In dueling letters to Judge Louis Stanton, both sides agree that the briefs, the first round of which were filed today -- under seal -- should eventually be unsealed, except for highly sensitive material such as trade secrets. But they dispute the procedure and timing for doing so. Viacom says that summary judgment documents may be filed under seal, with the parties having 14 days to object to unsealing of specific material. At the end of the 14-day period, however, the documents would be unsealed, "with redactions only of specific material for which a party (or third party) has moved for continued sealing." There would be separate 14-day periods for each of the opening, opposition, and reply briefs.
YouTube calls the Viacom proposal a "logistical nightmare" and instead proposes to keep all of the documents completely out of public view until briefing is fully complete, which under the current schedule won't be until June 4, with unsealing (following appropriate redactions) coming 14 days after that. "That will allow the parties to devote their attention to the merits of this case during the briefing period, rather than to a protracted series of disputes over confidentiality," YouTube's letter says.
YouTube is probably right that its proposed procedure would be more efficient for the parties and the court. But so what? The common law and First Amendment right of access to court documents exists for the public -- not the parties or the court. And the law in the Second Circuit could not be clearer: The public has an "immediate" right of access to papers filed in connection with a motion for summary judgment:
We hold that documents submitted to a court in support of or in opposition to a motion for summary judgment are judicial documents to which a presumption of immediate public access attaches under both the common law and the First Amendment. Because the First Amendment presumption gives rise to a higher burden on the party seeking to prevent disclosure than does the common law presumption, the presumption of access here can be overcome only by specific, on-the-record findings that higher values necessitate a narrowly tailored sealing.Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (emphasis added). Two weeks of wholesale sealing of summary judgment papers stretches the limits of "immediate"; more than three months mocks it. See Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1329 ("[E]ach passing day may constitute a separate and cognizable infringement of the First Amendment.") (Blackmun, Circuit Justice 1975).
Viacom's letter properly acknowledges the public interest in quickly unsealing the documents:
Due to the long discovery period during which the record has remained under seal, the public domain has been filled with speculation and false information regarding the facts and issues of this case. Within the entertainment, technology and academic worlds, there understandably exists a pent-up interest in leading the actual facts regarding YouTube's copyright policies and practices and the appropriate legal rules regarding that conduct. Lugosch makes clear that the public has that right.Whatever one's views on the merits of the parties' substantive copyright positions, I think we should all agree that one of the most important copyright cases of the Internet age should be waged in public -- and that inconvenience to the parties, and even the court, is not a valid reason to keep the entirety of the summary judgment record bottled up for months.
Update: YouTube's notice of motion is available here; Viacom's here.