by Paul Alan Levy
Rosetta Stone has just filed the opening brief in its appeal from a trial court decision granting summary judgment against its claim that Google violates the trademark laws when it sells advertising space to companies who want to reach Internet users who have shown interest in finding information about search terms that incorporate specific trademarks.
Here we have one of the most important trademark appeals of the year, an appeal likely to attract many amicus efforts on both sides, as well as a plethora of comment from scholarly and other writers, and addressing an issue on which various efforts have been made to enact legislation, but there are significant gaps in the brief. The statement of facts runs roughly nine pages, and roughly six of those pages have been redacted because they reflect information produced in discovery subject to a claim of confidentiality. There are several major redactions in the legal arguments as well.
The order requiring confidentiality does not call for any judicial scrutiny of the need for confidentiality. Assuming that Rosetta Stone v. Google proceeded in the normal fashion, we may assume that each side was so consumed by the imperatives of high profile litigation (not to speak of the exceptional deadlines imposed by the notorious rocket docket of the Eastern District of Virginia) that they paid little attention whether the other side was over-designating, and certainly did not take the time to file papers challenging the propriety of such designations. Indeed, the trial court’s docket contains various unopposed motions for sealing.
But now that the case is up on appeal, the public interest in the issues is even greater, and the justifications for keeping appellate briefs partially secret must be concomitantly greater. Public Citizen has asked both Google and Rosetta Stone to agree to unseal their entire appellate briefs. If they do not do so, and do not provide persuasive arguments showing genuine need for continued sealing of specific excerpts of their briefs, sufficient to overcome the presumption of public access to judicial records, we expect to intervene in the appeal to seek unsealing.
Counsel for the parties have told me that they are agreeable to having the entire Rosetta Stone appellate brief filed in unredacted form. I'll report back when that comes to fruition.