Cambridge University Press et al v. Patton et al

Filing 261

TRANSCRIPT of Proceedings held on November 5, 2010, before Judge Orinda D. Evans. Court Reporter/Transcriber Andy Ashley, Telephone number (404) 215-1478. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/3/2011. Redacted Transcript Deadline set for 3/14/2011. Release of Transcript Restriction set for 5/11/2011. (Attachments: # 1 Notice of Filing Transcript) (fem)

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1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION 2 3 4 5 CAMBRIDGE UNIVERSITY PRESS, ET AL., 6 PLAINTIFFS, 7 V. 8 9 MARK P. BECKER, IN HIS OFFICIAL CAPACITY AS GEORGIA STATE UNIVERSITY PRESIDENT, ET AL., 10 DEFENDANTS. ) ) DOCKET NO. 1:08-CV-1425-ODE ) ) ATLANTA, GEORGIA ) NOVEMBER 5, 2010 ) ) ) ) ) ) ) ) 11 12 13 TRANSCRIPT OF SCHEDULING CONFERENCE BEFORE THE HONORABLE ORINDA D. EVANS SENIOR UNITED STATES DISTRICT JUDGE 14 APPEARANCES OF COUNSEL: 15 FOR THE PLAINTIFFS: EDWARD B. KRUGMAN TODD D. LARSON JOHN H. RAINS R. BRUCE RICH FOR THE DEFENDANTS: ANTHONY B. ASKEW STEPHEN M. SCHAETZEL ALSO PRESENT: CHARLES LEE COURT REPORTER: ANDY ASHLEY 1949 U. S. COURTHOUSE ATLANTA, GEORGIA 30303-3361 (404) 215-1478 16 17 18 19 20 21 22 23 24 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT PRODUCED BY COMPUTER. 25 ANDRE G. ASHLEY, O.C.R. 2 1 P R O C E E D I N G S 2 (ATLANTA, FULTON COUNTY, GEORGIA; NOVEMBER 5, 2010 3 IN CHAMBERS.) 4 THE COURT: 5 YOU ALL ABOUT TODAY. 6 SCHEDULING ORDERS. 7 SCHEDULING ORDERS WHICH REFERRED TO INSTANCES OF CLAIMED 8 COPYRIGHT INFRINGEMENT. 9 10 THERE ARE TWO THINGS I WANTED TO TALK TO ONE IS THE SUBMISSIONS OF PROPOSED BOTH OF YOU, BOTH SIDES SUBMITTED THE PROPOSAL MADE BY -- WHO DID EXHIBIT B; WHOSE WAS THAT? 11 MR. SCHAETZEL: 12 THE COURT: THE DEFENDANTS. OKAY. CALLS FOR PLAINTIFFS TO MAKE AN 13 INITIAL FILING, AND I'M LOOKING AT SUBSECTION C, LITTLE C ON 14 PAGE 2 OF EXHIBIT B. 15 COMPLETION OF THE DEPOSITIONS, PLAINTIFF SHALL FILE THEIR 16 SUBMISSIONS SETTING FORTH INSTANCES OF CLAIMED COPYRIGHT 17 INFRINGEMENT OF THE WORK IDENTIFIED IN THE COURT'S SEPTEMBER 18 30, 2010 ORDER. 19 IT SAYS THAT WITHIN 21 DAYS OF THEN IN THE NEXT PARAGRAPH LITTLE D, THEN WITHIN 30 20 DAYS AFTER PLAINTIFFS' MAKE THEIR FILING, DEFENDANTS SHALL 21 SUBMIT THEIR OPENING BRIEF AS TO THE CLAIMED INFRINGEMENTS, AND 22 THEN E, WITHIN 30 DAYS OF THE FILING OF DEFENDANTS' OPENING 23 BRIEF, PLAINTIFF SHALL SUBMIT AN OPPOSITION BRIEF AS TO THE 24 CLAIM INFRINGEMENTS, AND THEN F, WITHIN 21 DAYS OF THE FILING 25 OF PLAINTIFFS' OPPOSITION BRIEF, DEFENDANTS SHALL SUBMIT THEIR ANDRE G. ASHLEY, O.C.R. 3 1 REPLY BRIEF AS TO THE CLAIMED INFRINGEMENTS. 2 ALL RIGHT. NOW MY QUESTION IS THIS. I DON'T REALLY 3 UNDERSTAND WHAT EXACTLY IS GOING TO BE GOING ON IN THESE 4 NUMEROUS BRIEFS. 5 I MEAN ARE YOU JUST TALKING ABOUT THESE BRIEFS TRYING 6 TO NAIL DOWN WHAT THE UNIVERSE OF CLAIMED INFRINGEMENTS IS, OR 7 ARE YOU REFERRING MORE GENERALLY TO THE IDEA OF BRIEFING 8 WHETHER FAIR USE APPLIES TO THESE VARIOUS INSTANCES OF CLAIMED 9 INFRINGEMENT? 10 MR. RICH: YOUR HONOR, IF I MAY, AND I THINK WHAT I 11 WILL INDICATE IS IN ACCORD WITH OUR DISCUSSIONS WITH OPPOSING 12 COUNSEL. 13 DISCOVERY TO SET FORTH THOSE INSTANCES OF CLAIMED INFRINGEMENT 14 ON WHICH YOUR HONOR WOULD FOCUS WITHOUT BRIEFING THE FAIR USE 15 IMPORT OF THOSE SINCE AS YOUR HONOR POINTED OUT THE BURDEN OF 16 DEMONSTRATING FAIR USE RESTS WITH THE DEFENDANTS, AND SO OUR 17 FIRST SUBMISSION WOULD NOT BE A LEGAL BRIEF SO MUCH AS AN 18 IDENTIFICATION OF THE INSTANCES OF CLAIMED INFRINGEMENT AGAIN 19 WITH THE BENEFIT OF THE REMAINING DISCOVERY. 20 WHAT WE PROPOSED TO DO WAS FIRST FROM THE BENEFIT OF THE REMAINING ROUNDS OF BRIEFING WOULD BE THE MORE 21 TRADITIONAL ISSUE JOINDER ON THE FAIR USE ISSUES. 22 ANTICIPATE THAT MR. SCHAETZEL AND HIS FIRM WOULD RESPOND AS TO 23 EACH CLAIMED INFRINGEMENT AS THEY WILL WITH WHATEVER PROFFER 24 AND INCLUDING, WE ASSUME, ANY FAIR USE JUSTIFICATIONS WITH 25 RESPECT TO IT. ANDRE G. ASHLEY, O.C.R. WE WOULD 4 1 WE GET ESSENTIALLY OUR -- THE THIRD FILING IN THE 2 LIST IS ESSENTIALLY OUR BRIEF RESPONDING TO WHATEVER FAIR USE 3 AND OTHER LEGAL JUSTIFICATIONS MAY BE OFFERED, AND YOU CAN 4 CONSIDER THE FOURTH FILING AS THE EQUIVALENT OF A REPLY BRIEF 5 BY THE OTHER SIDE RESPONDING TO US. 6 BUT -- 7 THE COURT: IT'S A LITTLE CUMBERSOME ARE THESE BRIEFS GOING TO BE IN THE 8 NATURE OF SUMMARY JUDGMENT BRIEFS, OR ARE WE GOING TO BE 9 CONSIDERING THIS AS A TRAIL? 10 MR. RICH: WE DISCUSSED THAT AT SOME LENGTH, AND 11 SPEAKING FROM THE PLAINTIFFS' PERSPECTIVE, WE FRANKLY COULD 12 PROCEED EITHER WAY AT THIS POINT AND WILL OBVIOUSLY BE GUIDED 13 BY YOUR HONOR'S PREFERENCE. 14 WE SORT OF FEEL THAT TO THE EXTENT THAT A LOT OF 15 THESE ARGUMENTS ON THE ONE SIDE ARE QUITE FACT SPECIFIC. 16 CERTAINLY IF WE DRILL DOWN LOOKING WORK BY WORK, THERE WILL BE 17 A FAIR AMOUNT OF DETAILED BACK AND FORTH WHICH PERHAPS LENDS 18 ITSELF IF NOT BETTER AT LEAST AS EASILY TO BRIEFING. 19 AND FRANKLY TO THE EXTENT, AS YOUR HONOR IS AWARE, 20 THE FAIR USE DOCTRINE HAS A BIG LEGAL COMPONENT. 21 SEEMED TO US IT MAY ALSO LEND ITSELF TO, SO THAT WE THOUGHT 22 PERHAPS THE MORE EFFICIENT TECHNIQUE, EVEN THOUGH IT SOUNDS 23 LIKE A LOT OF PAPER, WOULD BE TO PRESENT IT IN A NEXT ROUND OF 24 SUMMARY JUDGMENT BRIEFING FOR YOU TO CONSIDER AGAIN SUBJECT TO 25 YOUR HONOR'S PREFERENCE. ANDRE G. ASHLEY, O.C.R. AGAIN IT 5 1 MR. SCHAETZEL: YOUR HONOR, FOR THE DEFENDANTS TWO 2 POINTS. 3 LOOKS AT ITEM C, WHICH IS THE INITIAL SUBMISSION TO BE MADE BY 4 THE PLAINTIFFS, WE THINK THAT TWO THINGS COULD HAPPEN THERE. 5 FIRST, THERE'S A THRESHOLD ISSUE HERE. WHEN THE COURT THE FIRST THING THAT COULD HAPPEN IS THAT AS THIS 6 NEXT ROUND OF INVESTIGATION GOES FORWARD, IT'S POSSIBLE, 7 ALTHOUGH WE THINK UNLIKELY, THAT THE PLAINTIFF MIGHT ACTUALLY 8 WITHDRAW SOME OF THE CLAIMED INFRINGEMENTS ON THE LIST THAT'S 9 CURRENTLY BEFORE THE COURT. 10 THERE IS AN ISSUE IN THAT THEY ARE ASKING FOR THE 11 CHANCE TO ADD CLAIMED INFRINGEMENTS TO THE LIST THAT'S 12 CURRENTLY BEFORE THE COURT, AND WE OPPOSE THAT. 13 THE COURT: YOU MEAN THE 2010 BRIEF? 14 MR. SCHAETZEL: YES, MA'AM. SO THAT'S THE FIRST 15 THRESHOLD ISSUE AS TO WHETHER OR NOT -- AND THAT'S ALL, AS MR. 16 RICH SAYS, THAT'S ALL THAT WOULD BE IN THE ITEM C FILING, JUST 17 AN IDENTIFICATION OF THE UNIVERSE OF THINGS THAT WERE IN 18 DISPUTE. 19 THE COURT: I WAS SORT OF ASSUMING THAT THE 20 PLAINTIFFS' INITIAL FILING WOULD BE A VERY COMPREHENSIVE LIST. 21 I MEAN YOU'VE ALREADY IDENTIFIED CERTAIN THINGS IN THE FILINGS 22 THAT YOU'VE MADE. 23 LIST BOTH WITH NEWLY DISCOVERED 2009 INFRINGEMENTS AND THEN YOU 24 WOULD LIKE TO ADD LATER INFRINGEMENTS AS WELL? 25 YOU'VE INDICATED YOU WANT TO AUGMENT THAT MR. RICH: THAT'S CORRECT. ANDRE G. ASHLEY, O.C.R. 6 1 THE COURT: SO THOSE ARE ISSUES, BUT THEY'RE REALLY 2 KIND OF A LITTLE BIT COLLATERAL TO THE FIRST QUESTION IN MY 3 MIND, AND, THAT IS, I DON'T REALLY UNDERSTAND WHAT YOU ALL 4 THINK IS GOING TO BE GOING ON WITH ALL OF THESE BRIEFS AND 5 WHETHER IT'S REALLY GOING TO MOVE THE CONVERSATION AHEAD IF WE 6 STILL NEED TO HAVE A TRIAL. 7 MR. SCHAETZEL: THE PARTIES ARE IN AGREEMENT, I 8 BELIEVE, YOUR HONOR, THAT ON THAT LATTER ISSUE AS TO WHETHER OR 9 NOT THESE WILL BE BRIEFS OR IN THE NATURE OF PRETRIAL 10 SUBMISSIONS THAT, IF YOU WILL, TEE UP THESE CLAIMED 11 INFRINGEMENTS FOR A TRIAL. 12 DEFENDANTS ARE FINE WITH THIS AS WELL. 13 WHICHEVER WAY THAT GOES, THE THERE COULD BE DEPENDING ON WHAT THE DISCOVERY SHOWS 14 SOME BENEFIT TO DOING SOME THINGS ON THE PAPER. 15 EXAMPLE, AS MANY AS 49 PROFESSORS AT ISSUE. 16 SOME THAT WOULD FERRET OUT ONE WAY OR THE OTHER. 17 THE COURT: THERE ARE, FOR THERE COULD BE I'M JUST TRYING TO THINK, YOU KNOW, IF WE 18 DO GO THE WAY OF IDENTIFYING -- THE PLAINTIFFS IDENTIFY THE 19 CLAIMS OF INFRINGEMENT, YOU KNOW, WHAT WORKS THEY'RE TALKING 20 ABOUT, AND YOU ALL COME BACK AND, I GUESS, IT'S CONTEMPLATED 21 YOU MIGHT SAY WELL, NO, THIS PARTICULAR CLAIM IS NOT VIABLE 22 BECAUSE ACTUALLY THAT COURSE WASN'T TAUGHT THAT SEMESTER OR 23 WHATEVER. 24 YOU COULD GO THROUGH THAT WHOLE PROCESS, AND WHAT WE 25 COULD BE LEFT WITH IS, YOU KNOW, JUST A FINAL LIST OF WHAT THE ANDRE G. ASHLEY, O.C.R. 7 1 ACTUAL CLAIMED INFRINGEMENTS ARE, AND IF THAT'S THE CASE, IT 2 SEEMS LIKE THERE'S AN AWFUL LOT OF WORK GOING INTO THAT. 3 OR WE COULD DO THE SUMMARY JUDGMENT APPROACH ON THE 4 UNFAIR USE ISSUE OR FAIR USE ISSUE, AND I DON'T KNOW ONCE WE 5 FINISH WITH THAT WHETHER THAT WILL HAVE ADDRESSED THE WHOLE 6 CASE, AND IF NOT, I THINK IT'S KIND OF A WASTE OF TIME JUST TO 7 DO THE SUMMARY JUDGMENT ROUTE. 8 MR. RICH: 9 YOUR HONOR, IF I MAY RESPONDING TO THAT, IF YOUR HONOR BELIEVES THAT THE PAPERS ADEQUATELY ADDRESS THE 10 FOUR FAIR USE FACTORS AND WHATEVER OTHER ASPECTS OF THE 11 ANALYSIS THE PARTIES BELIEVE RELEVANT AND THEN APPLIES THOSE TO 12 THE ALLEGATIONS WE PUT FORWARD IN OUR SUBMISSION, WE BELIEVE 13 IT'S DISPOSITIVE OF THE CASE EXCEPT FOR ANY INJUNCTIVE RELIEF 14 IF WE PREVAIL ON SOME OR ALL OF IT. 15 WOULDN'T SEE ANY TRIAL ISSUES. IN OTHER WORDS, WE 16 IF, ON THE OTHER HAND, YOUR HONOR FEELS THERE ARE ANY 17 ASPECTS OF THE FAIR USE ANALYSIS WHICH DON'T LEND THEMSELVES TO 18 BEING RESOLVED IN THE EXCHANGE OF PAPERS AND PERHAPS AFFIDAVITS 19 OR WHATEVER, THEN I PROBABLY WOULD SUGGEST REVISITING THE WHOLE 20 IDEA OF GOING THROUGH THIS EXERCISE AND MAYBE, YOU KNOW, LET'S 21 DO SOME FORM OF TRIAL AND SAVE EVERYBODY A LOT OF TIME. 22 IN OUR EXPERIENCE IN THESE CASES IN OTHER DISTRICTS 23 OFTEN, NOT ALWAYS BUT OFTEN, THE FAIR USE ISSUES HAVE BEEN ABLE 24 TO BE RESOLVED THROUGH A SUMMARY JUDGMENT KIND OF PROCESS 25 BECAUSE I THINK, YOUR HONOR, WILL HAVE BEFORE YOU ALL OF THE ANDRE G. ASHLEY, O.C.R. 8 1 RELEVANT FACTS, AND YOU'LL CERTAINLY HAVE MORE THAN YOUR -- A 2 FULL BRIEFING ON THE RELEVANT LEGAL PRINCIPLES. 3 BUNCH OF THAT ALREADY FROM US. 4 YOU'VE HAD A AND UNLESS YOUR HONOR GOING THROUGH THAT WERE TO SAY 5 I'M STILL NOT COMFORTABLE FACTUALLY WITH APPLYING SOME OF THAT, 6 OUR POSITION WOULD BE THAT WOULD REALLY BE DISPOSITIVE OF THE 7 MERITS ONCE YOU ADDRESS THE FILINGS, MEANING NO TRIAL WILL BE 8 NECESSARY. 9 THE COURT: 10 MR. RICH: 11 12 WELL DOES EITHER SIDE WANT A JURY TRIAL? WE ARE NOT SEEKING DAMAGES, AND WE HAVE NOT ASSUMED THE ENTITLEMENT OF SUCH A TRIAL. MR. SCHAETZEL: I DON'T THINK WE -- WE WOULD NOT WANT 13 A JURY TRIAL, BUT THERE'S -- THERE ARE TWO WAYS OF LOOKING AT 14 THE CASE, AND I THINK THE PARTIES DO DIFFER ON THIS. 15 IT APPEARS TO US THAT THE PLAINTIFFS' WAY OF LOOKING 16 AT THE CASE IS AT LEAST IN LARGE PART FROM A POLICY STANDPOINT, 17 LOOKING AT THE POLICY OF GEORGIA STATE AND TRYING TO MAKE A 18 DETERMINATION AS TO WHETHER OR NOT IT IN EFFECT SANCTIONS OR 19 FAILS SANCTIONS PROPER FAIR USE. 20 WE BELIEVE STRONGLY THAT AS THE COURT HAS DONE IN ITS 21 SEPTEMBER 30TH ORDER THAT TO ADDRESS FAIR USE IN THIS CONTEXT 22 IT WILL HAVE TO BE A WORK-BY-WORK, IF YOU WILL, FACT-BY-FACT 23 COMPARISON. 24 25 IF THAT'S THE ROAD THAT WE'RE GOING DOWN, QUITE FRANKLY I PERSONALLY DON'T SEE ANYWAY WE COULD RESOLVE ALL OF ANDRE G. ASHLEY, O.C.R. 9 1 THESE WITHOUT A TRIAL BECAUSE THERE WOULD BE SOME FACT DISPUTES 2 IN SOME OF THOSE INSTANCES. 3 THE COURT: GIVE ME AN EXAMPLE? 4 MR. SCHAETZEL: SURE. THE FOURTH FACTOR OF FAIR USE 5 AS TO WHETHER OR NOT THERE HAS BEEN ANY MARKET HARM, THE 6 PARTIES MAY HAVE A DISPUTE AS TO WHETHER OR NOT THERE'S BEEN 7 MARKET HARM FOR A GIVEN WORK, AND THAT MAY BE SOMETHING THAT 8 WOULD HAVE TO BE LITIGATED IN THE COURTROOM. 9 A PROFESSOR AS TO WHETHER OR NOT THERE WAS A 10 SUFFICIENT NEXUS BETWEEN THE CLASS THAT HE OR SHE TAUGHT AND 11 THAT SUBJECT MATTER AND THE EXCERPT THAT WAS USED AS TO WHETHER 12 OR NOT THAT WAS PROPER UNDER THE FAIR USE ACT. 13 THE COURT: OKAY. WELL, LET'S BACK UP JUST ONE STEP 14 FURTHER. ON THE QUESTION OF WHETHER TO EXPAND THE UNIVERSE OF 15 POTENTIAL CLAIMED INFRINGEMENTS INTO -- I THINK IT'S INTO 16 2010 -- 17 MR. RICH: THAT'S CORRECT. 18 THE COURT: -- I DON'T REMEMBER EXACTLY HOW THE 19 SEMESTERS HIT. 20 PLENTY OF MATERIAL TO WORK WITH FROM 2009, AND I'M NOT SURE 21 THAT I SEE WHY IT'S NECESSARY TO ADD MORE CLAIMED INFRINGEMENTS 22 FROM 2010. 23 HERE'S WHAT I THINK. I THINK YOU ALL HAVE IN SAYING THAT I AM GUESSING SINCE GEORGIA STATE'S 24 POLICY DID NOT CHANGE OR THE UNIVERSITY'S POLICY DID NOT 25 CHANGE, I THINK IT DIDN'T GOING INTO 2010, THAT IF WE ADD TO ANDRE G. ASHLEY, O.C.R. 10 1 THE UNIVERSE OF MATERIAL THE CLAIMED INFRINGEMENTS FROM 2010 2 THEY PROBABLY WOULDN'T BE ANY DIFFERENT IN SUBSTANCE FROM THOSE 3 IN 2009. 4 I THINK THE PLAINTIFFS MADE THE POINT IN YOUR PAPER 5 THAT YOU FILED THAT YOU NEED TO GO INTO 2010 TO MEET THE, 6 QUOTE, ONGOING AND CONTINUOUS, CLOSED QUOTE, REQUIREMENT, BUT 7 IT SEEMS TO ME THAT BASED ON ONLY A LITTLE BIT OF EVIDENCE SUCH 8 THAT THE POLICY HASN'T CHANGED, THERE ARE MORE INSTANCES OF 9 CLAIMED INFRINGEMENT, IT WOULD BE POSSIBLE TO SATISFY THAT 10 REQUIREMENT SUFFICIENTLY SO THAT WE COULD CONCENTRATE ON THE 11 POOL OF CLAIMED INFRINGEMENTS FROM 2009 OF WHICH I THINK THERE 12 ARE QUITE A FEW. 13 WHAT IS THE TOTAL? 14 MR. RICH: 15 18 19 THE COURT: I WOULD THINK IT WOULD BE HIGHER THAN THAT. MR. RICH: THERE WERE -- IN THE THREE AUGUST SUBMISSIONS YOU'RE SAYING? 20 THE COURT: 21 MR. RICH: 22 IT WAS MANY DOZENS. 16 17 IT WAS -- I COUNTED IT THIS MORNING. YOUR HONOR. YES. YES, THERE WERE A BUNCH, YOU'RE RIGHT, THE MAYMESTER AND JUNE -- 23 THE COURT: WOULD IT BE 200? 24 THE LAW CLERK: 25 THE COURT: 125. 125. OKAY. THERE YOU GO. ANDRE G. ASHLEY, O.C.R. SO YOU'VE GOT 11 1 120 INSTANCES AND MAYBE SOME OVERLAP OF MATERIALS BETWEEN 2 DIFFERENT ONES, BUT LOTS OF STUFF THERE THAT YOU CAN GET INTO. 3 SO I WANT BEFORE I MAKE A RULING ON YOU ALL'S REQUEST 4 TO INCREASE THE TEMPORAL SCOPE, I WANT TO MAKE SURE I 5 UNDERSTAND EVERYBODY'S POSITION, AND I'M KIND OF LOOKING TO YOU 6 TO PERSUADE ME IF YOU THINK YOU WANT TO -- 7 MR. RICH: THIS IS WHAT I'M SO HAPPY TO BE PERSUADED 8 OUT OF. WE FILED THIS REQUEST FOR TWO REASONS, ONE OF WHICH 9 YOU'VE IDENTIFIED, WHICH IS, WE DIDN'T FULLY APPRECIATE WHETHER 10 YOUR HONOR'S SEPTEMBER 30 ORDER VIEWED THOSE THREE TERMS AS A 11 SUFFICIENT BODY OF EVIDENCE ON WHICH YOU COULD EVENTUALLY MAKE 12 YOUR RULING, AND WE WANTED TO BE CAUTIOUS AND PROTECTIVE IN THE 13 EVENT THAT YOU WERE OTHERWISE OF A MIND TO SAY THIS ISN'T 14 ENOUGH OF A BODY OF EVIDENCE ON WHICH I CAN RULE. 15 CLEAR NOW YOUR VIEW AND WE'RE FINE. 16 THE ONLY REMAINING -- 17 THE COURT: YOU'VE MADE 18 19 I THINK WITH THE RIGHT STIPULATION OR SOME LITTLE OFFER OF EVIDENCE IT COULD BE HANDLED. MR. RICH: AND THAT GOES TO MY SECOND CONCERN. AS 20 YOUR HONOR KNOWS FROM READING THE PRIOR MOUND OF PAPERS, OUR 21 FRIENDS AT GEORGIA STATE HAVE ARGUED THAT THERE'S BEEN A 22 SIGNIFICANT IMPROVEMENT OR DIMINUTION IN NUMBERS OF CLAIMED 23 INFRINGEMENTS OVER TIME. 24 25 WE DISPUTE THAT FACTUALLY. I THINK EVEN THE AUGUST SHOWING DISPUTES IT, BUT I DON'T WANT TO BE IN A POSITION WHERE ANDRE G. ASHLEY, O.C.R. 12 1 AS PART OF THIS NEXT ROUND OF FILINGS WE'RE MET WITH AN 2 ALLEGATION THAT WE CAN'T RESPOND TO WHICH IS SOMEHOW THAT THE 3 2009 MATERIAL IS NOT REPRESENTATIVE OF, QUOTE, ONGOING 4 PRACTICE. 5 IF GEORGIA STATE'S REPRESENTATIVES ARE PREPARED TO 6 STIPULATE TO THAT, THEN WE'RE FINE WITH PULLING THAT MUCH OF 7 OUR DISCOVERY REQUEST OFF THE TABLE. 8 THE COURT: YOU ALL IN YOUR BRIEF THAT YOU FILED YOU 9 SAID YOU DIDN'T THINK IT WAS NECESSARY OR MAYBE NOT EVEN 10 APPROPRIATE TO EXPAND THE TEMPORAL SCOPE OF THE CLAIMED 11 INFRINGEMENTS, THAT'S MY RECOLLECTION. 12 MR. SCHAETZEL: THAT'S CORRECT, WE DON'T THINK IT'S 13 APPROPRIATE TO GO INTO THAT. 14 THE STATE AND ON THE UNIVERSITY IS SUBSTANTIAL WHICH WAS THE 15 REASON -- ONE OF THE REASONS FOR THE ACCOMMODATION THAT WE HAD 16 WAS TRYING TO GO BACK FOR THE THINGS THAT ARE ALREADY, IF YOU 17 WILL, ON THE TABLE, GO BACK AND GET CHECKLISTS AND SO ON AND SO 18 FORTH -- 19 THE COURT: OKAY. THE DISCOVERY EXPENSE ALONE ON WELL, I'M HEARING KIND OF AN 20 AGREEMENT THAT THERE IS NO NEED TO EXPAND THE TEMPORAL SCOPE 21 THEN? 22 MR. SCHAETZEL: I THINK THAT'S RIGHT. AS TO MR. 23 RICH'S QUESTION OF WHETHER OR NOT WE CAN REPRESENT THAT 2010 IS 24 REPRESENTATIVE OR AKIN TO 2009, I DON'T KNOW THAT WE HAVE ANY 25 INFORMATION ON THAT. I'D HAVE TO TALK TO THE CLIENT ABOUT THAT ANDRE G. ASHLEY, O.C.R. 13 1 TO FIND OUT. 2 THE COURT: WELL, I THINK THIS ISSUE HAS TO BE 3 ACCOMMODATED IN SOME WAY. 4 TO THE PLAINTIFFS' SIDE, YOU KNOW, IF YOU ALL ARE IN A POSITION 5 TO MAKE THE ARGUMENT THAT THINGS HAVE CONTINUED TO GET BETTER 6 AND BETTER AFTER 2009, THEN I HAVE TO LET THEM DO THEIR 7 DISCOVERY. 8 9 MR. SCHAETZEL: I MEAN I THINK IT'S OUT OF FAIRNESS I MEAN THE POLICY WAS IMPLEMENTED. WE WOULD ANTICIPATE THAT THINGS WOULD CONTINUE ON THE COURSE 10 THAT THEY HAVE GONE SINCE FEBRUARY OF 2009, THE DATE THE POLICY 11 WAS ADOPTED. 12 BUT, AGAIN, IT'S NOT SOMETHING WHERE THERE'S A PERSON 13 AT GEORGIA STATE THAT IS, YOU KNOW, MONITORING ALL THAT. 14 HAVE TO DO SOME RESEARCH TO TRY AND BE ABLE TO DETERMINE 15 EXACTLY WHAT SORT OF REPRESENTATION WE COULD GIVE UNLESS YOU 16 HAVE SOME -- 17 18 WE'D MR. ASKEW: NO, I DON'T HAVE ANY INFORMATION ABOUT THE COURT: OKAY. THAT. 19 WELL BASED ON WHAT YOU ALL HAVE 20 TOLD ME AND AFTER HAVING READ THE BRIEFS THAT YOU ALL 21 SUBMITTED, I'M GOING TO RULE THAT THE TEMPORAL SCOPE OF CLAIMED 22 INFRINGEMENTS CANNOT BE EXPANDED. 23 2009 -- THE THREE SEMESTERS IN 2009, AND WE'LL STICK WITH 24 THOSE. 25 WE'RE DEALING WITH THE AND AS I SAID, MY BEST BELIEF IS THAT THAT'S ENOUGH ANDRE G. ASHLEY, O.C.R. 14 1 TO MEET THE ONGOING AND CONTINUOUS REQUIREMENT, AND I CAN'T SEE 2 ANY REASON WHY THINGS WOULD BE DIFFERENT WHEN YOU'VE GOT THE 3 SAME POLICY AND A LOT OF THE SAME PROFESSORS. 4 WE'LL DO ON THAT. 5 SO THAT'S WHAT NOW, THE PLAINTIFFS HAVE ASKED TO BE ALLOWED TO 6 AUGMENT THE 2009 GROUP OR TO CHANGE OR CLARIFY IT BASED ON 7 INFORMATION YOU HAVE NOW THAT MAKES IT APPEAR THAT THE FILING 8 YOU ALL DID IN AUGUST, I GUESS, WAS NOT QUITE CORRECT. 9 SEE ANY REASON WHY THAT SHOULDN'T BE ALLOWED. 10 MR. RICH: I CAN'T AND I THINK WE HAVE HAD COOPERATION FROM 11 THE DEFENSE ABOUT PROVIDING US WITH UPDATED ERES REPORTS SO 12 THAT HOPEFULLY CAN ALLOW US TO DO THAT IN A COUPLE OF 13 INSTANCES. 14 THE COURT: OKAY. 15 MR. SCHAETZEL: I THINK THE QUESTION, YOUR HONOR, IS 16 WHETHER OR NOT THE PLAINTIFF WOULD BE ABLE TO ADD NEW 17 ALLEGATIONS OF INFRINGEMENT FROM THOSE. 18 WHAT TRANSPIRED IS THIS. FOR EXAMPLE, MR. RAINS 19 CALLED AFTER THE CLOSE OF FACT DISCOVERY AND SAID WE WOULD LIKE 20 TO GET AN ERES REPORT FOR THE SUMMER OF 2009. 21 SOME INSTRUCTIONS AS TO HOW HE WANTED THAT PREPARED, AND WE 22 FOLLOWED THOSE INSTRUCTIONS. 23 JOHN GAVE US IT WAS DURING THE SUMMER OF 2009 THAT WE PRINTED OFF 24 THE REPORT AND PROVIDED IT TO THE PLAINTIFF. 25 WAS STILL RUNNING. SO THE SEMESTER WE CAN NOW RUN THE REPORT AND ARE PREPARED ANDRE G. ASHLEY, O.C.R. 15 1 TO SHOW WHAT TRANSPIRED FOR THAT ENTIRE TIME. 2 THE COURT: RIGHT. 3 MR. SCHAETZEL: WHAT WE THINK IS FAIR GAME IS IF FOR 4 EXAMPLE A SPECIFIC ALLEGATION OF INFRINGEMENT, MAYBE UNDER THE 5 ORIGINAL REPORT IT INDICATED THAT TWO STUDENTS HAD ACCESS OR 6 WORK THAT WAS ON THE ERESERVE SYSTEM AND NOW IT SHOWS THAT FOUR 7 STUDENTS ACCESSED THAT WORK. 8 9 THAT'S A DIFFERENT SCENARIO FROM SAYING NO, NOW WE'RE GOING TO -- WE SEE THAT IN A DIFFERENT CLASS, THERE'S A 10 DIFFERENT WORK AND WE'RE LOOKING AT A NEW COPYRIGHT 11 REGISTRATION, A NEW COPYRIGHT CLAIM OF INFRINGEMENT WHERE 12 WE -- 13 THE COURT: I'M NOT SURE I'M FOLLOWING YOU ON THIS. 14 YOU JUMPED FROM THE FOUR STUDENTS TO THE TWO DIFFERENT 15 REGISTRATIONS. 16 MR. SCHAETZEL: 17 POTENTIALLY, YOUR HONOR. 18 NUMBER 1 HAS ALREADY BEEN IDENTIFIED AS A COPYRIGHTED WORK AND 19 THERE'S A CLAIMED INFRINGEMENT OF BOOK NUMBER 1. 20 AND THAT'S WHAT WOULD HAPPEN LET'S SAY, FOR EXAMPLE, THAT BOOK NOW WHEN WE RUN THE REPORT AGAIN, A DIFFERENT BOOK 21 APPEARS THAT WAS PERHAPS PUBLISHED BY ONE OF THE PLAINTIFF 22 PUBLISHERS, A DIFFERENT SAGE BOOK, FOR EXAMPLE, IS NOW ON THE 23 REPORT THAT WAS NOT ON THE REPORT WHEN IT WAS RUN WHEN WE 24 PROVIDED IT. 25 ARE WE GOING TO BE SUBJECT TO NOW A NEW CLAIM OF ANDRE G. ASHLEY, O.C.R. 16 1 INFRINGEMENT FOR THAT NEW WORK? 2 THE COURT: YEAH, YEAH, I DON'T SEE WHY NOT, BUT I 3 DON'T SEE AS A PRACTICAL MATTER WHY IT SHOULD MAKE ANY 4 DIFFERENCE TO YOU. 5 I MEAN MY IDEA HERE IS TO GET A REALLY CORRECT LIST. 6 THAT'S WHAT I'M LOOKING FOR. 7 HAPPENED IN EACH SEMESTER AS TO EACH OF THE COPYRIGHTED WORKS 8 WHERE THERE WERE CLAIMS OF INFRINGEMENT, AND TO THE EXTENT THAT 9 EITHER SIDE HAS BETTER INFORMATION NOW, SURE, LET'S CLEAN UP 10 A LIST THAT LAYS OUT EXACTLY WHAT THE LIST. 11 MR. SCHAETZEL: 12 THE COURT: WE'LL DO SO. OKAY. I THINK WHAT NEEDS TO HAPPEN, YOU 13 ALL NEED TO EXCHANGE INFORMATION, AND THEN I THINK YOU SHOULD 14 GET TOGETHER AND PREPARE FOR ME A CLEANED UP VERSION OF THE 15 LIST THAT YOU ALL FILED IN AUGUST, THERE WERE TWO LISTS, I 16 GUESS, AND IF THERE IS SOMETHING YOU DON'T AGREE ON, YOU COULD 17 NOTE YOUR DISAGREEMENT. 18 AND I GUESS WHAT I'M THINKING OF AT THIS POINT SINCE 19 WE'RE SORT OF EXPANDING THE SCOPE OF THESE LISTINGS, YOU KNOW, 20 MAYBE ONE PAGE COULD BE DEVOTED TO EACH CLAIMED INFRINGEMENT, 21 AND YOU COULD HAVE, LIKE YOU DID ON THIS CHART, YOU KNOW, THE 22 NUMBER OF CHAPTERS DISTRIBUTED, THE PAGE RANGE, THE NUMBER OF 23 PAGES. 24 25 I CAN TELL YOU SOMETHING ELSE YOU COULD DO FOR ME THAT WOULD SAVE ME DOING SOME MATH WOULD BE TO PUT SOME ANDRE G. ASHLEY, O.C.R. 17 1 PERCENTAGES IN THERE, YOU KNOW, WHAT PERCENTAGE OF THE PAGES IN 2 THE WORK -- 3 MR. RICH: WERE PHOTOCOPIED? 4 THE COURT: RIGHT, AND THEN, YOU KNOW, ON THE BOTTOM 5 HALF OF THE PAGE OR WHATEVER, ANY PARTS WHERE YOU ALL JUST 6 DISAGREE ABOUT THE FACTS, AND MAYBE, YOU KNOW, JUST TRY TO MAKE 7 IT EASY TO READ. 8 AGREED PARTS IN BLACK, AND THEN WE WOULD HAVE 127 PAGES, AND WE 9 COULD GO FROM THERE. 10 MAYBE PUT THE DISAGREEMENTS IN RED AND THE AND THEN I WOULD THINK AT THAT POINT, YOU KNOW, I 11 DON'T KNOW WHETHER -- WHATEVER WE DO AFTER THAT I WANT TO MAKE 12 SURE THAT IT ADDRESSES ALL CLAIMS IN THE CASE. 13 GET TO A POINT WHERE I'VE RULED ON THE FAIR USE ISSUES, AND 14 THEN SUDDENLY THERE IN THE BACKGROUND THERE IS SOMETHING 15 ELSE LINGERING SUCH THAT WE DON'T GET A FINAL JUDGMENT OUT OF 16 IT. 17 MR. RICH: I DON'T WANT TO YOUR HONOR, TO ME PARAMOUNT IS WHAT WORKS 18 EFFICIENTLY FOR YOUR HONOR, BUT HAVING SAID THAT, I DO BELIEVE 19 JUST IN THE NATURE OF THE FAIR USE ISSUE JOINDER AND GIVEN THE 20 NUMBER OF WORKS AND ALSO GIVEN THAT THERE WILL BE A 21 DISAGREEMENT AS TO WHETHER THIS CASE IS ULTIMATELY ONLY ABOUT 22 WORK BY WORK OR WHETHER IT'S ABOUT THE ANTHOLOGICAL EFFECTS OF 23 COMPILING SO MANY WORKS IN A GIVEN COURSE, WHICH IS ALSO 24 CENTRAL TO OUR ALLEGATIONS IN THIS CASE, THAT GIVEN THAT I FEEL 25 THAT YOU WOULD HAVE EVERYTHING YOU NEEDED AND MAYBE WE CAN ANDRE G. ASHLEY, O.C.R. 18 1 STREAMLINE IT INSTEAD OF FOUR FILINGS INTO TWO FILINGS. 2 ALL FOR THAT. 3 WE'RE I THINK IT COULD BE DONE ULTIMATELY EFFICIENTLY ON 4 PAPER. I COULD BE WRONG. 5 NECESSARILY AGREE WITH STEVE ON THIS, MR. SCHAETZEL, THAT THERE 6 IS AN INEVITABLY TO TRIAL. 7 YOUR HONOR MAY DISAGREE. I DON'T I THINK THERE WOULD BE RELATIVELY FEW ISSUES THAT 8 FROM THE BODY OF AFFIANTS YOU HAVE ALREADY. 9 AFFIDAVITS FROM EACH OF OUR CLIENTS REPRESENTATIVES ABOUT THE 10 MARKET HARM. 11 ARGUMENT. 12 IT'S A VERY GENERIC ARGUMENT. YOU HAVE IT'S NOT A SUBTLE YOUR HONOR WILL RESPOND TO IT AS YOU WILL. AND, LIKEWISE, THE OTHER FACTORS THEY'RE VERY FACT 13 SPECIFIC, AND THEN ULTIMATELY YOUR HONOR'S HARD TASK, OF 14 COURSE, IS TO APPLY THAT TO THE LAW, AND I JUST DON'T KNOW HOW 15 WITNESSES ON THE STAND ARE THAT MUCH MORE LIKELY TO ADVANCE 16 CLARITY FOR YOU THAN HAVING IT BEFORE YOU. 17 THE COURT: RIGHT. ONE DISTINCT DIFFERENCE WOULD BE 18 THAT IF WE TRY THE CASE, LET'S ASSUME IT'S NOT NONJURY, THEN I 19 WOULD EXPECT TO GET PROPOSED FINDINGS OF FACT AND CONCLUSIONS 20 OF LAW, AND THAT MIGHT BE MORE HELPFUL TO ME THAN JUST LOOKING 21 AT BRIEFS WHICH, YOU KNOW, WOULD NOT BE SO FACT BASED. 22 SO MY IDEA IS YOU ALL FINISH YOUR DISCOVERY, THEN YOU 23 TAKE A CERTAIN AMOUNT OF TIME TO GET TOGETHER THESE LISTS THAT 24 I WANT, AND ONCE THAT HAS BEEN DONE, I THINK WE SHOULD SET A 25 TRIAL DATE, GET A PRETRIAL ORDER, AND AT THE TRIAL YOU ALL ANDRE G. ASHLEY, O.C.R. 19 1 WOULD BE AT LIBERTY TO STRUCTURE IT AS YOU WISH. 2 YOU ALL COULD AGREE TO PRESENT AFFIDAVITS AT THE 3 TRIAL. THAT WOULD BE FINE WITH ME IF BOTH SIDES AGREE. 4 COULD CALL SOME WITNESSES. 5 YOU I WOULD LIKE TO DISCOURAGE YOU FROM PRESENTING A 6 WHOLE LOT OF EXPERT TESTIMONY. 7 HOW HELPFUL IT'S GOING TO BE. 8 OKAY. 9 MR. ASKEW: YOU COULD BUT I'M NOT TOO SURE SO HOW IS THAT FOR AN APPROACH? I COULD SAY I THINK WE CERTAINLY, YOUR 10 HONOR, INTEND TO PRESENT THE TESTIMONY OF DR. CREW. WE'VE 11 OBVIOUSLY HAD HIM INVOLVED IN THIS CASE A SUBSTANTIAL LENGTH OF 12 TIME NOW. HE HAS SUBMITTED AN EXPERT REPORT. 13 THE COURT: HE HAS? 14 MR. ASKEW: AND WE WOULD BE PLANNING ON USING HIM I 15 THINK IN A TRIAL AS AN EXPERT. 16 ANTICIPATE HAVING ANY OTHER EXPERT IN THE CASE. 17 WITNESSES FOR US WHO WOULD BE REPRESENTATIVES FROM GEORGIA 18 STATE AND VARIOUS PROFESSORS. 19 THE COURT: I DON'T THINK WE WOULD THERE MAY BE YEAH, I DON'T KNOW HOW HELPFUL INDIVIDUAL 20 PROFESSOR TESTIMONY IS GOING TO BE EITHER, BUT YOU ALL ARE 21 THE -- YOU'VE GOT TO STEP FORWARD AND TAKE THE LEAD ABOUT WHAT 22 YOU THINK IS THE BEST WAY TO PRESENT YOUR CASE. 23 ALL RIGHT. NOW, HERE'S ANOTHER ISSUE FOR THE TRIAL. 24 IT MAY BE IF THE ONLY ISSUE TO BE TRIED IS FAIR USE AND THE 25 PLAINTIFFS HAVE THE BURDEN OF PROOF -- EXCUSE ME, THE ANDRE G. ASHLEY, O.C.R. 20 1 DEFENDANTS HAVE THE BURDEN OF PROOF. 2 TRIAL WOULD BE STRUCTURED. 3 WOULD IN REBUTTAL. 4 MR. SCHAETZEL: 5 THE COURT: 6 MR. RICH: THAT THAT'S THE WAY THE YOU ALL WOULD GO FIRST AND YOU ALL WE WOULD ASK FOR THAT. YEAH. YOUR HONOR, MIGHT IT MAKE SENSE, THIS IS 7 HELPFUL GUIDANCE AND WE'RE COMPLETELY COMFORTABLE WITH THE 8 APPROACH, IT PROBABLY WOULD MAKE SENSE WITH THE BENEFIT OF YOUR 9 HONOR'S FEEDBACK THAT WE OVER THE COURSE OF THE NEXT LITTLE 10 WHILE CHAT BETWEEN COUNSEL AND FIGURE OUT OUR THOUGHTS ABOUT 11 THE MOST EFFICIENT WAY TO STRUCTURE A TRIAL, YOU KNOW, SO THAT 12 WE CAN MAKE THIS EXERCISE NOT TOO PAINFUL FOR EVERYBODY. 13 THE COURT: RIGHT. I KNOW THAT YOU ALL ARE PROBABLY 14 STRUGGLING OVER HOW THE FAIR USE DEFENSE SHOULD BE PRESENTED, 15 AND WE HAVE GOT HERE 127 WORKS, AND I THINK THAT'S SOMETHING 16 YOU ALL JUST HAVE TO STRUGGLE WITH AND FIGURE OUT WHAT TO DO 17 WITH IT. 18 BREACH ON THAT. 19 OUT. I'M NOT GOING TO TAKE THE LEAD ON -- JUMP INTO THE SO WE'LL JUST HAVE TO SEE HOW THAT SHAKES 20 OKAY. 21 MR. RICH: 22 LET'S SET AN AMOUNT REASONABLE -YOUR HONOR, MAY I RAISE ONE OTHER DISCOVERY RELATED ISSUE FOR YOU? 23 THE COURT: 24 MR. RICH: 25 YES. ANY, OF PROFESSORS. AND THIS INVOLVES FURTHER DEPOSITIONS, IF ANDRE G. ASHLEY, O.C.R. 21 1 THE COURT: 2 MR. RICH: I'M GLAD YOU BROUGHT THAT UP. GO AHEAD. I DON'T THINK THERE'S A LARGE DISPUTE. WE 3 HAVE NO INTENTION TO TAKE A DEPOSITION OF EVERY PROFESSOR WHO 4 WILL SHOW UP ON THIS 127 OR WHATEVER THAT NUMBER MIGHT BE 5 LIST. 6 7 8 WE DO FEEL WE WOULD WANT TO TAKE LITERALLY A HANDFUL OR LESS SUCH DEPOSITIONS OR FEWER SUCH DEPOSITIONS. THE COURT: I THOUGHT YOU HAD FIVE LEFT FROM YOUR 9 PREVIOUS AGREEMENT? 10 MR. RICH: 11 HERE'S THE WRINKLE. 12 DIFFERENT ISSUE, WHO AT GEORGIA STATE FROM THAT LIST OF I 13 COUNTED 48 DIFFERENT PROFESSORS I THINK SO FAR, WHO THEY MIGHT 14 CALL AT TRIAL AND PRESENT AS REPRESENTATIVE OF PRACTICES. 15 WE DO, AND SO THERE'S NO DISPUTE THERE. WE DON'T KNOW, NOW I GUESS A SLIGHTLY ALL WE HAD WANTED WAS THE PROTECTION THAT IN THE 16 EVENT, AND IT'S NOT UNCOMMON, THAT WE WOULD RECIPROCATE IN THE 17 EVENT EITHER SIDE PROPOSES NOW TO PRESENT LIVE TESTIMONY FROM 18 SOMEONE WHOM THE OTHER SIDE HAD NOT HAD THE OPPORTUNITY TO TAKE 19 A DEPOSITION THAT A TRIAL DEPOSITION BE AFFORDED. 20 BEEN VERY NARROW TO OUR DEPOSITIONS. 21 OF THE DISAGREEMENT BETWEEN US. 22 THE COURT: THESE HAVE THAT'S REALLY THE SCOPE BASED ON THE BRIEF THAT YOU ALL FILED, MY 23 IMPRESSION WAS THAT YOUR PREVIOUS AGREEMENT LIMITED YOU TO 24 POTENTIALLY FIVE MORE DEPOSITIONS AND THAT THE DEFENDANTS WERE 25 READY, WILLING AND ABLE FOR YOU TO HAVE THOSE FIVE. ANDRE G. ASHLEY, O.C.R. SO THAT'S 22 1 YOUR AGREEMENT AND THAT'S FINE WITH ME. 2 I'M NOT TOO SURE WHAT TO DO BEYOND THAT. 3 SIDES HAVE KIND OF STRUCTURED YOUR CASE IN THE WAY YOU WANTED 4 TO, AND MY ATTITUDE GENERALLY IS THAT BOTH SIDES HAD AN AMPLE 5 OPPORTUNITY FOR DISCOVERY, AND YOU CHOSE TO DO CERTAIN THINGS, 6 AND I DO NOT WANT TO JUST OPEN UP DISCOVERY AGAIN BECAUSE I 7 THINK IT WILL DELAY THINGS AND IT WILL BE VERY EXPENSIVE. 8 I MEAN BOTH I THINK WHAT YOU ARE SAYING ABOUT WELL IF THE 9 PLAINTIFFS DECIDE TO CALL CERTAIN PEOPLE AT TRIAL THAT YOU 10 DIDN'T KNOW PREVIOUSLY THAT THEY MIGHT BE TESTIFYING, YOU 11 HAVEN'T HAD A CHANCE TO QUESTION THEM, YOU KNOW, THAT MIGHT BE 12 AN AREA WHERE SOME EXCEPTIONS COULD BE MADE, BUT I REALLY THINK 13 YOU ALL SHOULD, YOU KNOW, TRY TO THINK THROUGH HOW YOU THINK 14 THE TRIAL IS GOING TO GO, AND YOU'RE GOING TO HAVE TO TALK 15 ABOUT WHO YOUR WITNESSES ARE GOING TO BE WHEN YOU DO THE 16 PRETRIAL ORDER AND JUST SEE HOW IT LOOKS AND SEE WHAT YOU CAN 17 RESOLVE BY AGREEMENT. 18 MR. RICH: EXCELLENT. 19 MR. ASKEW: COULD I ASK THIS QUESTION, YOUR HONOR? 20 THE COURT: YES. 21 MR. ASKEW: THERE IS THIS QUESTION ABOUT THE NUMBER 22 OF PROFESSORS THAT WE HAVE INVOLVED HERE 48 OR 49, AND YOU'RE 23 ABSOLUTELY CORRECT, WE'VE WRESTLED WITH HOW MANY OF THOSE WOULD 24 WE WANT TO USE AS A WITNESS. 25 AM I CORRECT IN MY UNDERSTANDING THAT YOU WOULD NOT ANDRE G. ASHLEY, O.C.R. 23 1 BE PARTICULARLY INTERESTED IN HEARING FROM 48 PROFESSORS? 2 THE COURT: WELL, AS I SAID, I DON'T WANT TO JUMP 3 INTO THE BREACH HERE. 4 THE FAIR USE DEFENSE BE PRESENTED IN THIS CASE BASED ON SOME 5 GENERALIZATION ABOUT THE NATURE OF THE WORKS AND SO FORTH, AND 6 IT'S POSSIBLE THAT IT CAN BE, BUT I'M NOT -- I DON'T WANT TO 7 MAKE THAT DECISION FOR YOU ALL. 8 9 10 I THOUGHT MYSELF ABOUT, YOU KNOW, CAN I THINK IT'S JUST YOU KNOW THE CASE BETTER THAN I DO, AND I THINK, YOU KNOW, YOU ALL WOULD BE THE BEST JUDGES OF THE BEST WAY TO PRESENT YOUR FAIR USE DEFENSE. 11 I WOULD IMAGINE I WOULDN'T BE TOO HAPPY TO HEAR FROM 12 48 OR 49 PROFESSORS, PARTICULARLY IF THEY'RE ALL GOING TO BE 13 SAYING THE SAME THING. 14 MR. RICH: YOUR HONOR, AN OBVIOUS POSSIBILITY IS THAT 15 WE CAN STIPULATE TO THE REPRESENTATIVENESS OF THE TESTIMONY OF 16 SOME NUMBER OF PROFESSORS. 17 KNOW, BUT THAT WOULD LOGICAL. 18 THE COURT: WHETHER THAT'S FEASIBLE, I DON'T YEAH, I DON'T KNOW EITHER. I JUST DON'T KNOW. I REALLY 19 DON'T. I MEAN I SEE YOUR LIST OF THESE 20 WORKS, AND MAYBE I HAVE SOME IMPRESSIONS ABOUT WHAT THEY ARE, 21 BUT I THINK IT'S PRETTY OBVIOUS THAT I HAVEN'T READ VERY MANY, 22 IF ANY, OF THESE WORKS, AND SO SOMEBODY IS GOING TO HAVE TO 23 EDUCATE ME ABOUT THEM, AND THE BEST WAY TO DO IT, I'M NOT SURE 24 WHAT IS THE BEST WAY TO DO IT. 25 ALL RIGHT. NOW, LET'S SEE, SO YOU ALL IN YOUR ANDRE G. ASHLEY, O.C.R. 24 1 PROPOSED SCHEDULING ORDERS CONTEMPLATED A CERTAIN AMOUNT OF 2 TIME FOR SUPPLEMENTATION OF DISCOVERY AND DEPOSITIONS OF UP TO 3 FIVE GEORGIA STATE WITNESSES, AND THAT'S OKAY WITH ME. 4 AND THEN IN SECTIONS C, D, E AND F OF THE PLAINTIFFS' 5 FILING, YOU HAVE ALL THIS STUFF ABOUT OPPOSITION BRIEFS. 6 JUST SCRATCH THAT, AND INSTEAD OF THAT SAY THAT COUNSEL FOR THE 7 PARTIES SHALL CONFER AND JOINTLY PREPARE UPDATED STATEMENTS OF 8 THE CLAIMED INFRINGEMENTS IN THE THREE 2009 SEMESTERS, AND 9 WHAT WOULD BE THE AMOUNT OF TIME, YOU THINK, YOU'D NEED TO DO 10 11 12 13 14 THAT? MR. SCHAETZEL: MR. RICH: HOW DOES 30 DAYS FROM THE CLOSE OF THE DEPOSITIONS SOUND TO GET THAT PROCESS DONE? MR. SCHAETZEL: 16 MR. RICH: 18 WE WILL BE PRODUCING ELECTRONICALLY TODAY UPDATED ERESERVE REPORTS. 15 17 LET'S IS THAT FOR BOTH OF US -- WE'RE THINKING 45 DAYS, YOUR HONOR, FROM THE END OF THE DEPOSITIONS. THE COURT: LET'S DO THAT. 45 DAYS TO GET THAT FILED 19 WITH THE COURT, AND THEN I GUESS AFTER THAT WE JUST NEED TO SET 20 A DATE FOR FILING THE PROPOSED PRETRIAL ORDER. 21 HOW MUCH TIME DO YOU WANT FOR THAT? 22 MR. SCHAETZEL: TWO THOUGHTS ON THAT, YOUR HONOR. 23 FIRST, I'D LIKE TO BE CERTAIN THAT THE COURT IS AWARE THAT LATE 24 YESTERDAY WE FILED A MOTION TO DISMISS. 25 THE COURT: I HAVE SEEN IT. SO THAT'S -- JUST GLANCED AT IT. ANDRE G. ASHLEY, O.C.R. I 25 1 HAVE NOT HAD A CHANCE TO READ IT. 2 MR. SCHAETZEL: CERTAINLY, I UNDERSTAND. I WANTED 3 YOU TO BE AWARE OF THAT AS WE TALKED ABOUT TIME, BUT OBVIOUSLY 4 IF WE JUST USE THE LOCAL RULE PROVISION, SOMETHING LIKE ANOTHER 5 30 TO 45 DAYS TO PREPARE THE PRETRIAL ORDER. 6 MR. RICH: I WOULD AGREE WITH THAT. 7 THE COURT: OKAY. 30 DAYS AFTER THE FILING OF THAT 8 LIST, YOU GET THE PROPOSED PRETRIAL ORDER IN, AND I GUESS AS 9 SOON AS I GET THAT PRETRIAL ORDER, I'LL SET A TRIAL DATE. 10 OKAY. SO WHAT WE HAVE OUTSTANDING OTHER THAN THIS 11 ISSUE ABOUT THE CLAIMS OF INFRINGEMENT, WE HAVE THE PLAINTIFFS' 12 MOTION FOR RECONSIDERATION THAT WAS FILED A COUPLE OF WEEKS AGO 13 I THINK AND -- 14 15 16 17 MR. RICH: THE SECOND PORTION OF WHICH IS NOW MOOT FROM TODAY. THE COURT: RIGHT, I GUESS SO SOME OF IT IS MOOT. ARE YOU ALL GOING TO FILE A RESPONSE TO THAT? 18 MR. SCHAETZEL: 19 THE COURT: YES, IT'S DUE MONDAY. ALL RIGHT. I'LL LOOK AT THAT, AND WE'LL 20 JUST TAKE THAT UNDER ADVISEMENT FROM THAT POINT, AND THEN AS 21 SOON AS I GET YOU ALL'S RESPONSE TO THE MOTION TO DISMISS, 22 WE'LL GET BUSY ON THAT. 23 I THINK THAT PRETTY WELL WRAPS UP THE AGENDA. 24 YOU ALL THINK OF ANYTHING ELSE? 25 MR. LARSON: CAN YOUR HONOR, IF I COULD ON SECTION A OF ANDRE G. ASHLEY, O.C.R. 26 1 THE PROPOSED SCHEDULE, THE ENTIRE DISCOVERY SCHEDULE IS KEYED 2 OFF OF THE DATE OF EITHER NOVEMBER 30 OR 15 DAYS AFTER YOUR 3 DECISION ON THE MOTION FOR RECONSIDERATION. 4 WHAT YOU JUST SAID THAT WE SHOULD PLAN OUR DATES BASED ON YOUR 5 RESPONSE THEN TO THE MOTION FOR RECONSIDERATION? 6 7 MR. KRUGMAN: I TAKE IT FROM NO, I DON'T THINK THAT'S NECESSARY. IT'S ONLY PART TWO OF THE MOTION FOR CONSIDERATION. 8 THE COURT: ALL RIGHT. 9 THE LAW CLERK: THANK YOU VERY MUCH. MAY I CLARIFY ONE THING, THE 10 SUBMISSION OF THE LIST, YOU REFERRED TO IT AS A LISTING OF THE 11 CHARTS. 12 IT IN LIKE ONE PAGE FOR EACH ITEM? 13 CLARIFY NOW EXACTLY HOW THAT WILL BE DONE. DO YOU PREFER THAT IN A CHART FORMAT, OR DO YOU PREFER 14 THE COURT: 15 MR. SCHAETZEL: 16 THE COURT: 17 18 19 IT MIGHT BE EASIER TO I WOULD LIKE ONE PAGE FOR EACH. YES, I HEARD 127 PAGES. YOU KNOW, I'M NOT SURE WHETHER A CHART IS FEASIBLE. MR. RICH: DID YOU FIND THE CHART HELPFUL ON THE SUBMISSION? 20 THE COURT: I DID. 21 MR. SCHAETZEL: 22 THE COURT: 23 OKAY. 24 (PROCEEDINGS CONCLUDED.) WE CAN DO BOTH. BOTH WOULD BE GREAT. THANK YOU. 25 ANDRE G. ASHLEY, O.C.R. 1 2 C-E-R-T-I-F-I-C-A-T-E 3 4 UNITED STATES OF AMERICA 5 NORTHERN DISTRICT OF GEORGIA 6 7 I, ANDRE G. ASHLEY, DO HEREBY CERTIFY THAT I AM A 8 U.S. DISTRICT REPORTER FOR THE NORTHERN DISTRICT OF GEORGIA, 9 THAT I REPORTED THE FOREGOING AND THE SAME IS A TRUE AND 10 ACCURATE TRANSCRIPTION OF MY MACHINE SHORTHAND NOTES AS TAKEN 11 AFORESAID. 12 13 IN TESTIMONY WHEREOF I HAVE HEREUNTO SET MY HAND ON THIS 10TH DAY OF FEBRUARY, 2011. 14 15 16 17 18 19 20 ANDRE G. ASHLEY OFFICIAL COURT REPORTER NORTHERN DISTRICT OF GEORGIA 21 22 23 24 25 ANDRE G. ASHLEY, O.C.R.