Court Orders Blue Spike to Explain Why It's Keeping the Public in the Dark

In a victory for the First Amendment and public access to court proceedings, a magistrate judge ruled in favor of EFF’s motion to unseal documents in a patent case in the Eastern District of Texas. This means that the patent owner in that case, Blue Spike, will no longer be able to shield from the public its arguments about how the defendant infringes its patents. Also, the court has indicated that it will publish public versions of important rulings that, until now, had been completely hidden from the public.

In March, we moved to intervene in this case arguing that the parties’ practice of filing significant documents under seal violated the public’s First Amendment right to access court filings. In April, the court allowed EFF to intervene and asked for more briefing regarding whether any material should be unsealed.

In its response, Blue Spike did not dispute that the First Amendment applied. Instead, it argued that because EFF wanted to write more blog posts about Blue Spike—posts Blue Spike felt were disparaging—the public should not be allowed to examine Blue Spike’s claims of infringement. In other words, because Blue Spike does not agree with EFF’s commentary about its litigation, it contends that we (and the public at large) should not see the relevant court records at all.

This argument is exactly backwards. As we pointed out in our response, EFF's speech (or indeed, any member of the public's speech) regarding Blue Spike's patent litigation is precisely what the First Amendment protects. The fact that Blue Spike thinks the public and press will be interested in discussing what's in court records actually confirms that they should generally be open to the public.

As was written recently by United States Magistrate Judge Smith, the rise of sealing in judicial cases (not only patent cases) is like “a velvet curtain is being drawn across wide swaths of traditionally public judicial business” and “absent good public information about what courts are doing, justice and the rule of law are left groping in the dark.”

The court’s ruling requires the parties to file public-redacted versions of court filings that were previously completely under seal. Although the parties will be given an opportunity to make limited redactions of genuinely confidential material (like trade secrets), the court has made it clear that it expects such redactions to be quite limited.

We’re gratified that the court promptly granted our motion to unseal. We look forward to reporting more on Blue Spike’s litigation and what it tried so desperately to hide from the public.