First YouTube video cited in court opinion

Terence Evans this week became the first judge in the United States to cite a YouTube video in a written opinion.

Evans, a President Clinton nominee who sits on the 7th U.S. Circuit Court of Appeals, was writing about a case involving a trademark dispute over "Stealth" baseball bats.

The case deals with baseball Hall-of-Famer George Brett, who joined a baseball bat manufacturer after he left the Kansas City Royals. Now Brett Brothers Sports International is embroiled in a trademark dispute with Central Manufacturing, which is a hyper-litigious company owned by Leo Stoller that claims broad trademark rights in the world "Stealth."

As background, Evans included a description of what baseball fans remember as Brett's famous Pine Tar Incident in a 1983 game against the New York Yankees over whether the bat was legal to be used. Brett's home run was nullified by an umpire, the Yankees won, but on appeal to the American League his team got a second try and eventually beat the Yankees 5-4.

Evans wrote: "Baseball, like our legal system, has appellate review...It ended after 12 minutes when Royals' closer Dan Quisenberry shut the door on the Yankees in their half of the ninth to seal the win. The whole colorful episode is preserved, in all its glory, on YouTube, at https://www.youtube.com/watch?v=4Cu1WXylkto (last visited June 6, 2007). See also Retrosheet Boxscore, Kansas City Royals 5, New York Yankees 4, at http://ww w.retrosheet.org/boxesetc/1983/B07240NYA1983.htm (last visited June 6, 2007)."

The YouTube video, by the way, has been taken down since the court visited it last week. A note on the site says: "This video is no longer available due to a copyright claim by MLB Advanced Media." (A search of a legal database on Thursday turned up some cases mentioning YouTube and copyright decisions involving the company, but no published opinions citing a specific YouTube.com video.)

Evans, who was writing on behalf of a three-judge panel, sided with Brett. He noted that Stoller's Central Manufacturing has a habit of threatening companies with trademark lawsuits unless they pay licensing fees--and losing most of them. He wrote: "Leo Stoller is no stranger to trademark litigation. Indeed, one might say it is the essential part of his business strategy. In fact, were there a Hall of Fame for hyperactive trademark litigators, Stoller would be in it. And, like George Brett, he would have gotten in on the first ballot. Acting as a sort of intellectual property entrepreneur, Stoller has federally registered scores of trademarks with the U.S. PTO (Central lists upwards of 50 that are actual or pending for just the 'Stealth' mark), many containing everyday words that regularly pop up in commercial enterprise."

The judge even noted that the New York Times wrote an article about Stoller titled "He Says He Owns the Word 'Stealth' (Actually, He Claims 'Chutzpah,' Too)."

The 7th Circuit sided with Brett, saying Stoller had "made a mockery" of the judicial process. It upheld a district court decision against Stoller, which found Brett Brothers had filed a trademark registration in 1999, five years before Stoller did. In fact, the district judge even went so far as to order that Stoller's 2005 registration of "Stealth" for baseball bats be canceled, and ordered Stoller to pay Brett Brother's lawyer fees and other costs.

Evans, by the way, has a habit of writing amusing opinions. Another included this footnote: "The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch 'hoe.' A 'hoe,' of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden's response. We have taken the liberty of changing 'hoe' to 'ho,' a staple of rap music vernacular as, for example, when Ludacris raps 'You doin' ho activities with ho tendencies."

We'll include the rest of Evans' description of The Pine Tar Incident below for your delectation:

It's undisputed: George Brett was a great baseball player. The statistics from his 21 years in The Show, all with the Kansas City Royals, seal the deal: 3,154 hits, 317 home runs, and a career batting average of .305. Only three other players--Stan Musial, Hank Aaron, and Willie Mays--ended their careers with more than 3,000 hits and 300 home runs, while still maintaining a lifetime batting average over .300. Brett's selection to the Hall of Fame, on the first ballot in 1999, was richly deserved. Yet for all his accomplishments, many who love baseball will always think of the "Pine Tar Incident" as the capstone of his career. It is a joy to recall.

It was July 24, 1983, and the Royals, trailing 4-3 to the New York Yankees, had a man on first but were down to their final out in the top half of the ninth inning. Brett was at the plate. The Yankees' ace closer, 'Goose' Gossage, was on the mound. And Brett crushed an 0-1 fastball over the 353-foot mark into the right field seats, giving Kansas City the lead, 5-4. Pandemonium broke out in the Royals' dugout. The Yankee Stadium crowd fell silent. But things were about to change.

While the Royals were celebrating, the Yankees' fiery manager, Billy Martin, walked calmly (unusual for him) to home plate where he engaged the umpire, Tim McClelland, in quiet conversation. Martin pointed to an obscure rule (and we sometimes think the Federal Rules of Appellate Procedure are obscure!), which provides that any substance (including pine tar) that a player might rub on his bat handle for a better grip cannot extend more than 18 inches. See Major League Baseball Official Rules Sec. 1.10(b). Martin, pointing to a lot of pine tar on the bat Brett left behind as he circled the bases, asked McClelland to check it out. McClelland, using home plate as a ruler, determined that pine tar covered 24 inches of the bat handle. So the bat, McClelland ruled, was illegal.

With his ruling ready for delivery, McClelland took a few steps toward the jubilant Royals' dugout and gave the signal: for using an illegal bat, the home run was nullified, and Brett was out. Game over. Yankees win 4-3. And all hell broke loose. An infuriated George Brett charged out of the dugout and rushed McClelland as Martin, who looked like the cat who ate the canary, stood off to the side. It was one of the great all-time rhubarbs in baseball history. And that's how it ended, at least for July 24, 1983...