Today, Professor Rebecca Tushnet of Georgetown Law (and of 43(B)log fame), represented by Public Citizen, filed motions to intervene and unseal court documents in a trademark dispute in which two companies claim that Amazon infringed their trademark by advertising the companies' product (a dietary supplement called SeroVital) even when the product wasn't available on Amazon — thereby diverting plaintiffs' customers to Amazon.
The district court’s decision denying summary judgment on the trademark infringement claim relied heavily on the numbers of ads Amazon ran, the number of customers who clicked on them, and the percentage of those customers who bought products from Amazon. But all of these numbers are blacked out from the court's opinion, so neither the public nor future litigants can know what the threshold is for a valid claim of this kind. This information and more (including, inexplicably, the plaintiffs' damages demand, among other things) is also blacked out of the parties' summary judgment moving papers and exhibits, which each party moved to file under seal without objection from the other side. The district court granted all the sealing motions within days of filing and without specific findings as to the necessity of sealing.
The First Amendment and common law rights to access court records exist, of course, so that the public can know the law and see how courts arrive at their decisions. Sealing the key facts on which the court relies is clearly inappropriate under both of these rationales, and several circuits have disapproved of sealing judicial opinions (including in Company Doe v. Public Citizen, as we've discussed). Many circuits apply the First Amendment standard (which is more protective of access than the common law) to civil cases and several federal appellate decisions have emphasized the importance of public access in particular to motions for summary judgment, which serves as a substitute for trial. Even when such motions don't dispose of a case entirely, they can drive the resolution of a case: here, within three weeks of the court's summary judgment decision (and on the day the court released the redacted version of the opinion to the public), the case settled.
Although any member of the public has the right to see the unredacted documents we are seeking, Prof. Tushnet, as an intellectual property law expert, has a particular interest in understanding how the law is being applied — and indeed, what the law is. With redactions in place, all she can see are sentences like this one, from the court's opinion: “[T]he focus is … on the [redacted] percent rate that consumers were lured to Amazon’s website. [Redacted] percent, although a relative[ly] small number, is not so insufficient to suggest that there was no likelihood of confusion.”
The case is SanMedica Int'l v. Amazon.com in the District of Utah. Our co-counsel is intellectual property attorney Marian Furst of Salt Lake City.
Kudos to Prof. Tushnet for spotting this case on her blog and for stepping forward to challenge excessive court secrecy.