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Re: From the Best Buy et. al. case

From: RJack
Subject: Re: From the Best Buy et. al. case
Date: Thu, 25 Feb 2010 06:41:02 -0500
User-agent: Thunderbird (Windows/20090812)

Alexander Terekhov wrote:
RJack wrote:
From the Erik Andersen vs. Best Buy et. al. Scheduling Order entered Feb. 22, 2010 appearing on PACER as case no. 1:09-cv-10155-SAS

"Shira A. Scheindlin U.S.D.J. ...

2. A concise statement of the issues as they then appear;

Pending results of Defendants' investigations, Defendants intend to
 show that the Plaintiff's have no damages, that the Defendants did
nothing actionable under copyright law, that any alleged copying was not willful, that Plaintiffs are not the proper parties, that the copyright held by Mr. Andersen is not applicable, and that, since being put on notice of the purported requirements of the general public license, Defendants have endeavored to come into compliance with what can only be described as a 'moving target'."

The part about what "... can only be described as a 'moving target'."
is legalese for "the plaintiffs have no idea what they are talking
about". From the context of the requests for expert testimony in the
Scheduling Order, it is obvious that the Defendants are asking for
the specific code that the plaintiffs claim is being infringed. The
plaintiffs can't identify the specific code *they own* that is subject
to the infringement claims that's the "moving target". The problem for
the SFLC isn't the immediate identity of the code -- they'll have time
for that later on. The problem is that Rule 12 motion practice is due to
begin on 15 March or soon thereafter.

Translation: Defendants intend to bankrupt frivolous Plaintiffs with lawyer fees and sanctions.

I also like the initial schedule:

Depositions of fact witnesses to be completed by 12/17/2010.

Initial disclosures by 3/8/2010.

The parties will serve initial requests for production of documents by 3/22/2010.

Initial expert reports due 2/11/2011. Rebuttal expert reports due 3/11/2011.

Each expert's deposition will be completed by 4/15/2011.

Fact discovery to be completed by 12/17/2010.

Expert discovery to be completed by 4/15/2011.

Final pre-trial conference: 1/6/2011 at 4:30.

Counsel for the parties have conferred and their present best estimate of the length of trial is fifteen (15) days.

Certain Defendants contemplate that they may request a jury trial.

I'm betting fifty to one that the SFLC folds with voluntary dismissals
before 15 March when Answers to Complaint are due. Otherwise sundry
F.R.C.P. Rule 12 Motions to Dismiss will blacken the skies over the
S.D.N.Y. and the SFLC will be shown to be wearing "The Emperor's New
Clothes". ROFL.

The SFLC must quickly move to voluntarily dismiss and then begin
trumpeting that "Captain Moglen scared them out of the water!".

RJack :)

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