Opinion
00 Civ. 0277 (LAK)
July 20, 2000
ORDER
Defendants' previously moved to recuse the undersigned pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455(a) and (b)(2) and "other relevant sections." In an opinion dated July 17, 2000, the Court denied the motion. The Court confirmed that decision, in light of further evidence adduced at trial on July 19, 2000, in an order of the same date.
The Court yesterday was provided by defendants with a copy of a petition, dated July 19, 2000, to the United States Court of Appeals for the Second Circuit for a writ of mandamus directing the undersigned to grant the motion for recusal. The petition asserts, inter alia, that "antitrust issues in the development of" DVDs "is the subject matter of the within litigation . . ." (Pet. 7) Accordingly, the Court has examined the record to determine whether there is any antitrust issue in this case and, if so, whether its presence requires recusal under Section 455(b)(2).
No reference to any antitrust issue was made in defendants' opening at trial or at any point in the first two days of testimony. On July 19, 2000, the day on which the mandamus petition presumably was filed, defendants' counsel sought to inject an antitrust issue into the case in the course of dealing with an objection to an exhibit. The exchange at trial was as follows, according to the draft real-time transcript:
THE COURT: Without discussing the terms of the document which is a license agreement, Mr. Garbus, can you give me a clue without breaching the confidentiality on the public record where you're going with this? OEUFPLT [MR. GARBUS:] just to show that the license exists, the terms of it, it relate to say the antitrust argument.
The bracketed identification of the speaker has been inserted by the Court.
THE COURT:
THE COURT: I don't know that you've made any antitrust arguments, sir.
MR. GARBUS: We have in our answer.
THE COURT: And it is what? That the DVD, the DMCA violates the antitrust laws.
MR. GARBUS: No, that wasn't the argument.
THE COURT: What is the argument?
MR. GARBUS: The argument is that structure of this licensing agreement namely, that the only people that can play like DVDs are people who are also signatories to the DVD cc. A license agreement that there by excludes people like Linux and that that is anterior toe competitive and that's the same argument that was made successfully in the sake today cases, and in the consequence not particular KEBGDZ case and whether or not the DMCA on the floors that or not is an issue that this Court is going to decide.
MR. GOLD: Your Honor, we have.
MR. GARBUS:
MR. GARBUS: That was indicated affirmatively in the answer.
In fact, however, counsel misspoke. The Court has reviewed the answer to the Second Amended Complaint. The only reference it contains to antitrust reads, in its entirety, as follows:
"The Complaint is barred because Section 1201 of the Digital Millenium Copyright Act as interpreted and as applied violates the anti-trust laws of the United States." (Ans. to Sec. Am. Cpt. ¶ 22)
There is no contention that even arguably embraces the argument advanced by counsel in the transcript.
The only relevance, for present purposes, of whether there is an antitrust issue in the case and, if so, what it may be is to Section 455(b)(2). The question is whether the undersigned while in private practice, or a lawyer with whom he then practiced, advised a party to this litigation "concerning the matter" now before the Court. It is perfectly apparent that the antitrust issue purportedly raised in defendants' answer cannot possibly have been a subject of advice to a party by a lawyer with whom the undersigned then was in private practice. The undersigned left private practice on August 22, 1994. The Digital Millenium Copyright Act became law in October 1998. Certainly neither the undersigned nor his private firm could have advised anyone in 1994 as to whether a statute enacted in 1998 violated the antitrust laws. Moreover, it is perfectly obvious that no Act of Congress can violate the antitrust laws. Indeed, it is arguable that the DMCA, if it were inconsistent with the antitrust laws, which were enacted years earlier, would have resulted in a repeal of the antitrust laws to the extent of the inconsistency, although there is no need to address that issue at this point.
Accordingly, the Court again has considered whether recusal is warranted and again concludes that it is not.
SO ORDERED.