UNequal Justice & Court Shopping

While I can't talk much about the long conversation from yesterday's conference call with my attorneys -- both New York and Los Angeles -- one of the more interesting conclusions was that had this case been heard here on the West Coast, I would clearly have won. This conclusion is based on written decisions by both the Federal District Courts as well as the Courts of Appeals, namely the Second (New York) and Ninth (West Coast.)

Equally as clear, was the fact that Random House filed against me in New York (rather than engage in a civil conversation) in order to venue-shop for a court most likely to give them a better decision.

Judicial enforcement of copyright infringement law, you see, varies greatly from place to place in America. Federal courts in the East lean toward publishers and denying trials on the facts and merits of a case while federal courts in the West tend to favor allowing trials to move forward and have the disputed facts heard in court -- something that Random House knows is bad for them.

It's also bad for justice when someone can shop around for a court and bad when equal justice can be had in one region but not another. Federal laws are supposed to be consistent from place to place and they are not in this case which (among other factors) results in many of the quirky things I have been blogging about.

Just as cognitive dissonance forces us to reconcile our ways of thinking about things, this judicial dissonance also demands a change.

Fortunately, the American judicial system allows for that. It's called the U.S. Supreme Court.

There is, of course, no guarantee that the Supreme Court would consider my case (called "granting certiorari") in the event that the Second Circuit Court of Appeals upholds the District Court's decision.

However, one of the things the Supreme Court is known for liking is the opportunity to decide a case where it can reduce or eliminate judicial dissonance and make an area of federal law more coherent.

Yes, it's rare that a client actually has a conversation with half a dozen experienced attorneys on both coasts to talk about going after the standard. And yes, it may bankrupt me. My wife and I have discussed that and we're prepared to move forward. Otherwise, what sort of example are we setting for our children? We do not want to teach them to stand up for what is right ... except when it's not personally convenient.

I am heartened when I look at how the Supreme Court has looked at copyright cases it has heard coming out of the Ninth Circuit. While the Ninth Circuit has a reputation for having more decisions overturned by the Supreme Court than any other appeals court, it enjoys the OPPOSITE distinction when it comes to copyright.

We have as long row to hoe here, but there's no alternative. We gotta do the right thing.