ESTTA Tracking number:
`
`ESTTA1306998
`
`Filing date:
`
`08/30/2023
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`92066968
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`Software Freedom Law Center
`
`SEAN P MCMAHON
`SEAN P. MCMAHON, PLLC
`100 WARREN STREET, SUITE 343
`MANKATO, MN 56001
`UNITED STATES
`Primary email: sean@mcmahonpllc.com
`507-519-2245
`
`Opposition/Response to Motion
`
`Sean P. McMahon
`
`sean@mcmahonpllc.com
`
`/SPM/
`
`08/30/2023
`
`20230830 P Opposition to R Construed Motion for Protective Order.pdf(1729630
`bytes )
`
`

`

` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
` SOFTWARE FREEDOM LAW CENTER,
`
` Petitioner,
`
` Cancellation No. 92066968
`
` v.
`
` SOFTWARE FREEDOM CONSERVANCY,
`
` Respondent.
`
` PETITIONER’S OPPOSITION TO
` RESPONDENT’S CONSTRUED MOTION FOR PROTECTIVE ORDER
`
` Petitioner, Software Freedom Law Center, by its counsel, hereby submits its opposition to
`
` Respondent’s construed Motion for a Protective Order (120 TTABVUE) and the Supplemental
`
` Memorandum in Support of Motion for Protective Order (“Respondent’s Motion”) (122
`
` TTABVUE) seeking the exclusion of Prof. Eben Moglen (“Prof. Moglen”) from attending and
`
` taking the depositions of Karen Sandler (“Sandler”) and Bradley Kuhn (“Kuhn”).
`
` Submitted herewith as Exhibit 1 is the Declaration of Eben Moglen and accompanying
`
` exhibits..
`
` PROCEDURAL HISTORY & INTRODUCTORY REMARKS
`
` Petitioner assumes the Board’s familiarity with the lengthy procedural history of this
`
` proceeding, particularly with respect to the numerous motions filed in connection with the
`
` depositions of Sandler and Kuhn.
`
` 1
`
`

`

` The discovery depositions of Sandler and Kuhn were noticed on October 14, 2019 and
`
` February 24, 2021 respectively. Respondent claims that it has never challenged Petitioner’s right
`
` to take the depositions of Sandler and Kuhn. Yet, Respondent has done everything in its power
`
` to delay and prevent those depositions from taking place, even in the face of several admonitions
`
` from the Board. For example, in the Board's November 12, 2021 Order granting Petitioner’s
`
` Motion to Compel the Sandler and Kuhn depositions, the Board wrote “ Any attempted
`
` gamesmanship in scheduling or attending the depositions will not be tolerated .”
`
` 78
`
` TTABVUE at 10 n.21 (emphasis in original). More recently, in its order of March 6, 2023, the
`
` Board wrote that it “highly discourages this type of piecemeal litigation” when addressing
`
` “ another” motion proposed by Respondent. 107 TTABVUE at 9 (emphasis in original). Then,
`
` in its most recent order of July 21, 2023, the Board wrote,
`
` The Board notes that, regardless of whether Respondent’s decisions not to file a
` motion or cross-motion for a protective order were well-intentioned or its
` previous positions pretextual (which the Board need not determine here),
` Respondent made several tactical decisions to foreshadow the motion in an effort
` to color its other filings while keeping it’s powder dry for another chance at
` preclusion. Respondent’s piecemeal approach has resulted in unnecessary delay
` and taxed the Board’s scarce resources. Respondent should not, therefore,
` interpret the Board’s exercise of discretion to consider a motion in this instance as
` condoning of Respondent’s strategy.
`
` 120 TTABVUE at 6, n.20.
`
` Thus, on multiple occasions the Board has criticized the strategy of Respondent and its
`
` conduct in this proceeding.
`
` But, as shall be demonstrated herein nothing has changed with
`
` respect to Respondent’s strategy. Respondent continues to invoke the now tired strategy of delay
`
` and procrastination with respect to the discovery depositions of Sandler and Kuhn.
`
` The sole
`
` purpose of the construed Motion for a Protective Order is for one purpose only - delay. It is now
`
` 2
`
`

`

` time for the Board to let Petitioner take its depositions without any further delay and move this
`
` proceeding along. This proceeding was filed on September 22, 20217 and, to date, not a single
`
` discovery deposition has been taken.
`
` .
`
` LEGAL DISCUSSION
`
` Inter partes proceedings before the Board are governed by the Federal Rules of Civil
`
` Procedure, except as otherwise provided in the Trademark Rules of Practice, and "wherever
`
` applicable and appropriate."
`
` T.B.M.P. § 101.02; see also 37 C.F.R. § 2.116(a).
`
` Thus, the
`
` provisions of Fed. R. Civ. P. 26(c)(1) are applicable to the Sandler and Kuhn depositions. But,
`
` while it may be within the Board’s inherent authority to issue an order to protect a party or
`
` person from annoyance, embarrassment, oppression, or undue burden or expense, which includes
`
` the designation of person who may be present while discovery is conducted, the law does not
`
` support the issuance of a protective order here to prevent Prof. Moglen from attending or taking
`
` the depositions of Sandler and Kuhn.
`
` Respondent asks the Board to believe that the good cause standard set out in Fed. .R. Civ.
`
` P. 26(c)(1) is quite low and easily met. However, contrary to what Respondent asks the Board to
`
` believe, the bar is actually quite high and requires a showing of particular and specific facts
`
` pointing to the need for a protective order. Furthermore, Fed. R. Civ. P. 26(c)(1) is also not an
`
` appropriate vehicle to disqualify an attorney from acting for a company that he created and is
`
` currently an officer.
`
` Disqualification of counsel conflicts with the general policy favoring a
`
` party’s right to representation by counsel of choice.
`
` 3
`
`

`

` Respondent relies upon seemingly convenient quotations from various authorities to
`
` support its contention that Mr. Moglen should be excluded from the Sandler and Kuhn
`
` depositions in any manner.
`
` But, they are unavailing and, in fact, distinguishable when the
`
` specific circumstances of those cases are considered.
`
` In DeLuca v. Gateways Inn, Inc. , 166 F.R.D. 266 (D. Mass. 1996), Plaintiff indicated in
`
` its papers that it did not intend to call the deponent in question at trial. Thus, to rely upon the
`
` fact that the court saw no reason his attendance at the deposition “would in any way be necessary
`
` to [his] right to make out his defense” is misleading in the context of this matter.
`
` Similarly, the facts of
`
` Laul v. Los Alamos Nat’l Labs, 2017 WL 5129002 (D. N.M.
`
` 2017), a case concerning employment discrimination and unlawful termination, demonstrates no
`
` pertinent association to the facts of this case. In Laul the deponent in question was the wife of a
`
` company director employed in an non-management capacity and the record reflected that the
`
` Plaintiff had confrontations with the deponent about his employment with the Defendant. The
`
` record reflected that the Plaintiff had visited Zumba classes at which the deponent attended
`
` where he asked questions about the deponent, suggesting that Plaintiff was stalking the deponent.
`
` No such facts exist in this case and Respondent’s reliance upon Laul serves no purpose
`
` whatsoever other than to distract the Board.
`
` Respondent’s reliance on Galella v. Onassis, 487 F.2d 986 (2nd Cir. 1973), is also
`
` blatantly misleading in the face of the actual facts.
`
` Respondent included two quotes in its
`
` submission to the Board. First, Respondent stated that Plaintiff’s past conduct “could be deemed
`
` 4
`
`

`

` to both an irrepressible intent to continue to [his] harassment of [Mrs. Onassis] and his complete
`
` disregard for judicial process” and “[a]nticipation of misconduct during the examination could
`
` reasonably have been founded on either.” But, Respondent conveniently left out the fact that at
`
` the time the protective order was issued, Plaintiff had already been charged with violation of the
`
` court's temporary restraining order which was entered to protect the defendant from further
`
` harassment. There are no restraining orders in place here and Respondent’s reliance upon this
`
` authority is disingenuous and misleading. Reliance on Galella only serves to distract the Board
`
` from seeing Respondent’s true objective of delay and avoidance.
`
` Apart from Respondent’s distracting review of case law on protective orders, Respondent
`
` entirely ignores the fact that courts require specific facts that establish serious, well-founded
`
` concern that coercion will, in fact, occur absent restrictions.
`
` Rule 26(c)'s requirement of a
`
` showing of good cause to support the issuance of a protective order mandates that " [t]he burden
`
` is upon the movant to show the necessity of its issuance, which contemplates a particular and
`
` specific demonstration of fact as distinguished from stereotyped and conclusory statements." In
`
` re Terra Int’l, Inc. , 134 F.3d 302, 305 (5th Cir. 1998) ., quoting , United States v. Garrett , 571 F.2d
`
` 1323, 1326 n. 3 (5th Cir. 1978); see also 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER
`
` AND RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2035, at 483-86
`
` (2d ed.1994). "Broad allegations of harm, unsubstantiated by specific examples or articulated
`
` reasoning, do not satisfy the Rule 26(c) test." Cipollone v. Liggett Group, Inc ., 785 F.2d 1108,
`
` 1121 (3d Cir. 1986), cert. denied , 484 U.S. 976 (1987); Tuszkiewicz v. Allen Bradley Co ., 170
`
` F.R.D. 15, 16-17 (E.D. Wisc. 1996) (protective order denied where there were no "distinct facts
`
` 5
`
`

`

` that would lead thc court to conclude that the witnesses cannot be trusted to tell the truth or that
`
` their attending each other's depositions will otherwise affect their testimony").
`
` As shall be set forth below, the record in this case fails to establish any serious harm will
`
` occur with respect to either Sandler or Kuhn that would justify the issuance of a protective order
`
` under Fed. R. Civ. P. 26(c)(1). Nor is there any authority that Fed. R. Civ. P. 26(c)(1) can be
`
` used as a means to disqualify counsel, especially one who formed the very organization that
`
` initiated this proceeding.
`
` PROFESSOR EBEN MOGLEN
`
` Prof. Moglen is a distinguished member of the legal profession with a long, storied and
`
` distinguished career. Prof. Moglen serves as professor of law at Columbia Law School in New
`
` York, where he has taught since 1987. Declaration of Eben Moglen (“Moglen Declaration”),
`
` Paragraph 1. Prof. Moglen was admitted to practice law in the State of New York in 1988.
`
` Moglen Declaration, Paragraph 2.
`
` Prof. Moglen had the privilege of clerking for Justice
`
` Thurgood Marshall of the United States Supreme Court.
`
` Id.
`
` Few lawyers enjoy such a
`
` distinction. Prof. Moglen’s history and accomplishments are amply detailed in his declaration
`
` submitted herewith.
`
` The history of Petitioner and Respondent are also more fully forth in the Moglen
`
` Declaration for the benefit of the Board, along with a summation of events leading up to the
`
` filing of this proceeding almost six years ago.
`
` 6
`
`

`

` THE SANDLER DEPOSITION
`
` As to the Sandler deposition, Respondent relies upon the Declaration of Karen M.
`
` Sandler in Support of Respondent’s Motion for a Protective Order (“Sandler Declaration”) and
`
` Supplemental Declaration of Karen M. Sandler in Support of Respondent’s Motion for Protective
`
` Order (“Supplemental Sandler Declaration”).
`
` Initially, Petitioner wishes to call to the attention of the Board that
`
` Exhibit 3 of the
`
` Sandler Declaration and Exhibit 4 of the Supplemental Sandler Declaration constitutes
`
` impermissible hearsay. Thus, Petitioner objects to Exhibit 3 of the Sandler Declaration and
`
` Exhibit 4 of the Supplemental Sandler Declaration .
`
` It would be clear error for the Board to
`
` rely upon Exhibit 3 of the Sandler Declaration and Exhibit 4 of the Supplemental Sandler
`
` Declaration in any capacity whatsoever. The e-mail communications upon which Sandler relies
`
` are classic, textbook, examples of out of court statements offered to prove the truth of the
`
` contents.
`
` Petitioner has been given no ability to cross examine the senders of those
`
` communications so that the Board could evaluate the credibility of the statements made in those
`
` communications.
`
` Accordingly, Exhibit 3 of the Sandler Declaration and Exhibit 4 of the
`
` Supplemental Sandler Declaration must be given no consideration whatsoever.
`
` Sandler does not dispute that she was employed in various roles at Petitioner.
`
` 109
`
` TTABVUE 33. Sandler was also Prof. Moglen’s student in her first year of law school. Moglen
`
` Declaration, 9 n.1. The Board will likely note that the Sandler Declaration and Supplemental
`
` Sandler Declaration fail to state any specific examples of aggressive behavior or harassment by
`
` Prof. Moglen during her time as a student of Prof. Moglen or during her employment with
`
` 7
`
`

`

` Petitioner. Instead, Sandler frivolously uses hearsay, innuendo and mere gossip to support her
`
` contentions about Prof. Moglen.
`
` Sandler claims that if Prof. Moglen is present at her deposition she would be
`
` “consistently conscious of his presence.”
`
` 122 TTABVUE 25.
`
` Sandler claims that
`
` she is
`
` “concerned” about her ability to recall information and articulate herself if Prof. Moglen is
`
` present at her deposition. Id. at 26. But, Sandler concedes that she will “certainly do [her] best
`
` in any circumstance.” Id.
`
` Indeed, Sandler did just so---in an unbroken atmosphere of mutual
`
` respect---in classroom and law practice, for years.
`
` Respondent has not met its burden in seeking to have Prof. Moglen excluded from
`
` Sandler’s deposition. Respondent has failed to allege or even demonstrate the possibility of any
`
` harm, let alone serious harm, could stem from Prof. Moglen’s attendance at Sandler’s deposition.
`
` As Prof. Moglen stated, “[p]ut in simpler but not less accurate words, their testimony is they are
`
` afraid.”
`
` Moglen Declaration, Paragraph 22.
`
` But, the standard for excluding a party, or
`
` disqualifying an attorney, from a deposition is not measured by how afraid or scared one may be
`
` of the person conducting the examination.
`
` Being afraid or scared falls into the category of
`
` “ boilerplate 'good cause' facts which will exist in most civil litigation.” See, e.g., In re Terra
`
` Int’l, Inc. , 134 F.3d 302, 305 (5th Cir. 1998). It is fair to say that being afraid, scared or anxious
`
` would apply equally to anyone being deposed in civil litigation. In any event, Sandler herself
`
` concedes that Prof. Moglen’s attendance at her deposition is inevitable by stating that she would
`
` do her best in any circumstance. Thus, Petitioner submits that the Board should allow Sandler to
`
` do just that.
`
` 8
`
`

`

` THE KUHN DEPOSITION
`
` Respondent relies upon the Declaration of Declaration of Bradley M. Kuhn in Support of
`
` Respondent’s Motion for a Protective Order (“Kuhn Declaration”) and Supplemental Declaration
`
` of Bradley M. Kuhn (“Supplemental Kuhn Declaration”).
`
` Initially, Petitioner wishes to call to the attention of the Board that
`
` Exhibit 1 of the
`
` Supplemental Kuhn
`
` Declaration constitutes impermissible hearsay and improper expert
`
` testimony. Thus, Petitioner objects to Exhibit 1 of the Supplemental Kuhn Declaration .It
`
` would be clear error for the Board to rely upon Exhibit 1 of the Supplemental Kuhn Declaration
`
` in any capacity whatsoever. The communication upon which Kuhn relies is a classic, textbook,
`
` example of out of court statements offered to prove the truth of the contents.
`
` Furthermore, to
`
` the extent that Kuhn purports to introduce the correspondence from Ms. Rensmith as expert
`
` testimony, it would be clear error for the Board to rely upon the report without permitting
`
` Petitioner to have an independent psychological examination of Kuhn obtained by a licensed
`
` practitioner of its choice. Petitioner has not been able to cross examine Ms. Rensmith on the
`
` subject matter of her communication.
`
` For example, Ms. Rensmith does not state she has
`
` rendered a clinical diagnosis of Kuhn and Petitioner has not been able to challenge Ms.
`
` Rensmith’s credibility or qualifications, especially on account of the fact that Ms. Rensmith’s
`
` e-mail address on her correspondence is “ heather@switchonsextherapy.com .” 122 TTABVUE
`
` 21. Indeed, Ms. Rensmith’s website states “[a]s a sex and relationship therapist, I am not often
`
` primarily treating mental health concerns and do not have a diagnosis for our treatment.” See
`
` Exhibit
`
` 2
`
` submitted
`
` herewith,
`
` which
`
` consists
`
` of
`
` a
`
` printout
`
` from
`
` 9
`
`

`

` https://www.switchonsextherapy.com/faq accessed on August 30, 2023. Accordingly, Exhibit 1
`
` of the Supplemental Kuhn Declaration must be given no consideration whatsoever.
`
` Like Sandler, Kuhn frivolously uses hearsay, innuendo and mere gossip to support his
`
` contentions about Prof. Moglen. Kuhn claims that he suffers from post traumatic stress disorder
`
` (PTSD) and attempts to insinuate, in both the Kuhn Declaration and Supplemental Kuhn
`
` Declaration, that his PTSD is somehow connected to Prof. Moglen.
`
` But, Kuhn also
`
` acknowledges that his mental health issues are rooted elsewhere. 122 TTABVUE 18; see also
`
` 109 TTABVUE 16.
`
` Kuhn recounts a number of events in his declarations to persuade the Board that Prof.
`
` Moglen has been abusive towards him. For example, Kuhn indicated that on March 25, 2017 he
`
` attended a conference at which Prof. Moglen was speaking. 109 TTABVUE 16. Then, Kuhn
`
` recalled a story told by Prof. Moglen about his [Moglen’s] mother. Id. at 17. Kuhn claims that
`
` he believes that the story told by Prof. Moglen was to “continue his verbal abuse” towards him.
`
` Id.
`
` Kuhn submitted an 8 second clip of Prof. Moglen’s remarks to the Board via DVD
`
` submission.
`
` 122 TTABVUE 19; see also 123 TTABVUE. The Board can hear from Prof.
`
` Moglen in his own words and can easily see and hear that his remarks were not directed at
`
` anyone in particular. Moreover, the crowd responds with laughter. Simply put, for some reason,
`
` Kuhn chooses to believe that the remarks were insensitive, directed towards him and constituted
`
` verbal abuse. But, the record does not support that contention.
`
` 10
`
`

`

` Despite Kuhn’s recollection of events in his declarations, some of which occurred over 13
`
` years ago during his employment with Petitioner, Kuhn fails to state any harm that could result
`
` from Prof. Moglen’s attendance at his deposition. Kuhn wrote that if Prof. Moglen is present
`
` during his examination that “I am unlikely to be able to testify.” 122 TTABVUE 18. Kuhn
`
` claims that if he begins to experience a PTSD flashback that he “will not be able to understand
`
` and be responsive to the current questions during deposition.” Id. Kuhn fails to allege that any
`
` harm would occur if Prof. Moglen is present for his examination. Instead, Kuhn states that it
`
` would be difficult for him to concentrate. As Prof. Moglen stated in his declaration, even if you
`
` grant Kuhn, arguendo , his concentration difficulties, the essence of his testimony is that he is
`
` afraid.
`
` Moglen Declaration, Paragraph 22. Kuhn has not alleged that Prof. Moglen’s presence
`
` at his examination would pose any risk to his safety. Kuhn has merely alleged concentration
`
` difficulties.
`
` Respondent’s Motion claims that there is a chance that the deposition could come to a
`
` complete halt. 122 TTABVUE 5. But, that is a mere conclusory statement, unsupported by any
`
` fact or evidence. Indeed, Kuhn has not identified a single incident of being unable to respond to
`
` a question or form a coherent statement due to an alleged “PTSD flashback.”
`
` Such broad,
`
` conclusory statements are insufficient to form the basis of a protective order.
`
` As noted above, the standard for excluding a party, or disqualifying an attorney, from a
`
` deposition is not measured by how afraid or scared one may be of the person conducting the
`
` examination.
`
` Being afraid or scared falls into the category of “boilerplate 'good cause' facts
`
` which will exist in most civil litigation.” See, e.g., In re Terra Int’l, Inc ., 134 F.3d 302, 305 (5th
`
` 11
`
`

`

` Cir. 1998). It is fair to say that being afraid, scared or anxious would apply equally to anyone
`
` being deposed in civil litigation.
`
` Kuhn recounts events in his declarations that he claims
`
` demonstrate abuse and harassment.
`
` While Prof. Moglen disagrees with the manner in which
`
` Kuhn recalls those events, Kuhn nevertheless has failed to state how Moglen’s presence at his
`
` deposition would cause any harm or pose any risk to him whatsoever.
`
` CONCLUSION
`
` Respondent has failed to carry its burden in seeking the exclusion of Prof. Moglen in any
`
` manner from the depositions of Sandler and Kuhn. Neither Sandler or Kuhn have claimed that
`
` they will be harmed in any way by Prof. Moglen’s presence at their depositions (either as an
`
` attendee or counsel taking the depositions) except to say that they will have concentration
`
` difficulties. Neither Sandler or Kuhn have provided any specific details about being unable to
`
` speak or the risks to their safety. The standard for excluding a party, no less an officer of the
`
` court, or disqualification of counsel from a deposition is much higher than Respondent asks the
`
` Board to believe. Respondent has not established any basis for the exclusion of Prof. Moglen in
`
` any manner under Fed. R. Civ. P. 26(c)(1). Nor is there any authority for disqualification of Prof.
`
` Moglen as counsel for the entity he created and is an officer under Fed. R. Civ. P. 26(c)(1).
`
` Instead, Respondent’s Motion should be seen by the Board for exactly what it is.
`
` Respondent’s Motion is just another vehicle for delay; a constant and unremitting effort to avoid
`
` answering questions under oath. Perhaps the most troubling part of Respondent’s Motion is that
`
` it asks the Board for an extraordinary remedy fatally founded in hearsay, innuendo, gossip and
`
` unsworn expert testimony rendering the motion utterly frivolous. Respondent knew, or ought to
`
` 12
`
`

`

` have known, better than to ask for such a remedy founded in frivolity. It is for this very reason
`
` that Fed. R. Civ. P. 11 exists.
`
` After years of obstruction, the simplicity of this last frivolous motion is clarifying.
`
` Sandler and Kuhn are afraid to sit across the table from Prof. Moglen, who taught and trained
`
` them, and answer his questions under oath. Respondent, a New York non-profit, should produce
`
` its officers in New York City, on days of Petitioner’s choosing, for questioning by counsel of
`
` Petitioner’s choice, forthwith. Moglen Declaration, Paragraph 27 . Petitioner will also require an
`
` additional half day with each witness to inquire into statements made in declarations under oath
`
` by these witnesses in connection with the present motion. Sandler and Kuhn have delayed for
`
` years, dragging behind them the reputation of the charity they control. Now it should end. As
`
` noted by Prof. Moglen, it is now time to end this “litany of delay, cost, and obstruction.” Id.
`
` Dated:
`
` August 30, 2023
` Mankato, Minnesota
`
` Respectfully submitted,
`
` Sean P. McMahon
`
` S EAN P. M C M AHON , PLLC
`
` 100 Warren Street, Suite 343
` Mankato, Minnesota 56001
` Tel: (914) 844-3796
` (507) 519-2245
`
` Attorney for Petitioner
`
` 13
`
`

`

` CERTIFICATE OF SERVICE
`
` I hereby certify that the foregoing PETITIONER’S OPPOSITION TO
`
` RESPONDENT’S CONSTRUED MOTION FOR PROTECTIVE ORDER was served upon
`
` Respondent this 30th day of August, 2023, by emailing a copy thereof to its counsel at
`
` jlwtrademarks@wolfgreenfield.com:
`
` JOHN L. WELCH
` WOLF, GREENFIELD & SACKS, P.C.
` 600 ATLANTIC AVENUE
` BOSTON, MA 02210
` UNITED STATES
` jlwtrademarks@wolfgreenfield.com
`
` Dated: August 30. 2023
`
` ______________________________
` Sean P. McMahon
`
` 14
`
`

`

` Exhibit 1
`Exhibit 1
`
`

`

` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
` SOFTWARE FREEDOM LAW CENTER,
`
` Petitioner,
`
` Cancellation No. 92066968
`
` v.
`
` SOFTWARE FREEDOM CONSERVANCY,
`
` Respondent.
`
` DECLARATION OF EBEN MOGLEN
`
` I, Eben Moglen, declare as follows:
`
` 1. I am Professor of Law at Columbia Law School, where I have taught since 1987. In
`
` 2005, I founded Petitioner Software Freedom
`
` Law Center, Inc. (referred to herein as
`
` either “Petitioner” or “SFLC”), of which I am President and Executive Director. In 2006,
`
` I founded Respondent Software Freedom Conservancy (“SFC”). I make this declaration
`
` in opposition to Respondent SFC’s construed Motion for a Protective Order to prevent
`
` and disqualify me from attending and taking the depositions of Karen M. Sandler
`
` (“Sandler”) and Bradley Kuhn (“Kuhn”) in this cancellation proceeding.
`
` 2. I am currently 64 years old. I was educated at Swarthmore College (BA, High Honors,
`
` 1980) and Yale University (JD, MPhil,
`
` 1985; PhD (History, with distinction), 1993),
`
` where I simultaneously took a law degree and a PhD in American History. During law
`
` school I worked for the IBM law department and at the law firm of Cravath, Swaine &
`
` Moore. After graduating I clerked for Judge Edward Weinfeld of the Southern District of
`
` New York and Justice Thurgood Marshall of the United States Supreme Court. I was
`
` (cid:1005)
`
`

`

` admitted to the New York Bar in 1988, and to the United States Supreme Court Bar, on
`
` the motion of the late Justice Harry A. Blackmun, in 1991.
`
` I was promoted to full
`
` professor at Columbia in 1994, and have served as visiting professor at the law faculties
`
` of Tel-Aviv University, the University of Virginia, and Harvard University.
`
` 3. I began working as a professional computer programmer at the age of 14 in 1973. Skilled
`
` work paid for my higher education.
`
` From 1979 until I began federal employment in
`
` 1985, I was---in addition to my law and graduate school programs---employed as a
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` designer and implementer of advanced computer programming languages at IBM's Santa
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` Teresa Laboratory and Yorktown Research Center.
`
` Though my living has since been
`
` earned at another trade, I have remained for half a century an architect and maker of
`
` software, a tinkerer building and running hardware and networks of my own design, and
`
` so on.
`
` 4. Though I have published and lectured widely on legal history subjects, the focus of my
`
` practice throughout nearly forty years has been on issues of political freedom and digital
`
` technology. Since the beginning of my academic career, I have tried to put my unique
`
` upbringing and set of knowledges to work---supported by the stability and protection of
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` academic tenure---strengthening, for the very long term, ideas and institutions that would
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` use software to preserve and protect individual human freedom. I saw this as the urgent
`
` project of my lifetime, because I foresaw that other forces would use software as an
`
` instrument to destroy individual human freedom altogether.
`
` 5. I therefore tried to assist the---initially very small---number of people who shared my
`
` concerns. From 1991-95 I helped the path-breaking programmer, Philip R. Zimmerman,
`
` whose Pretty Good Privacy (PGP) brought truly strong encryption to every user, stare
`
` (cid:1006)
`
`

`

` down criminal prosecution in the United States.
`
` Therefore, real digital encryption
`
` available to everyone flourished throughout the Net in the Free World. Beginning in
`
` 1993, I turned Richard Stallman's revolutionary GNU General Public License (GPL) and
`
` its fundamental concept of ``copyleft" into a globally respected system of "share and
`
` share alike" relationships between computer software and copyright law. That practical
`
` legal innovation transformed the global software industry, unleashing competition and
`
` innovation that ultimately came to be worth trillions of dollars. Following the thought of
`
` Elinor Ostrom---one of the 20th century's greatest economists and the first woman
`
` economist thought worthy of the Nobel Prize---I showed how the world's largest IT
`
` businesses as well as the smallest could benefit from the rich ecology of ``free software"
`
` commons, living under the familiar principle ``from each according to inclination and
`
` ability, to each according to need."
`
` (cid:1010).
`
` By 2005, the value of the ideas I represented, both metaphorically and professionally, had
`
` become evident to the world's most informed and powerful IT businesses.
`
` They were
`
` willing to make substantial, unrestricted regular donations to an organization led by me
`
` that would give pro bono legal assistance to free software non-profit organizations,
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` engage in the public teaching of these ideas, and train young lawyers who could help
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` commercial entities make use of the immense capital value being created in these
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` commons. I therefore founded SFLC.
`
` SFLC is a regulated public charity chartered in
`
` New York State for the purposes described, and determined to be a t