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Journalists Allowed to Argue at March 26 Hearing On Behalf of the Public's Right to Know in Apple, Samsung Appeal ~pj Update
Wednesday, March 20 2013 @ 01:32 AM EDT

Abraham Lincoln advised lawyers that the best thing they could do for a client was to keep him out of litigation. Steve Jobs should have listened to that excellent advice, from one genius to another, so to speak. But he didn't, and he decided to start thermonuclear war to try to destroy Android, using litigation as the weapon of choice.

After Steve Jobs died, I read an article that quoted his widow as saying something to the effect that just because someone is a genius in one area, it didn't mean he was a genius in all areas. I found that a charmingly honest statement that all wives for sure would understand, with all its overtones and undertones reverberating in the air. One thing that watching Jobs' plan to destroy Android play out in courtrooms has made obvious: he was not a genius at the law. Unquestionably, the Apple brand has been damaged by the litigation against Samsung.

And it may be about to get worse. Here's what is threatening to happen next: The parties were in agreement that the district court was unsealing too many company secrets and both are appealing to the Federal Circuit to keep things sealed. They agreed that they don't want to stand naked before the world, with all their trade secrets exposed. Unfortunately for them, they happened to draw two judges who believe litigants have to endure more of a spotlight than they might enjoy if they choose to litigate, because the public has rights too. Who knew that would happen? Clearly not Apple, a company that is known for its secretiveness. And the appeals court has just ruled that an eager band of journalists will be allowed to argue against sealing of the parties' relevant documents at the upcoming oral argument on the point on March 26.

Dow Jones & Company, Inc., The First Amendment Coalition, The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists will appear at oral argument, and a lawyer from The Reporters Committee for Freedom of the Press, Gregg R. Leslie, a staff attorney and legal defense director there, will share its allotted time with the attorney from the First Amendment Coalition. Together, they will argue that the parties are asking that too much be sealed in the Apple v. Samsung case, the first one, that the district court should be upheld, because the public has a right to know what is going on.

After that decision to let them appear and argue was announced, Apple filed a letter with the court saying it wishes to narrow how much it wishes to keep sealed. It doesn't want anything that was said at trial to be sealed, and it notes that some things on the list it had provided earlier are regarding matters that it isn't appealing, and so it provides a list of items to delete from the list.

One can't help but wonder if there is a connection between the journalists being allowed to argue and now the redactions from the list.

Here's what the court has now ordered [PDF]:

ORDER

Amici curiae the First Amendment Coalition and the Reporters Committee for Freedom of the Press et al. renew their joint motion for leave to participate in oral argument and request expedited consideration of their motion. Upon consideration thereof, IT IS ORDERED THAT:
(1) The court grants the request by amici curiae for expedited consideration of their renewed motion for leave to participate in oral argument.

(2) The court grants the renewed motion for leave to participate in oral argument, allotting amici curiae fifteen minutes to be shared as they deem appropriate, without reducing either party’s allotment.

(3) The court denies as moot the original motion for leave to participate in oral argument.

Here are all the recent filings:
03/13/2013 - 95 - MOTION of Amici Curiae American Society of News Editors, Bloomberg L.P., Dow Jones & Company, Inc., The First Amendment Coalition, Gannett Co., Inc., The New York Times Company, The Reporters Committee for Freedom of the Press, Society of Professional Journalists and The Washington Post to allow argument. Response/Opposition is due 03/28/2013, to expedite the decision/ruling in. Response/Opposition is due 03/28/2013 [Consent: opposed]. Service: 03/13/2013 by email, US mail. [58478]

03/14/2013 - 96 - RESPONSE of Cross-Appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC to the motion to allow argument [95] filed by Amici Curiae Dow Jones & Company, Inc., The First Amendment Coalition, The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists in 12-1600 , motion to expedite decision/ruling [95] filed by Amici Curiae Dow Jones & Company, Inc., The First Amendment Coalition, The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists in 12-1600. Service: 03/14/2013 by email. [58724]

03/14/2013 - 97 - ORDER granting motion to allow argument [95] filed by Amici Curiae Dow Jones & Company, Inc., The First Amendment Coalition, The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists; granting motion to expedite decision/ruling [95] filed by Amici Curiae Dow Jones & Company, Inc., The First Amendment Coalition, The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists; denying as moot motion to allow argument [74] filed by Amici Curiae Dow Jones & Company, Inc., The First Amendment Coalition, The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists. 15 minutes are allotted to amici curiae to be shared as they deem appropriate, without reducing either party's allotment.. Service: 03/14/2013 by clerk. [58844]

03/15/2013 - 98 - Response to oral argument order from the Amici Curiae American Society of News Editors, Bloomberg L.P., Dow Jones & Company, Inc., The First Amendment Coalition, Gannett Co., Inc., The New York Times Company, The Reporters Committee for Freedom of the Press, Society of Professional Journalists and The Washington Post designating Eric S. Parnes as arguing attorney. Service: 03/15/2013 by email, US mail. [59219]

03/18/2013 - 99 Letter from Appellant Apple Inc. Clarifying Which Materials from the District Court Record Apple Seeks to Seal. Service: 03/18/2013 by clerk. [59660]

03/19/2013 - 100 - MOTION of Amici Curiae American Society of News Editors, Bloomberg L.P., Dow Jones & Company, Inc., Gannett Co., Inc., The New York Times Company, The Reporters Committee for Freedom of the Press, Society of Professional Journalists and The Washington Post to file Entry of Appearance of Gregg P. Leslie. Response/Opposition is due 04/01/2013 [Consent: unopposed]. Service: 03/19/2013 by email. [60074]

03/20/2013 - 101 - ORDER granting motion to file Entry of Appearance of new counsel [100] filed by Amici Curiae Dow Jones & Company, Inc., The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists. Service: 03/20/2013 by clerk. [60166]

03/20/2013 - 102 - Entry of appearance for Gregg P. Leslie as of counsel for Amici Curiae American Society of News Editors, Bloomberg L.P., Dow Jones & Company, Inc., Gannett Co., Inc., The New York Times Company, The Reporters Committee for Freedom of the Press, Society of Professional Journalists and The Washington Post. Service: 03/20/2013 by email, US mail. [60194]

Update: Samsung has now also filed a letter clarifying what it seeks to seal:
03/21/2013 - 103 - Letter from Cross-Appellants Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC Clarification of which materials Samsung seeks to seal in its cross-appeal.. Service: 03/21/2013 by email. [60627]
- End Update.]

The secrecy that shrouded Apple did create a kind of magic. But once we got to look behind the curtain, we can't forget what we saw. Some of the magic dissipated into the air, and you can't get that back. When you see how a trick is done, that's the end of the awe. When you watch new products being announced now, don't you remember what Apple executives testified about the company's marketing strategy, how they try to "star" the product as a hero in its ads? I do. And that's damage. Because now, it doesn't feel as much magical so much as clinically interesting to observe as a tactic. Here's the transcript [PDF] of Phil Schiller's testimony, for example, on page 84:

Q: DOES APPLE HAVE A PARTICULAR APPROACH THAT IT USES TO MARKET THE IPHONE AND THE IPAD?

A: YES. I THINK WE HAVE A VERY DISTINCTIVE, UNIQUE APPROACH.

Q: AND WHAT IS THAT APPROACH, SIR?

A: AT APPLE IN MARKETING, WE CALL THIS APPROACH TO ADVERTISING PRODUCT AS HERO. THAT'S THE TERM WE USE.

Q: PRODUCT AS HERO?

A: YES.

Q: AND WHAT DOES THAT MEAN?

A: THAT MEANS -- THE MOST IMPORTANT WE DO AT APPLE IS TO CREATE A PRODUCT. THAT'S WHY WE'RE ALL THERE, TO CREATE AMAZING PRODUCTS, AND WE WANT TO SHOWCASE THOSE PRODUCTS AS PREDOMINANTLY AS WE CAN. SO OUR MARKETING STRATEGY IS TO MAKE THE PRODUCT THE BIGGEST, CLEAREST, MOST OBVIOUS THING IN OUR ADVERTISEMENTS, OFTEN AT THE EXPENSE OF ANYTHING ELSE AROUND IT, TO REMOVE ALL THE OTHER ELEMENTS OF COMMUNICATION SO YOU SEE THE PRODUCT MOST PREDOMINANTLY IN THE MARKETING.

And it worked too. I was awed by the iPad, for sure. I actually thought Apple was the first to do that kind of touchscreen. Until the trial, when an internal email at Apple informed me that Apple wasn't the first by a long shot, page 117:
A: THIS WAS A DISCUSSION BETWEEN STEVE SINCLAIR AND THE AD TEAM ON SOME CLAIMS.

Q: "AD" BEING ADVERTISING?

A: YES.

Q: OKAY. AND HE SAYS, "I DON'T KNOW HOW MANY THINGS WE CAN COME UP WITH THAT YOU COULD LEGITIMATELY CLAIM WE DID FIRST. CERTAINLY WE HAVE THE FIRST COMMERCIALLY SUCCESSFUL VERSIONS OF MANY FEATURES." AND I JUST WANT TO GO, "THE FIRST PHONE TO INCORPORATE A FULL TOUCHSCREEN FACE," AND IT SAYS, "NOT TRUE," AND YOU SEE THERE'S THAT WIKIPEDIA SITE TO A PRODUCT, THE LG PRADA. DO YOU SEE THAT?

A: I SEE THAT.

So they were not the first. They were the best at making things commercially successful, according to this employee on the Apple ad team, who to his credit didn't want to say anything that was not true.

When I read that, I thought of Steve Jobs mocking Microsoft at product reveals for copying Apple products and in those wonderful ad campaigns with actors playing Microsoft and Apple. That was effective. Look at Microsoft now. Why, I can't help but wonder, didn't Apple just do a similar job on Samsung, if it believed it was unfairly copying Apple products? I believe it could have worked, and a lot better than suing Samsung has.

If you are curious about where the parties and the journalists stand in more detail, here are some older documents that will explain it all to you. It all started with Reuters wanting to publish some documents it had gotten hold of during the trial. It won on First Amendment grounds, but when Apple and Samsung decided to appeal that order to unseal the documents, Reuters decided not to oppose, which is what brought the First Amendment Coalition into the fight, saying this in their press release:

“The public interest in open and public court proceedings–an interest protected by the first amendment–is especially strong in corporate battles between rival firms over patent rights,” said FAC executive director Peter Scheer. “The outcome of these cases can be highly disruptive, affecting millions of consumers in the prices they pay for smartphones, the functioning of their devices, and the choices they will have in mobile features, services and capabilities.”

“This is not an obscure commercial dispute affecting only two corporate parties and their shareholders,” Scheer said. ” “For better or worse, this is a dispute that will influence the mobile phone industry as directly and profoundly as any act of Congress.”

Until then, the parties may have thought they had a clear track and each filed briefs on why they each thought the unsealing orders by the district court were unfair:
  • Samsung's appeals brief [PDF]:
    The district court denied Samsung’s motions to seal on the ground that Samsung had not put forth “compelling reasons” in support, but this conclusion was erroneous as a matter of law. Far more detailed than the “financial information” that is ordinarily available to the public, the specific cost data, bills of materials, and product-by-product profit information that Samsung seeks to seal are closely guarded secrets throughout the mobile device industry. Release of Samsung’s confidential, trade-secret documents would not benefit the public but would serve only to injure Samsung’s position vis-à-vis both its competitors and its business partners. If the district court’s orders are not reversed, those other firms will be able to use their newfound and unearned insight into Samsung’s costs, pricing practices, and profit margins to compete with Samsung in a manner that would otherwise be impossible. The result would be to place Samsung at a serious disadvantage in the market, because its competitors and vendors are under no comparable disclosure obligation. This irreparable competitive injury is a “compelling reason” for sealing the documents from public view, as the Ninth Circuit and the Supreme Court have recognized.
  • Apple's Reply Brief [PDF]:
    Publicly exposing Apple’s trade secret information is an unnecessary toll to exact from Apple for vindicating its patent rights in court.
But then other journalistic groups decided to pick up the baton from Reuters:
  • Joint Motion of Amici Curiae for Leave to Participate in Oral Argument [PDF]:
    Pursuant to Rule 29(g) of the Federal Rules of Appellate Procedure, amici curiae the First Amendment Coalition (the “Coalition”) and the Reporters Committee for Freedom of the Press, joined by the American Society of News Editors, Bloomberg L.P., Dow Jones & Company Inc., Ganett Co. Inc., The New York Times Company, Society of Professional Journalists, and the Washington Post (collectively, the “Reporters Committee,” and, together with the Coalition, “Amici”) move this Court for leave to participate in oral argument in the above- captioned case. In accordance with Federal Circuit Rule 27, counsel for the Coalition, on behalf of Amici, has conferred with counsel for Apple and Samsung concerning this motion. As of the time of filing, counsel for Apple had not indicated whether Apple will object to this motion. Counsel for Samsung has indicated that Samsung opposes this motion and intends to file a response.

    Each of the Amici sought and received the Court’s leave to participate in this appeal as amicus curiae after Reuters – intervenor in the district court on the limited issue of the sealing of documents at issue – announced that it would not participate in the appeal. The Coalition first moved to intervene as a party-appellee on the ground that, given Reuters’ decision not to participate in the appeal, there would be no appellee and thus no other party to defend the district court’s ruling and advocate in favor of more open access to judicial records. The Court denied the intervention motion and invited the Coalition to seek leave to participate as amicus.

    As the parties’ briefs demonstrate, Apple and Samsung’s positions on the issue before the Court in this appeal are fully aligned. Though they are mortal enemies on the merits of the underlying patent dispute still pending in the district court, they are temporary allies on the questions raised here. Indeed, in their briefs, Apple and Samsung do not take issue with each other’s arguments, but instead focus entirely on responding to arguments raised by Amici.

    Without the participation of Amici in oral argument, the Court will not have the benefit of a true adversarial process. At oral argument, there will be no party set in opposition to Apple and Samsung’s challenge to the district court’s ruling on the documents at issue. There will be no appellee’s voice to defend the ruling below or to advocate for the public and the press’ right to access judicial records.

    Amici ask that they be permitted to participate in oral argument in place of the missing appellee.

  • Samsung's Opposition [PDF]:
    Amici First Amendment Coalition (“FAC”) and Reporters Committee for Freedom of the Press et al. have moved to participate in an oral argument that the Court has not ordered and that the parties have not requested. They offer no reason to think that such argument is necessary, or that their participation is warranted. And the requested relief is inconsistent with the Court’s prior order denying FAC’s motion to intervene in this appeal. The motion should be denied.
  • Apple's Opposition [PDF]:
    Amici’s motion to participate in oral argument seeks to allow amici to be heard in these appeals to the same extent as the parties. That request raises the same issues as amicus First Amendment Coalition’s (“FAC”) prior motion to intervene, and as with FAC’s prior motion, such relief may be granted only under “extraordinary circumstances.” Fed. R. App. P. 29(g) advisory committee note (1998) (stating that absent the parties’ consent to share time with amici, amici should be permitted to argue only under “extraordinary circumstances”). This Court previously found that FAC had not met that “exacting standard” in evaluating its motion to intervene. Dkt. No. 39-2 at 2. For the same reasons, amici have also failed to demonstrate that extraordinary circumstances warrant their participation in oral argument.
  • Order [PDF] on amici's initial motion:
    The motion is deferred to the merits panel assigned to hear the case.
  • Apple Supplemental Brief [PDF]:
    As before, the district court concluded that Apple’s market research information should be made public because the court believed, without citing any support, that “similar data” were available elsewhere. Id. The district court stayed the unsealing of Apple’s market research information pending the final resolution of this appeal....

    The district court’s decision to unseal nine documents containing Apple’s confidential market research data was an abuse of discretion for two reasons.

    First, Apple’s market research is a trade secret, which controlling Ninth Circuit precedent has consistently recognized as a compelling reason for sealing. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (“In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist when such ‘court files might have become a vehicle for improper purposes,’ such as the use of records to ... release trade secrets.” (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978))). Although others may collect their own market research, the unique market research that Apple conducts—as well as the conclusions that Apple draws from that data—cannot be replicated by anyone other than Apple and is closely intertwined with Apple’s future product development and marketing strategies. As a result, public disclosure of this information would cause serious competitive injury to Apple, which far outweighs any minimal interest in these materials to facilitate the public’s understanding of this case.

    Second, the district court erroneously analyzed whether to unseal Apple’s market research reports in their entirety under the Ninth Circuit’s “compelling reasons” standard. However, the vast majority of the information in those reports is not related to the merits of this case and should have been sealed upon a showing of “good cause,” which Apple made here. Kamakana, 447 F.3d at 1179-1180.

So that's the background to the current decision by the panel to allow the journalists to present their arguments at oral argument, after they renewed their earlier motion, which has now been granted.

If anyone is free to attend the hearing, that'd be grand.


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