Stanford Center for Internet and Society

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.

We have three pending motions before the Court at this time.

First up, is Plaintiffs' Rule 56(f) Motion for discovery (see July 26 entry for links). Today, we filed our reply brief so this one is all qued up for the hearing on August 17 before Magistrate Judge Boyd N. Boland.

Second, we have received the government's Motion for Protective Order Staying Discovery which was filed on Friday, August 6. The Court ordered an expedited briefing and hearing schedule so that this motion will also be heard on August 17 by Judge Boland. It makes sense to hear these motions together, as they both relate to what discovery Plaintiffs will be entitled to and whether the Government's stonewalling tactics will be permitted to proceed. We will file our opposition brief on Monday, August 16.

We received the Government's opposition brief to our Rule 56(f) motion today.

On July 20, we filed a Motion to Amend the complaint to add the Register of Copyrights as a defendant, clarify relief sought, and conform the complaint to the Court's March 2004 order dismissing the CTEA claim (based on Eldred). The Government's opposition, if any, is due on August 10. A copy of the Second Amended Complaint which we have asked for leave to file is here.

In response to the Government's summary judgment motion, we filed a Rule 56(f) motion and affidavit seeking discovery. As our motion states, the Government's summary judgment motion is premature. The Court has already set a discovery schedule, we have served discovery which is due in August, and discovery is necessary for the Court to properly decide any summary judgment motion. A hearing is set for August 17 in Denver, Colorado, before the Hon.

Today the Government filed a Motion for Summary Judgment. (sorry about formatting glitches in the PDF- this is how the Govt. sent it to us in a courtesy e-mail). The Government argues that the Court can decide the case as a matter of law, without the need to hear any testimony or decide any issues of fact. The motion urges the District of Colorado Court to follow the June 10th decision of the Federal District Court for the District of Columbia in Luck's Music Library v.

Thanks to the excellent work of lawyers at Wheeler, Trigg & Kennedy, we’ve now convinced the court of the importance of discovery to demonstrate the actual harms caused by “restored” copyrights. The task before us now is to gather and develop facts about how people used the works affected by copyright restoration before Congress passed the URAA and how they are harmed by the inability to use these works now. To help us collect these stories, we've launched a wiki-style tool. Check out this new site built by Aaron Swartz and please share your story and spread the word to others so they can share theirs.

We've received an Order from the District Court setting a case management conference for May 19, 2004.

On April 1, 2004, Defendant John Ashcroft, in his official capacity as Attorney General, responded to the Plaintiffs' First Amended Complaint in Golan v. Ashcroft. As you recall, the Court denied the AG's motion to dismiss as to three counts, granting it as to one. Here is the Answer .
In an Answer, the defendant merely admits or denies the allegations in the Complaint, paragraph by paragraph, so this isn't very interesting reading unless you have the Amended Complaint in front of you. The government denies having information about all the harms plaintiffs have alleged, and denies that the statute challenged violates the Constitution. Now the case moves into the discovery phase.

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