Example 4.5

Takeaway point 4.5: When a critical authority can be read to help either side, emphasize the ways in which the case supports your client’s position.

Let’s now discuss a common, challenging, and critical scenario that will eventually confront you: how to use cases effectively when they either (1) do not need to be followed or (2) do not address the exact issue implicated by your dispute.

To illustrate this point, we return to the YouTube dispute in which numerous intellectual property owners sued YouTube, claiming that the site infringed their copyrights. Here, YouTube discusses the dominant case, MGM Studios, Inc. v. Grokster Ltd., 545 U.S. 913 (2005), which the Supreme Court had issued several years earlier. This passage shows how to claim ambiguous precedent for your client while undermining key points in your opponent’s argument.

Source: YouTube’s opposition to plaintiffs’ motion for summary judgment from Football Premier Ass’n League Ltd. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010), vacated in part, 676 F.3d 19 (2d Cir. 2012).

The short, sharp heading reminds us that we’re at the summary judgment stage, which means that the district court needed to assess whether Viacom’s claims could succeed as a matter of law. The heading directly addresses the legal burden that confronted YouTube at this stage of the lawsuit.

If you emphasize too many words in a sentence, readers will tire of this technique. But some emphasis is very helpful.

Inexperienced advocates often include two consecutive headings with nothing in between them — bone on bone. By contrast, the prior paragraph in YouTube’s filing exemplifies how to provide an overview of a section, which also provides a bit of cartilage between your headings.

YouTube explained these concepts earlier in its opposition brief. But the lawyers sense that readers need a hint, so they provide one in the next two sentences. Whisper helpful hints and reminders to your readers.

The paragraph ends by foreshadowing what will come in the next two paragraphs: the two “critical respects” in which Viacom’s arguments have diverged from the law. This approach exemplifies how good lawyers telegraph their moves, letting readers know what is coming next.

Notice how aggressively YouTube characterizes the law: the Court did not use the word “must.” The next annotation elaborates on this point.

Reading YouTube’s brief, you might assume that Grokster restricted copyright infringement lawsuits. And yet the Supreme Court in Grokster held 9-0 that a website that allowed users to share music files could be sued for copyright infringement. This whole example reflects my point from the opening of this chapter that great advocates make turf wars about cases look like the law supports their position. Here, to achieve that goal, Youtube focuses on the doctrinal rule rather than the outcome and injects a requirement into Grokster — by using the word “must” — that did not actually appear in the opinion. YouTube stretches the law slightly, but not extravagantly. Your discussions of doctrine, similarly, should emphasize whichever parts of leading cases help your client.

YouTube camouflages a policy argument as a doctrinal point. (Chapter 9 explores policy arguments more closely.) One nit: when briefs promise that they will make a specific number of points, each ensuing paragraph should ordinarily begin with ordinal numbers: thus, this paragraph should probably have begun “Second,....”