Rescuecom v. Google Pre-Oral Argument Details

By Eric Goldman

We’re anxiously awaiting oral arguments in the Rescuecom v. Google case next week. In advance of that, the court cleaned up a couple of matters:

1) The court denied the amicus brief from Yahoo, AOL and eBay. It didn’t give a reason for bouncing the brief, although sometimes it’s done to avoid a panelist’s recusal.

2) Earlier this week, the court posted the following notice:

“Judge Leval wishes to advise the parties as follows:

1. A year ago Judge Leval was invited by the Stanford Law School to be a participant in a two-day conference at the school focusing on Internet issues, which was to be jointly sponsored and organized by the Stanford Law School and Google, Inc. [Eric’s note: this is the Legal Futures Conference–see the conference website.] The conference, which was held at the Law school on March 7 and 8, 2008, will pay the travel, lodging and board expenses of the participants. The conferees, numbering approximately 50, included professors of law, business, economics and communications, participants the Internet from the profit and not-for-profit sectors, writers, lawyers, government representatives, judges, and Stanford law students. In preparation for the conference, Judge Leval communicated by email with a Google representative concerning the subject matter and organization of a panel in which he would participate (The subject of the panel was unrelated to trademark law or to any other issue involved in this case.). On one evening, the conferees were hosted for dinner by Google at its campus. During the two days, Judge Leval met and chatted briefly with Google representatives who were involved in organizing the conference.

2. Judge Leval has been friendly for nearly twenty years with William Patry, Esq., since the time Mr. Patry was employed in the United States Copyright Office in the Library of Congress and as Copyright Counsel to the US House of Representatives, Committee on Intellectual Property. For approximately the last two years, Mr. Patry has been part of the legal staff of Google (Mr. Patry was not a participant in the Stanford conference).

Judge Leval is confident that these contacts with Google, Inc. Would in no way influence his consideration of the case. If either party wishes to move for Judge Leval`s recusal from consideration the case (or to request further information or clarification), it should submit a letter-motion (or letter requesting such further information) to the Clerk of the Court by 11:00am on Friday March 28.”

Barring such a recusal request, the panel will be Judges Calabresi, Leval and Wesley.

More case resources:

* Commercial Referential Trademark Uses (Rescuecom v. Google Amicus Brief Outtakes)

* Rescuecom reply brief

* Law professors’ brief by Stacey Dogan and me

* Electronic Frontier Foundation amicus brief by Jason Schultz, Corynne McSherry and Fred von Lohmann

* Public Citizen amicus brief by Paul Levy

* eBay/Yahoo/AOL amicus brief by Celia Goldwag Barenholtz, Janet Cullum and others of Cooley Godward Kronish [now mooted]

* Google’s initial brief

* Rescuecom’s initial brief

* District Court’s opinion