Jason 说：

To the Honorable John G. Roberts, Chief Justice of the Supreme Court of the United States：

NOW COMES the Plaintiff-Applicant, Dongxiao Yue, a citizen of the People’s Republic of China, the author of the PowerRPC software, pursuant to United States Supreme Court Rule 23 hereby applies for a Stay of the Or-der of the Northern District of California in the Yue-Sun case below that re-quires him to pay copyright defendants $219,949.90 attorneys’ fees under Section 505 of the U.S. Copyright Act.

Defendants made unlimited copies of Plaintiff’s PowerRPC software. They concealed the software piracy and misled Plaintiff for years. The Dis-trict Court dismissed Plaintiff’s lawsuit and subsequently ordered Plaintiff to pay $219,949.90 of attorneys’ fees to Defendants under 17 U.S.C. §505.

Plaintiff’s motion for stay of the enforcement of the fee award was de-nied at the District Court on November 19, 2008 and denied by the Ninth Circuit on December 5, 2008. Defendants have applied for Writ of Execu-tion/Possession of Personal Property to levy Plaintiff’s assets, primarily his family home.

The Magistrate’s award of attorneys’ fees is contrary to the American Rule established by this Court in 1898, and improperly rewards Defendants’ attorneys for violating the District Court’s Local Rules. The District Court’s refusal to review that Award is contrary to the requirement of F. R. Civ. Proc. Rule 72(b)(3) that it do so. Plaintiff’s right to due process has been denied at key junctures. All of the foregoing errors serve to thwart Congress’s intent in enacting the Copyright Law.

TABLE OF CONTENTS

Facts on Defendants’ Software Piracy 1
Procedural History 2
A. Plaintiff is Likely to Succeed on the Merits of Appeal. 5
1. Awarding fees to software pirates would serve injustice and damage U.S. copyright law. 5
2. Dismissal based on virtual representation ran counter to Supreme Court decision in the case of Taylor v. Sturgell 6
3. Defendants are not prevailing parties for fee award purposes under the Copyright Act because the District Court made no ruling on the merits of the copyright claims 7
4. The fee award was not properly determined because the District Court did not perform de novo review of magistrate judge’s report and recommendation 8
5. Yue was Denied Due Process from the Beginning to the End 9
B. Plaintiff Would be Irreparably Injured Absent a Stay 11
C. A Stay Will Not Substantially Injure the Other Parties 11
D. The Public Interest in Copyright Protection Favors a Stay 11
CONCLUSION 12

TABLE OF AUTHORITIES

Cases
Erickson v. Pardus,
127 S. Ct. 2197, 2200 (2007) 8
Fogerty v. Fantasy, Inc.,
510 U.S. 517 (1994) 6, 8
Goldberg v. Kelly,
397 U.S. 254 9
Kourtis v. Cameron,
419 F.3d 989, 996 (9th Cir. 2005) 6
Massey v. City Of Ferndale,
7 F.3d 506, 510 (6th Cir. 1993) 9
Stewart v. Abend,
495 U.S. 207, 223 (1990) 7
Taylor v. Sturgell,
128 S. Ct. 2161 (June 12, 2008) 6
Torres-Negrón v. J & N Records,
504 F.3d 151, 164 (1st Cir. 2007) 7
Statutes
17 U.S.C. §505 1, 5

Facts on Defendants’ Software Piracy

Since 1994, Plaintiff Dongxiao Yue has been developing the PowerRPC software. In July 1996, when the software was near completion, Yue founded the company Netbula, LLC to market PowerRPC. Yue always owned the copyright of the pre-Netbula PowerRPC code, with U.S. Copyright Registra-tion No. TXu 1-576-987 (the “`987 Copyright”). See Exhibit to Stay, Page A.1. Yue owned other PowerRPC copyrights via a written assignment.

In 2000, defendant StorageTek bought licenses for distributing 1000 copies of the PowerRPC runtime software. Soon afterward, StorageTek in-formed Yue that it had stopped distributing PowerRPC. Unknown to Yue, StorageTek incorporated PowerRPC into a product called LibAttach, and vastly exceeded the 1000-copy limit. Defendants committed the software theft knowingly. On March 2, 2004, Lisa K. Rady, the program manager of the Li-bAttach software, wrote in an internal email:

As you can see, we have exceeded the 1,000 distributions that we had right to with Netbula…. I think it is obvious that engineering has not and did not monitor the distributions on this product.

See A.4. In another email dated March 15, 2004, Thomas J. Murray, Director of Engineering at StorageTek, wrote:

We either need to increase the Netbula license or put a stop-ship on the LibAttach product, because we have shipped LibAttach copies up to the limit of the current Netbula license (Netbula is embedded in our LibAttach product.)

See A.5. On June 28, 2005, responding to an internal report on Sun’s PowerRPC usage, Michael Melnick wrote (A.6):

The number that Holly has provided and thought it may be low causes quite a problem for you… You will need to order additional distribution rights or we will be in breach of the agreement.

Despite its managers’ full knowledge of the unauthorized copying of the PowerRPC software, Sun went on to grant its customers the right to make unlimited copies of PowerRPC, while concealing the piracy from Plain-tiff. An internal Sun project management document admitted that the Pow-erRPC software “has been copied, uncontrolled, for several years.” A.7. As a result, Sun caused unlimited distribution of PowerRPC by third parties. The First Amended Complaint gave detailed evidence, such as the email ex-changes among the individual defendants

Jason 说：

http://www.american-justice.org/upload/page/67/39/08-17034-open-brief-filed-ECF-copy.pdf

Federal Rule of Civil Procedure 54 (d)(2)(D) authorizes that “[b]y local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings.” Civil Local Rule 54-6 (b) of the district court requires that “the motion for attorney fees must be supported by declarations or affidavits containing the following information”:

A statement that counsel have met and conferred for the purpose of attempting to resolve any disputes with respect to the motion or a statement that no conference was held, with certification that the applying attorney made a good faith effort to arrange such a conference, setting forth the reason the conference was not held.

Civil Local Rule 54-6 (b), Northern District of California. Defendants did not meet and confer with Plaintiff about their fee motion, and they did not file any declaration or affidavit stating that they attempted the same.
Defendants sought $92,000 of attorneys’ fees in their March 18, 2008 fee motion. ERV2.194. In their reply brief filed on April 8, 2008, they asked for an additional $42,000 (the total amount in their spreadsheet was $42,863.50). ERV2.187. On July 23, 2008, the day after the hearing of the fee motion before the magistrate judge, Defendants filed a supplemental declaration, alleging that they incurred an additional $87,000.00 (the total amount in their spreadsheet was $87,458.00). ERV2.112.

As the procedure history shows, Yue was not afforded any opportunity to meet-and-confer with Defendants on their $92,000 and subsequent $42,000 fee demand. The Local Rule 54-6 requires meet-and-confer to resolve disputes and reduce costs, but Defendants failed to follow the local rule.

As for the $87,000, Plaintiff simply could not have a chance to contest these fee demands. It was submitted to the district court in a supplemental declaration after the hearing of the fee motion.
Moreover, it was not until July 23, 2008 that the Court granted attorney Elena Rivkin’s motion to withdraw. ERV1.27-8. Therefore, prior to July 23, 2008, Yue was officially represented by attorney Rivkin at the district court. Yet, on March 18, 2008, Defense counsel initiated direct communication with Plaintiff on the Yue-Sun case. ERV2.112.

C. Defendants’ Fee Motion Should Have Been Denied for Failure to Comply with Mandatory Local Rule

17. The Northern District Civil Local Rule 54-6 was unambiguous and enforceable
Defendants failed to comply with Civil Local Rule 54-6 (b) of the district court, which requires that that counsel meet-and-confer “for the purpose of attempting to resolve any disputes with respect to the motion…” Because of Defendants’ failure to meet-and-confer, Plaintiff lost the opportunity to contest the fee demand and reduce expenses. Also, Defendants’ failure placed additional burden on the courts and created satellite litigation on their massive “fees upon fees” and their failure to comply with the local rule.
Defendants’ main argument was that they should not be held accountable for an “oversight on [their] counsel’s part.” See, Defendants’ Opposition to Motion to Strike, Doc. No. 127 below, p.8:10-11; cf. ERV2.117. But, defense counsel billed over $20,000.00 in preparing and researching Defendants’ fee motion. Oversight after spending so much time is not a valid excuse.

The magistrate judge concluded that the word “counsel” in the Civil Local Rule was “somewhat ambiguous” on whether it applies to cases where one party is a pro se. ERV1.13. However, in other parts of the Local Rules of the Northern District of California, the word “counsel” is used throughout to mean an attorney or a self-represented party. See, e.g, Civil Local Rules 30-2(b) (1), 37-1(a), 16-3, 16-9(a), 16-10(a), 16-10(b)(5), 16-10(c), 65-1(b). The district court did not cite any case where a self-represented party must be treated differently in this context, nor did it provide a rationale for treating a pro se litigant differently in the context of Local Rule 54-6.

Moreover, by definition, the word “counsel” includes a self-represented party. “Litigants in federal court have a statutory right to choose to act as their own counsel,” Machadio v. Apfel, 276 F.3d 103, 106 (2d Cir. 2002). “Basic rules of courtroom protocol and procedure impose an obligation, both on counsel and on individuals acting as their own counsel, to comply with court rules…” U.S. v. GOMEZ-ROSARIO, 418 F.3d 90, 101 (1st Cir. 2005). See also, JONES v. WALKER, 496 F.3d 1216, 1220 (11th Cir. 2007) (“Jones was ordered to proceed as his own counsel.”). The district court’s July 23, 2008 substitution of counsel order referred to Yue as “new counsel of record.” ERV1.28.

Because Defendants failed to make any effort to meet and confer with Plaintiff, their motion for attorneys’ fees was defective — it was missing a required component per local rule. “[O]verlooking the defect of this document would only serve to whittle away at the rules and ultimately render them meaningless and unenforceable.” Riley v. Northwestern Bell Telephone Co., 1 F.3d 725, 729 (8th Cir. 1993).

Defendants’ failure to comply with Local Rule 54-6 was highly prejudicial to Plaintiff. Their fee motion should be denied.

18. Even if the Northern District Civil Local Rule 54-6 was ambiguous or otherwise unenforceable, it was unreasonable to require Yue to pay over $10,000 for help identifying the ambiguity in the rules

Even if the Northern District Civil Local Rule 54-6 was ambiguous or otherwise unenforceable, with the ambiguity identified, the district court can make the rules better in the future by eliminating the ambiguity.

Neither the ambiguity in the Local Rules nor the “oversight on [defense] counsel’s part” was Plaintiff’s fault. As a first time pro se litigant, Plaintiff had reason to assume that the Local Rules must be well defined, unambiguous and enforceable. Forcing Plaintiff to pay Defendants over $10,000 in fees for litigating the motion to strike Defendants’ motion due to their failure to comply with the rules is unfair.