH THE DEL MADERA CASE TO HIGHLIGHT THAT ISSUE. THE COURT: NOW, HERE'S WHAT CONCERNS ME, MS. HALL. AND I'LL LET YOU REPLY IN A MOMENT. BUT IN READING YOUR BRIEFS YOU HAVE CLEARLY STATED IN YOUR PREVIOUS BRIEFS THAT YOU'RE NOT SEEKING CONTRACT DAMAGES. YOU'RE SEEKING EQUITABLE RELIEF. IN FACT, THAT'S WHAT YOU AND THE AMICI MADE BEFORE THE FEDERAL CIRCUIT. SO ISN'T IT A LITTLE BIT OF A CONTRADICTION TO COME BACK AND SAY: "OH, NO. NO. NO. WE ARE SEEKING CONTRACT DAMAGES AND INJUNCTIVE RELIEF"? MS. HALL: I GUESS HAVING LOOKED AT THIS A LITTLE BIT FURTHER, THE TERMS OR CONDITIONS VIOLATE THE TERMS. THEY ARE COPYRIGHT INFRINGEMENT. THERE IS THE ADDITIONAL ELEMENT OF A PROMISE HERE, AND THAT DOES TAKE IT OUT OF PREEMPTION. THE COURT: WHAT IS THE PROMISE? MS. HALL: THE PROMISE IS THE EXCHANGE OF PROMISES. WE PROMISED TO MAKE THAT SOFTWARE AVAILABLE. THEY PROMISED TO FOLLOW THE TERMS. THE COURT: AND WAIT. STOP. AND THE ARGUMENT THAT WAS EFFECTIVELY MADE BY THE PLAINTIFF BEFORE THE FEDERAL CIRCUIT IS THAT THOSE BREACHES OF PROMISES, IF THEY EXIST, CONSTITUTE COPYRIGHT INFRINGEMENT. MS. HALL: THAT'S TRUE. THE COURT: AND THE COURT AGREED WITH YOU. MS. HALL: THAT'S TRUE. THE COURT: SO ARE YOU ASKING ME TO GO AGAINST THE FEDERAL CIRCUIT'S DECISION? MS. HALL: NO. I'M SAYING THAT YOU WOULD DO BOTH COPYRIGHT INFRINGEMENT AND BREACH OF CONTRACT. THE COURT: ALL RIGHT. LET'S MOVE ON TO QUESTION NUMBER TWO, . . ." ROFL! "THE COURT: ALL RIGHT. LET'S MOVE ON TO QUESTION NUMBER TWO, WHICH HAS TO DO WITH IF THE COURT GAVE THE PLAINTIFF LEAVE TO AMEND, WHAT FACTS DO YOU HAVE OR COULD YOU ALLEGE THAT THE INFRINGING CONDUCT OCCURRED AFTER THE PLAINTIFF'S COPYRIGHT REGISTRATION, AND A CONCOMITANT OF THAT TO PLAINTIFF IS: WHY SHOULDN'T THE PLAINTIFF BE BOUND BY THE ALLEGATIONS IN HIS COMPLAINT REGARDING THE TIMING OF THE ALLEGEDLY INFRINGING ACTIVITIES, WHICH WAS VERY CLEAR? MS. HALL: THIS, TO ME, IS THE REASON WHY A MOTION TO STRIKE DAMAGES IS PREMATURE. THERE ARE TWO POINTS THAT WE WOULD MAKE. AND, ACTUALLY, WE PUT THIS IN OUR SURREPLY. THERE'S DIFFERING KINDS OF INFRINGEMENT. IF THERE IS DIFFERING KINDS OF INFRINGEMENT, THEN DEREK ANDREW VERSUS PROOF APPAREL IMPLIES THAT THE DATE THAT IT COMMENCED WOULD START A NEW ROUND OF INFRINGEMENT SO THAT YOU WOULD HAVE A COMMENCEMENT AFTER REGISTRATION. THE OTHER IS THERE'S INFRINGEMENT OF SEPARATE WORKS WHICH HAVE INDEPENDENT ECONOMIC VALUE AND ARE VIABLE. AND SOFTWARE VERSIONS WHICH THEY DON'T EVEN DESCRIBE IN THEIRS ARE OFTEN SEPARATE WORKS WHEN THERE IS A SIGNIFICANT DIFFERENCE BETWEEN VERSIONS. 4 AND I WOULD POINT THE COURT TO THE MICROSOFT CASES. THERE ARE SIGNIFICANT -- YOU'LL SEE THIS ONCE WE GET INTO DISCOVERY AND ONCE THE FACTS START TO SHAKE OUT -- THERE ARE SIGNIFICANT DIFFERENCES BETWEEN JMRI VERSIONS. SOME OF THOSE WERE REGISTERED WITHIN THREE MONTHS OF PUBLICATION. WE ARE ALLEGING THAT THEY INFRINGED SOME OF THOSE, AND THEREFORE STATUTORY DAMAGES ARE AVAILABLE. THE COURT: ALL RIGHT. COUNSEL? MR. JERGER: WE ADDRESSED THE ISSUE OF SEPARATE WORKS IN OUR BRIEFING. AND THE PRIMARY CASE THERE IS THE WALT DISNEY CASE, AND WE WILL REST ON THAT. THE ISSUE -- AND WHEN YOU READ THAT I THINK IT BECOMES CLEAR THAT THE INFRINGEMENT -- ALLEGED INFRINGEMENT COMMENCED BEFORE THE FIRST REGISTRATION. THEN, THE ISSUE BECOMES MS. HALL -- IS PLAINTIFF BOUND BY THE FACTS IN THEIR COMPLAINT AND IN THEIR DECLARATION? FOR EXAMPLE, A VERY RECENTLY-FILED DECLARATION, DOCUMENT NUMBER 266, PARAGRAPH 10, BY MR. JACOBSEN SAYS: "HE -- "HE" REFERRING TO KATZER -- COPIED JMRI CONTENT IN JUNE, 2005." I THINK THE CASE LAW IS PRETTY CLEAR -- AND WE CITE SOME CASES IN OUR BRIEFS -- THAT THESE FACTUAL ALLEGATIONS IN DECLARATIONS AND IN THE COMPLAINT ARE JUDICIAL ADMISSIONS, AND THEY ARE ABSOLUTELY BOUND BY THOSE. AND THIS HIGHLIGHTS A BIGGER PROBLEM, WHICH I JUST REALLY WANT TO TOUCH ON, WHICH IS THE FACT THAT THIS LITIGATION IS NEVER GOING TO NARROW IN SCOPE IF WE CAN'T EVEN AGREE ON SOMETHING AS SIMPLE AS THIS WHERE THEY ARE ALLEGING IT, AND THEN TRYING TO PULL IT BACK. THE COURT: WELL, I DON'T WANT TO HEAR THAT. YOU MAKE THAT ALLEGATION. THERE MAY BE LEGAL CONSEQUENCES TO THAT. THAT'S WHY I ASKED THE QUESTION. AND AS FAR AS THESE OTHER POLICY REASONS WHY COURTS MAY HAVE COME UP WITH THE RULE OF JUDICIAL EQUITABLE ESTOPPEL AND ADMISSIONS, THAT MAY BE THE REASON. I'M NOT SAYING IT IS. BUT I DON'T NEED TO HEAR THE POLICY REASONS. I'VE CITED THE RULE, AND I'VE ASKED PLAINTIFF'S COUNSEL HOW PLAINTIFF AVOIDS THE RULE HAVING MADE THESE ADMISSIONS ON MULTIPLE OCCASIONS. YOU'VE GIVEN ME THE RESPONSE. WHAT'S YOUR REPLY? MS. HALL: A BARE ALLEGATION IS NOT AN ADMISSION. IN THE CASE THAT THEY CITED -- THE COURT: PARDON ME? AN ALLEGATION IN A SWORN DECLARATION BY YOUR CLIENT IS NOT AN ADMISSION? WHAT AUTHORITY DO YOU HAVE FOR THAT? MS. HALL: THEY ARE THE ONES WHO KNOW WHEN THEY INFRINGED. WE DON'T. THE COURT: BUT YOU MADE -- YOUR CLIENT MADE AN ALLEGATION. ARE YOU SAYING -- MS. HALL: WE'RE MAKING THE BEST BELIEF. THE COURT: WAIT. ARE YOU MOVING TO STRIKE YOUR OWN CLIENT'S DECLARATION? MS. HALL: NO. THE COURT: ALL RIGHT. I'LL LOOK AT THAT. I DON'T NEED ANY MORE ON THAT. THAT'S PRETTY CLEAR TO THE COURT. MS. HALL: OKAY." ROFL! Read the whole transcript. It's full of Ms. Hall's Impeccable Lawyering. regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
