EMI Opposition To Google
EMI Opposition To Google
EMI Opposition To Google
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CAPITOL RECORDS, LLC, et al, )
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Plaintiffs, ) No. 07 Civ. 9931 (WHP)(FM)
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v. )
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MP3TUNES, LLC, and MICHAEL ROBERTSON, )
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Defendants. )
__________________________________________)
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MP3TUNES, LLC, and MICHAEL ROBERTSON, )
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Counter-Claimants, )
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v. )
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CAPITOL RECORDS, LLC, et al, )
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Counter-Defendants. )
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Plaintiffs oppose the motion of non-party Google, Inc. (“Google”) for leave to file an
A district court has broad discretion to accept or reject an amicus filing. SEC v. Bear,
Stearns & Co., Inc., No. 03 Civ. 2937 (WHP), 2003 U.S. Dist. LEXIS 14611, at *16 (Aug. 25,
2003) (denying motion to participate as amici). In exercise of that discretion, courts should deny
permission when the proposed brief (a) duplicates the arguments made in the litigants’ briefs, (b)
is filed by an advocacy group as opposed to a third party with a unique perspective, and (c) when
all parties are represented by competent counsel. Ryan v. Commodity Futures Trading
Commission, 125 F.3d 1062, 1063-64 (7th Cir. 1997). Courts also should reject amicus filings
that would result in unfair prejudice to the opposing side. Leigh v. Engle, 535 F. Supp. 418, 422
(N.D.Il 1982); see also Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542, 544 (7th
Cir. 2003); Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970). On all counts, Google’s
Google’s motion and proposed amicus brief are exceedingly late, and would cause undue
and unfair prejudice to plaintiffs. The parties’ cross-motions for summary judgment are fully
briefed and have been for weeks. Reply briefs were filed on December 17, 2010. In its motion
for leave, Google does not even pretend to have an excuse for its untimely filing – and there is
none. In its proposed amicus brief, Google principally addresses the applicability of the DMCA
to pre-1972 sound recordings. Proposed Brief of Non-Party Google, Inc., Docket # 249 at 2-8.
That “pre-72” issue has been in this case, explicitly, from the very outset. See Complaint,
Docket # 1, ¶¶ 84-93 (asserting state law claims based on pre-1972 sound recordings).
Defendant briefed that issue in their opening brief, filed on October 29, 2010, in a stand-alone
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section titled “The DMCA Safe Harbors Apply to Claims of Infringements of Sound Recordings
Authored Prior to 1972”; plaintiffs responded to those arguments in their opposition brief filed
on November 24, 2010. Generally, an amicus brief must be filed within seven days of the
principal brief that the amicus seeks to support. F.R.A.P. 29(e).1 This rule ensures that a party
opposing the position of amici curiae has sufficient time to respond to arguments advanced in an
amicus brief. U.S. ex rel. Gudur v. Deloitte Consulting LLP, 512 F. Supp. 2d 920, 927 (S.D.
Tex. 2007). There is no excuse for Google waiting more than two months – until briefing has
Google’s late request, if granted, would unfairly prejudice plaintiffs. Plaintiffs would
have no opportunity to respond to Google’s arguments. Likewise, plaintiffs are aware of other
amici that would have sought to file briefs on the “pre-72” issue if Google had timely filed.
The prejudice is especially acute here, because Google’s only legal argument is flatly
wrong in multiple respects. Google mostly advances one-sided policy arguments that are
divorced from and incompatible with the statutory text of the Copyright Act.2 The foundation of
Google’s sole legal argument is that the DMCA “safe harbors do not annul or limit rights or
remedies available under state common law” because plaintiffs “may pursue claims of
infringement against individuals (including MP3tunes users) they reasonably believe to have
directly infringed those rights.” Proposed Brief of Non-Party Google, Inc., Docket # 249 at 8
1
District courts are encouraged to look to the Federal Rules of Appellate Procedure in
determining whether amicus filings are timely and otherwise acceptable. In re Thorpe Insulation
Co., No. CV 10-1493, 2010 U.S. Dist. LEXIS 104196, *2 n. 1, (C.D. Cal. Sept. 21, 2010); U.S.
v. Olis, NO. H-07-3295, 2008 U.S. Dist. LEXIS 15972, *23-24 (S.D. Tex. Mar. 3, 2008). Under
Rule 29(e) of the Federal Rules of Appellate Procedure, Google’s brief would have been due
within seven days of MP3tunes’ opening brief, or no later than November 5, 2010.
2
This is precisely why amicus briefs are generally disfavored at the trial level. Goldberg v.
Philadelphia, No. 91 Civ. 7575, 1994 U.S. Dist LEXIS 9392, at * 2 (E.D.Pa. July 14, 1994); see
also Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970).
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(emphasis added). First, it is simply misleading for Google to assert that § 512 does not
expressly limit its applicability to federal copyright claims, and that, therefore, § 512(c) and the
other DMCA safe harbors apply to “all copyright claims, whether under federal law or
otherwise.” Proposed Brief of Non-Party Google, Inc., Docket # 249 at 6 (emphasis in original).
In fact, the statute does contain just such an express limitation. Section 512 is part of Chapter 5
of the Copyright Act. Under Chapter 5 of the Copyright Act, the expression “infringement of
copyright” (the term used throughout Chapter 5, including in § 512) has a specified meaning, as
set forth in § 501(a): namely, violation of “any of the exclusive rights of the copyright owner as
provided by sections 106 through 122” of the Copyright Act. 17 U.S.C. § 501(a) (emphasis
added). Thus, the DMCA safe harbors are expressly limited to infringement of rights granted
Second, the argument that the DMCA safe harbor provisions do not “annul or limit”
rights or remedies of copyright holders does not pass the red face test. Section 512 is titled
“Limitations on liability.” 17 U.S.C. § 512. Likewise, the distinction between direct infringers
and secondary infringers on which Google bases its argument simply does not exist under the
DMCA; if applicable, the DMCA would apply to both. E.g., Sen. Rep. No. 105-190 at 40 (“The
limitations in subsections (a) through (d) protect qualifying service providers from liability …
Google’s argument also ignores that the Supreme Court has emphasized that the remedy
of suing every individual direct infringer is impracticable and likely impossible. MGM Studios,
Inc. v. Grokster, Ltd., 545 U.S. 913, 929-930 (2005); see also Sony Corp. of America, Inc. v.
Universal City Studios, Inc., 464 U.S. 417, 446 (1984). That is one reason copyright law
provides for secondary copyright infringement liability. Under copyright law, secondary
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infringers are liable on equal footing with direct infringers. Sony, 464 U.S. at 435. Respectfully,
it is not helpful to the Court for Google to argue that completely eliminating remedies against the
secondary infringer – i.e., the party enabling the infringement and usually the only party in a
position to stop it – does not directly contravene Section 301(c)’s explicit prohibition on
“annul[ing] or limit[ing]” “any rights or remedies under the common law.” 17 U.S.C. § 301(c)
(emphasis added). In this context, eliminating a remedy against a secondary infringer is a far
This clearly is not the forum to answer Google’s substantive arguments in detail. Suffice
it to say plaintiffs believe Google’s proposed brief is fraught with arguments that are mistaken or
precluded by the statute. The Court should not allow Google to file a brief well after all briefing
has closed, and therefore unopposed. This would present the very “elements of unfairness” that
courts are urged to consider in rejecting requests to file amicus briefs. See Leigh, 535 F. Supp. at
422; Voices for Choices, 339 F.3d at 544; Strasser, 432 F.2d at 569.
Finally, to try to justify its untimely request, Google asserts that “[t]wo proposed amicus
briefs in support of Plaintiffs were … submitted on the same day that [the parties’] reply briefs
were filed.” However, what Google fails to say is that MP3tunes did not object to the filing of
those briefs. Thus there was no cognizable prejudice to defendants. Here, there is manifest
3
Google likewise does not assist the Court with a strained and unsupportable argument that the
language of § 512(c) is in conflict with § 301(c), when clearly on its face it is not. And Google
disserves the Court by arguing that bedrock rules of statutory construction should be suspended
because “section 512’s enactment post-dates the 1998 amendment to section 301(c),” Proposed
Brief of Non-Party Google, Inc., Docket # 249 at n.13, when in fact the same Congress enacted
both pieces of legislation in the same month. 17 U.S.C.A. § 301(c)(revision history); Auburn
Hous. Auth. v. Martinez, 277 F.3d 138, 145 (2d Cir. 2002) (“The ‘cardinal rule’ that repeal by
implication is disfavored…is even stronger when the two acts were enacted close in time”)
(citation omitted).
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2. Google Attempts To Inject Irrelevant Issues Not Raised By Any Of The Parties.
Google additionally argues in favor of the legality of “space-shifting” (i.e., storing music
purchased on a CD in digital form either on a computer hard drive, portable media player, or in
the “cloud”). Proposed Brief of Non-Party Google, Inc., Docket # 249 at 9. But that issue has
never been in this case. Indeed, on the first page of plaintiffs’ opening brief, plaintiffs explained
that this case does not concern “cloud computing or what users may do with their lawfully
acquired recordings,” but about defendants’ unlawful exploitation of copyrights they do not own.
Pls. Mem., Docket # 207 at 1-2. Indeed, Google acknowledges that plaintiffs have not argued
that “space-shifting” or “cloud computing” is illegal, but rather “Plaintiffs instead focus on users
who allegedly obtain music from infringing sources.” Proposed Brief of Non-Party Google, Inc.,
Docket # 249 at 9. As a result, the section of Google’s proposed brief on “space-shifting” (pages
9 through 11) is irrelevant and unhelpful to the issues briefed by the parties on summary
judgment. Moreover, Google has failed to explain how a decision in this case would materially
As the only purported justification for trying to introduce an extraneous issue, Google
points to a footnote in the amicus brief filed by the Motion Picture Association of America
amicus brief and the “space-shifting” argument advanced by Google. See Motion to File Amicus
Brief, Docket # 226, attachment #1 at p. 19 n. 6. What Google is really trying to do is bait the
Court into commenting favorably on Google’s own view of space-shifting, an issue of first
impression that has not been raised or briefed by any of the parties. The Court should decline
that invitation. That is an improper use of an amicus brief and further supports denial of
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The Court also should deny Google’s request for leave because Google does not come as
a “friend of the court” but rather as an advocate in support of defendant. U.S. v. Gotti, 755 F.
Supp. 1157, 1159 (E.D.N.Y. 1991) (proposed amici’s lack of “objective, dispassionate, neutral
discussion of the issues” should result in denial of leave to file); see also Bear, Stearns & Co.,
2003 U.S. Dist. LEXIS 14611, at *16 (Pauley, J.) (rejecting proposed amici who were not
“seeking to assist the Court in clarifying issues as an objective, neutral, dispassionate friend of
the court) (internal quotations omitted); Goldberg v. Philadelphia, No. 91 Civ. 7575, 1994 U.S.
Dist LEXIS 9392, at * 2 (E.D.Pa. July 14, 1994) (“When an organization seeking leave to appear
as amicus curiae is perceived to be an advocate for one of the parties to the litigation, leave to
appear amicus curiae should be denied”). Indeed, twice Google simply adopts and endorses the
arguments of defendant. Proposed Brief of Non-Party Google, Inc., Docket # 249 at 1, 10. Such
advocacy is neither the proper role of an amicus brief nor helpful to the Court.4
Google’s proposed amicus brief, whether engineered by defendant or not, has the same
effect: It frees MP3tunes from the Court’s page limits and provides MP3tunes an additional,
unsanctioned sur-reply brief. In all respects, Google advances the arguments of a party
defendant not a genuine amicus. From its unfairly one-sided policy arguments to its exaggerated
hyperbole about theoretical harms that have not materialized in over a decade of DMCA
experience, Google presents the Court with the spin of an advocate not “the objective,
dispassionate, neutral discussion” of a friend of the court. Bear, Stearns & Co., 2003 U.S. Dist.
LEXIS, at *16.
4
Undisclosed by Google is that Google has a business relationship with MP3tunes founder Michael Robertson, who
founded and developed Gizmo5, software which Google purchased in 2009 and has since integrated into its internet
telephone system. See http://techcrunch.com/2009/11/12/google-announces-acquisition-of-gizmo5/ (announcing
Google’s acquisition of Gizmo5 in 2009); see also http://techcrunch.com/2009/11/09/exclusive-google-has-
acquired-gizmo5/ (reporting that Gizmo5 was developed by Robertson).
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In the end, Google does not offer a perspective any different than MP3tunes, and
certainly not one that is objective, neutral or dispassionate. U.S. v. El-Gabrowny, 844 F. Supp.
955 (S.D.N.Y. 1994) (denying motion to file amicus where proposed submissions did not offer
“any argument or point of view that was not available from the parties themselves”). In fact,
defendant MP3tunes’ interest in the “pre-72” issue is far more direct than any interest Google
articulates. The “pre-72” issue involves one narrow set of copyrights only: sound recordings
first fixed prior to February 15, 1972. The issue of whether the DMCA covers infringement of
pre-1972 sound recordings is most directly of interest to MP3tunes, a company focused primarily
on the delivery of sound recordings. The issue, at best, has only marginal relevance to
hypothetical reviews on Google’s blog service, spreadsheets in the Google Docs service, search
engine results through the Google Web Search, pictures hosted through Picasa Web Albums, or
Conclusion
For the foregoing reasons, the motion to leave to file should be denied. If, however,
Google is given leave to file its brief, plaintiffs request that the Court provide an opportunity for
plaintiffs and other interested third-parties to respond to the arguments presented by Google.
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-and-
Steven B. Fabrizio
JENNER & BLOCK LLP
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