Win, Win

At yesterday's hour-long hearing on Plaintiffs Rule 56(f) motion for discovery and the government's motion for a protective order to stay discovery, the Court agreed with Plaintiffs' position on both motions.

Motion for Discovery
Judge Boland ruled that facts precluding summary judgment could not be presented by Plaintiffs without discovery, and that additional time would permit Plaintiffs to develop those facts. The Court ordered discovery to proceed on all issues in the case.

This ruling is a victory for Plaintiffs as we will now have the opportunity to develop the factual information challenging the government's allegation that a 200-year "tradition" or "practice" exists in this country of "restoring" copryight in works that had entered the public domain. We believe the evidence will convincingly contradict the government's argument and the Court will in turn deny the government's summary judgment motion. Moreover, factual evidence supporting Plaintiffs' first amendment and due process clause claims is also subject to full discovery. We believe evidence showing the substantial and unnecessary burdens on speech and the unconstitutional retroactive effect of the URAA will convince the Court to reject the government's motion.

Importantly, Judge Boland's ruling acknowledges two things. First, it acknowledges that events in history are, indeed, facts that can be controverted and, if controverted, may (and, we believe, will) preclude summary judgment. The government's attempt to cast this analysis merely as an analysis of legislative history (e.g., the congressional record) was rejected. Second, the ruling acknowledges that, on summary judgment, the Court must consider facts that undercut the purported histororical "tradition" that the government presents.

While the Court set no limits on the scope of discovery going forward, it did order that Plaintiff's oppose the summary judgment motion within 75 days (in other words, by November 1, 2004). Our work is certainly cut out for the next few months!

Motion for Stay of Discovery
Given the Court's decision on the 56(f) Motion, it is not surprising that Judge Boland also agreed with Plaintiffs' argument for denying the government's motion for a protective order to stay all discovery. Noting that this case is already an "old case" (it was filed in 2001 but stayed during the Eldred appeal to the Supreme Court) and that a trial is set for June 2005, Judge Boland wisely chose not to risk delaying the trial by staying all discovery. Here, the Court found that there is no "extraordinary" need for the broad relief sought by the government. Judge Boland further ordered that the government respond to the outstanding interrogatories and document requests within 30 days (i.e. by September 16, 2004). Despite the government's numerous attempts to stonewall discovery, it has now been ordered to proceed.

Lastly, and certainly not least, acknowledgements are due for the great work of everyone on our legal team in obtaining this victory. We could not have reached this result without the dedication and teamwork of Ed Lee of Ohio State's Moritz College of Law who has been involved in this case since its inception, Hugh Gottschalk and Caroly Fairless of Wheeler Trigg & Kennedy (our fantastic local counsel), Joe Gratz, our CIS summer intern, and Elizabeth Rader, our non-resident CIS fellow, who actively managed this case prior to my recent arrival to CIS and whose continued involvement is greatly appreciated. Thanks all for your counsel, research, and articulate advice.