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Reports from the Blizzard v. BnetD Hearing
Monday, June 20 2005 @ 06:24 PM EDT

Groklaw received reports from two volunteers who attended the hearing this morning to listen to the oral arguments in the Blizzard v. BnetD case, and here is what they tell us. First, there is a recording available on the court's website at http://www.ca8.uscourts.gov/tmp/043654.html. Just click on Oral Argument, and you can form your own impressions. It's also now available as an MP3. Our first eyewitness, Scott McKellar, shares his:

To me the best sign was that Paul Grewal (pronounced "gray wall") of Day Casebeer kept pounding on the law, while opposing counsel Stephan H. Rovak kept pounding on the table, summoning the dread spectres of piracy (the defendants all had legal copies of the Blizzard game software) and copyright violation (all copyright claims were dismissed with prejudice in the lower court).

By the way, Day Casebeer represented Sun Microsystems in the wars against Microsoft, and if you'd like to read a fascinating account about the patent peace and how it was hammered out, they have an article on their website that I found fascinating. Of course, I'm an addict for this stuff. The talks went on for nine months. And you thought the IBM case was slow.

And now, here are some impressions of today's hearing from AllParadox, a retired attorney.

*********************************

At 10:46 AM, the case of Davidson and Associates, etc. et al. v. Tim Jung, etc., et al. was called for hearing by Division II of the United States Court of Appeals, Eighth Circuit.

The hearing was in the Southeast Courtroom on the 27th floor of the Thomas F. Eagleton courthouse in St. Louis, Missouri.

This reporter is a bit deaf, so the excellent accoustics were much appreciated.

For this hearing, Division II was a three judge panel, consisting of judges Kermit E. Bye, Diana E. Murphy, and Lavenski R. Smith.

Presenting the argument for appellants was Paul Grewal.

Presenting the argument for respondents was Stephen Rovak.

The Thomas F. Eagleton courthouse is new, and still smells of newness: new carpets, new paint, newly oiled and varnished walnut features. The Eighth floor, for example, is still unoccupied and under construction.

There were a large number of attorneys sitting in the audience, listening to the arguments, perhaps a dozen or so. Then there was myself and the other Open Source reporter to round out the party. We compared notes afterward.

I introduced myself to the attorneys for the parties. The attorneys for the appellants all said that they read Groklaw. The attorneys for the respondent seemed not to have heard of it.

Judges Bye and Smith tended to lean forward, and to cup their chins with their hands. Judge Murphy tended to lean back, and bore a faintly exhasperated expression. Her expression was not directed at anyone in particular, it may just be how she approaches the world. All three judges took copious notes. All three of them were scribbling furiously throughout the entire hearing. All three of them were obviously listening very carefully to what was being said.

Mr. Grewal began, because appellants go first. Mr. Rovak made a response, and Mr. Grewal had four minutes for a rebuttal.

For the first part of his argument, Mr. Grewal focused on the overarching question as to whether the U.S. Congress, in enacting U.S.C. 1201 (under its' regulatory powers through the Commerce Clause of the U.S. Constitution) had pre-empted State Court law and legislation relating to contracts of adhesion, specifically shrinkwrap and "clickwrap" licenses.

Judge Murphy wanted to know what was left after Circuit Judge Shaw's rulings and the parties stipulations. She asked if this was merely a theoretical exercise.

Comment: Under the English Common Law, judges do not engage in theoretical exercises. Any case presented that is a theoretical exercise must be dismissed.

Mr. Grewal spoke quickly. Obviously brilliant and well-founded on both the case law and the facts, he still rushed through, as if trying to get as much on the record as possible.

He pointed out that the use made of the programs by the Defendants/Appellants was that directly contemplated by Congress in drafting Section 1201. A careful and effective touch was to point out the citation to the Congressional record to prove that was indeed the intent of Congress.

Judge Smith asked a few questions that seemed to me to indicate that he was not quite sure of the issues. He wanted to know if Grewal was arguing that Federal Law had pre-empted the contracts covered by State Law. Mr. Grewal had said that was the "overarching question", so, of course, he had.

Judge Murphy seemed to be a bit more up on the issues. She wanted to know what Defendants/Appellants product offered that was not in the Plaintiff/Respondent's product. The answer bears on the issue of newness, though in my opinion, it is not dispositive. Judge Smith asked the usual "new" question. Judges ask appellants if they are suggesting that the Court do something new. The correct answer is always "No". Mr. Grewal fielded it quite nicely, responding "No", and stating that this is simply an obvious extension of the "Vault" decision.

Judge Murphy asked about pirated versions and made a comment about the difficulty of dividing out the benefits for the manufacturers. Mr. Grewal's time was up, and it was Mr. Rovak's turn.

Mr. Rovak had obviously had more experience arguing in similar venues. He was much more relaxed, and sure of himself. He spoke more slowly than Mr. Grewal, his sentences were shorter, and he was much easier to understand.

The gist of his presentation was "Piracy, Piracy, Piracy". Through the emphasis in his voice, and the timing of his words, he wanted this court to understand that this was all about stealing. This was about the Defendant/Appellants taking something that did not belong to them. The overall sense of it was that he was trying to scare the judges and paint the Defendants/Appellants as being in the same group as the hackers and scam artists taking over people's machines with viruses and worms. He pointedly observed that Defendants/Appellants had used fifty icons from the Plaintiff/Respondents server application to make their own product.

He spent time going through the elements of U.S.C. 1201 (f) and arguing how Mr. Grewal and appellants had not focused on this, even though Mr. Grewal claimed it was the center of the case. He also countered Mr. Grewal's comments about the "Bowers" case, and suggested that the "Bowers" court was well aware of the relevant issues.

Mr. Rovak also denied that Mr. Grewal was correct when discussing the Congressional history of the DMCA, and that Congress was well aware of these issues when it was drafted.

Judge Murphy asked Mr. Rovak to cite the relevant Congressional Record. The response was classic: he said he didn't have it right now, but was sure that it exists. Points to Mr. Grewal for getting it very right in the first place. Never, never, never say anything you cannot back up on the spot. I do not know how Judge Murphy knew to ask the question. Perhaps it was something in the way that Mr. Rovak held his face, because it did not come through in his voice. Mr. Grewal came back for his second part, four minutes, and although he still spoke very quickly, he completely made up for any deficiencies in his first part.

He pointed out that shrinkwrap and clickwrap issues were not a part of the appeal, because they had been resolved by stipulation at the trial level. Most of Mr. Rovak's arguments about clickwrap/shrinkwrap issues were a waste of very valuable time. Judge Smith asked pointed questions about what BnetD offered that the Petitioner/Respondents did not, and Mr. Grewa said that they were intended to be identical. I felt this response was a little weak.

In law school, you are taught about primacy/recency. When making an argument, the first thing you say, and the last thing you say are the most likely to be remembered.

Mr. Grewal nailed this next point, and it was one of the finest nailings I have ever seen in appellate court. He said that Judge Shaw, the trial judge, had dismissed all the copyright claims with prejudice at the trial level. Mr. Grewal went on a bit about it, pointedly observing that Judge Shaw had heard evidence, that analyzed the evidence, and found absolutely no copyright infringements, and had dismissed all the copyright infringement counts with prejudice. By implication, this was the meat of the case at the trial court level, and the settlement of issues by the parties had just tied up loose ends.

By direct implication, this appeal was not, and never was, about piracy. Nobody infringed anybody's copyrights, and a Federal District Judge had so found, and so ruled.

Federal Appellate judges do not like stealing. They dislike even more being misled about the nature of an argument.


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