Monday, October 29, 2007

Judge Is Tentative In His Ruling.

The way U.S. Judge Edward Rafeedie started out, I thought News-Press owner Wendy McCaw's back porch was going to be lopped off so someone could carry it home in their briefcase.

The judge took the bench at about 10:15 am this morning and noted that Halloween would mark his 38th year on the bench. He then remarked how he has never ceased to be amazed how parties will bring pointless litigation that will only rack up legal fees and resolve nothing. 30 minutes later when the case of News-Press v. the Independent was called the judge told the lawyers this was the case he had in mind when he made his opening remarks.

He then quite firmly inquired of Stanton Stein, McCaw's lead attorney in this particular lawsuit, about what he hoped to accomplish and why this case hadn't been settled.

While the judge acknowledged that it did appear there had been a "technical" violation of copyright laws he was at a loss to see what the damages or harm could possibly be.

Stein, who was quickly put on the defensive, appeared to this observer to be taken a bit off guard by the judge's remarks. He even appeared to be a little bit confused when the judge asked him for clarification of which paper was a weekly and which was a daily. Stein later explained to me that the reason he looked over to the Indy's lead attorney Lou Petrich at this juncture was to try to get a sense of why the judge was making that inquiry as opposed to throwing out a lifeline to get help in answering the question correctly.

After what must have felt like 15 minutes of waterboarding to Stein and the News-Press' attorneys, although in truth it was only about five, the judge then proceeded to give his tentative ruling on the case.

Before him was the question of whether the News-Press' claims that the Indy violated copyright laws when it posted Scott Hadly's unpublished article about what transpired in the newsroom the day editor Jerry Roberts and others quit; that they stole the News-Press' trade secrets by publishing that article and perhaps coming into possession of another unpublished article about Roberts' arbitration with the paper; and that they also concomitantly engaged in unfair business practices, and intentionally and/or negligently interfered with the News-Press prospective economic advantage and contract, ought to be in effect thrown out of federal court.

The judge thought there was little question that the Indy had committed copyright infringement when they published Hadly's article on their website and that the doctrine of "fair use" did not protect the Indy or provide it a defense.

As to the other claims, the judge indicated that they were "preempted" by the copyright claim and therefore should be dismissed. In other words, it's a copyright infringement case and nothing more.

The judge indicated he would grant the News-Press more time to gather evidence of whether Indy writer Nick Welsh actually ever had possession of the arbitration story, something he denies and which the News-Press has no affirmative evidence that would establish that he did, at least as of now.

The judge did most of the talking during the hearing but near the end he let the lawyers respond to his indicated ruling. In the end he decided that he would take one more look at the matter before making his ruling final so the morning ended on a less than satisfying note for anyone who is looking for some kind of finality on at least one aspect of the many headed monster that is the News-Press saga.

More thoughts on the hearing tomorrow.

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