An Unlikely Win Improves The Odds of Winning For ABOL

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An Unlikely Win Improves The Odds of Winning For ABOL

Postby admin » Wed Sep 18, 2013 10:48 pm

An Unlikely Win Improves The Odds of Winning For the American Buddha Digital Library
by Charles Carreon
9/18/13

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One-Percent Chance Comes In For American Buddha

Motions to transfer venue are some of the least-often granted motions in the Federal system — ninety-nine percent (99%) of these motions are denied. Nonetheless, my client American Buddha, through the good offices of local counsel in Portland, just won its motion to transfer venue from the US District Court of Portland, Oregon to Arizona. Magistrate Judge Dennis J. Hubel’s opinion is a well-reasoned discussion of all the arguments made by both parties.

With This Ruling, American Buddha Doubled Its Odds of Winning

Cited in the motion to transfer venue is an interesting study that may have influenced Judge Hubel’s analysis, although he didn’t refer to it. Entitled “Exorcising the Evil of Forum-Shopping,” by Kevin M. Clermont and Theodore Eisenberg of Cornell Law School, it indicates that, by securing a transfer, American Buddha will statistically reduce Penguin’s chance of winning from 58% to 29%:

“Utilizing a database of the three million federal cases terminated over thirteen recent years, we take a closer look. Most importantly, we see that the plaintiffs’ rate of winning drops from 58% in cases in which there is no transfer to 29% in transferred cases. This dramatic effect prevails over the range of substantively different types of cases. A big part of the most probable explanation for this drop is that plaintiffs are indeed forum-shopping, but that courts are transferring cases to more just courts, so that the decrease in the win rate reflects the fact that courts are stripping plaintiffs of unjust forum advantages. Statistical analysis supports this explanation and, at long last, demonstrates that forum does affect outcome.


I also got the ninety-nine percent failure rate on transfer motion quoted above, from this same study:

“In sum, the database comprises 2,804,640 terminations of federal civil cases. These yielded 985,312 nontransfer judgments and 9,389 transferjudgments.


A Beautiful Day In Tucson, Arizona

After transfer, American Buddha will have the opportunity to try its case to a community where the University of Arizona School of Library Science is a major feature of civic pride, where our yearly Book Fair draws many thousands of book lovers, book dealers, and even circus performers to ply their wares and skills. American Buddha’s members will be able to testify in open court as to the value and use of the Nader Library operated by American Buddha. it’s a beautiful day in the neighborhood, with only one caveat: Although it was within his power to simply grant the motion, Judge Hubel very considerately gave Penguin the opportunity to have the decision reviewed by an Article III judge. Penguin may take the opportunity to object to Judge Hubel’s Findings & Recommendations, which would thus further delay the resolution of the issues on the merits.

American Buddha: Litigating For Library Freedom Since 2009

For those unfamiliar with the story, this case has been going on since 2009, when Penguin filed its lawsuit in the Southern DIstrict of New York — a jurisdiction where Amereican Buddha could not lawfully be sued — a finding of fact and principle of law that was firmly established when District Judge Ronnie Abrams dismissed the action for the second time after four years of litigation that traversed the Second Circuit Court of Appeals and elicited an opinion from the New York Court of Appeals holding that copyrights for written books are injured in the state where the copyright owner resides. While the NYCA certainly intended thereby to help Penguin to victory in the SDNY, the facts were so compelling that American Buddha won anyway.

Penguin Abandons The “Virtual Library Only Doctrine”

Finally, I should note an interesting thing that happened to Penguin’s legal position up in Oregon — it abandoned its contention that the Library Exemption from Copyright Liability provided by 17 USC Section 108 and associated common law doctrines does not apply to “virtual-only libraries.” Why did that happen? Because American Buddha’s Motion to Transfer Venue made it clear that establishing that the Library has a “brick-and-mortar” facility will be crucial to overcoming that contention. American Buddha made this argument in its reply brief in support of the motion to transfer venue:

To the question, “Why does the defendant’s inability to present its witnesses in the
Portland venue, when Penguin could as easily litigate in Tucson, not justify transfer?” Penguin
simply predicts victory on liability before trial. However, this argument suffers from at least two
fatal defects.

First, as an element of liability at paragraph 27 of the Complaint, Penguin alleges:

“The exemption from liability for copyright infringement under Section 108 of the Copyright Act, 17 U.S.C. § 108, does not apply to “virtual-only” libraries and archives, i.e., those that do not conduct their operations through physical premises.” (Complaint, page 5, Docket # 1.)


This allegation clearly puts the question of whether defendant has a “brick and mortar” library in issue as a predicate to establishing Penguin’s theory of liability, and Defendant has presented the declarations of witnesses for the defense who cannot testify in Portland, but can testify in Tucson. [Fact citations omitted.] Thus, this issue can only be fairly tried in the District of Arizona.


In response to this argument, what did Penguin do? Well everyone knows how agile penguins are — they can swim on their backs, flip around on slick ice, and reverse position in mid-trajectory. So that’s what Penguin did, attempting to jettison the “Virtual Only Library Doctrine” by requesting an amendment. Initially, Penguin almost achieved that shift in position without dispute, because due to an error in communications, the first set of lawyers for American Buddha mistakenly agreed to allow the amendment; however, that error was quickly corrected with this Notice of Erroneous Filing, once discovered by yours truly. American Buddha’s new attorney then filed an Opposition to Plaintiff's First Amended Complaint http://punklawyer.com/wp-content/uploads/2013/09/FILED.OPP_.FAC_.pdf that argued that if Penguin’s First Amended Complaint were filed, that Penguin should be precluded from trying to resuscitate what American Buddha dubbed the “Virtual Only Library Doctrine”:

“The Court is respectfully requested to grant the motion only upon the condition that Penguin shall be precluded from presenting any declarations, lay or expert testimony, documentary or demonstrative evidence, or arguments of counsel directed at establishing that Virtual-Only Libraries are barred from asserting any defense that is available to “brick-and-mortar” libraries.


Judge Hubel decided to leave the decision on this request to the court that will be handling the case in the future:

“The court GRANTS the motion to amend, but in doing so makes no ruling with respect to the defendant’s request that if the motion is granted that plaintiff be estopped from making any specific argument for the remainder of the case. That issue will be decided by whichever court handles the case after ruling on the motion to change or transfer venue….


Judge Hubel has now ruled favorably on the Motion to Transfer Venue, and referred his Findings & Recommendations to Article III Judge Michael W. Mosman for approval or the consideration of objections from Penguin.

Attorneys wishing to work on this case in Arizona on a pro bono basis should contact Charles Carreon through this website by filling out a questionnaire.
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