Most legal briefs are boring and vaccilating, couched in a thousand maybes and coulds and other qualifiers. Thus, it's a pleasure to read a brief in which a lawyer lays down some muscular, no-nonsense prose in defense of a good cause.
My cow-orker Jason Schultz has just filed a brief in the Southern District Court in the BNETD case, in which Blizzard — a Universal company that makes video games — is suing some hackers who wrote their own free software version of Blizzard's game-server, called bnetd. The arguments from the other side are the height of bogosity, and Jason makes no bones about it in his brief. The prose here positively sings, and is as good a treatise on fair-use reverse engineering as you could hope to read.
First, as discussed in Defendants' opening brief, the dissimilarity between the "BATTLE.NET" and "bnetd project" marks alone warrants summary judgment for the Defendants on Blizzard's Count III. Also weighing heavily in Defendants' favor is the fact that Blizzard has still failed to come forward with any admissible evidence of actual customer confusion. Blizzard's sole set of "evidence" are two hearsay statements in a declaration from Paul Sams, a Blizzard employee. These vague assertions regarding what other unnamed people have said when contacting Blizzard constitutes inadmissible hearsay, and therefore cannot be considered as evidence of actual confusion. Even if these statements were admissible, misdirected communications such as these have been considered in other cases to be "de minimis and to show inattentiveness on the part of the caller or sender rather than actual confusion."
