by Paul Alan Levy
Over the past couple of months, I have discussed the heavily redacted filings in Rosetta Stone’s appeal of a ruling that Google did not violate the trademark laws by allowing advertisers to bid on the display of ads to Internet users who searched on Google for the term “Rosetta Stone.” The parties responded to Public Citizen’s request for consent to motion for leave to intervene and to unseal Rosetta Stone’s brief by allowing it all to be filed publicly; once that happened, review of the former redactions (shown here) made it apparent that there was never any basis for sealing in the first place.
At the same time, Google filed its own brief on appeal, containing a number of redactions which, Google’s counsel told me, had been made at Rosetta Stone’s insistence. Again Public Citizen asked for consent to motions for leave to intervene and to unseal, and again the parties promptly agreed to seek leave for unsealing; again the Fourth Circuit gave its consent. And once again, now that Google has filed its brief without any redactions, comparison of the brief with the former redactions leaves me scratching my head about why any reasonable litigant would have thought that the facts concealed here could have outweighed the public interest in access to judicial records.
(see pages 9, 10, 27, 33, 35, 38, and 56). Perhaps some of the formerly redacted material will be mildly embarrassing to Rosetta Stone given its public posture in this case. For example, among the redactions were showing Rosetta Stone’s heavy use of Google’s keyword advertising program, and showing that it got much more in sales through Google ads than through any other methods (page 9). Also redacted were the facts that Google helped Rosetta Stone track down counterfeiters, page 38, and indeed Rosetta Stone told the FBI how helpful Google had been in catching counterfeiters. page 10. And Google was forced to redact data showing how little public recognition the Rosetta Stone mark has (hence Rosetta Stone may not really have a famous mark). page 56. But it is hard to understand why these are trade secrets that outweigh the public right to know. What it shows, instead, is that, given the tight schedule for briefing, counsel proceeded to file sealed briefs in defiance of the public’s right of access, instead of limiting the redactions to whatever material there is in the Joint Appendix that really merits confidentiality.
In the final analysis, however, blame rests not on counsel but rather on Fourth Circuit rules that make it too easy for parties to file under seal without giving careful consideration to the public’s rights. In the Seventh Circuit, and some other circuits, parties cannot just automatically file in the court of appeals under seal, just because they did it that way below, or because it is too cumbersome to file a partly redacted Joint Appendix. Instead, in other circuits, the parties must justify each item of sealing before it is filed secretly in the court of appeals.
As previously reported, Public Citizen has joined with Eric Goldman and Martin Schwimmer in seeking unsealing of the joint appendix; Google and Rosetta Stone’s responses to our motions are due January 17. But we have also suggested that the Committee on Appellate Rules consider adopting uniform procedures that protect the right of public access. Have been advised that the Rules Committee will be considering this issue in the new year. I’ll report back as both processes go forward.