Viacom International, Inc. v. Youtube, Inc.
MOTION TO FILE AMICUS CURIAE BRIEF, on behalf of Non-Party Filer(s), FILED. Service date12/10/2010 by CM/ECF. [10-3270]
Viacom International, Inc. v. Youtube, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT Docket Number(s):
Caption [use short title]
Motion for: Leave to file a brief of amici curiae. Set forth below precise, complete statement of relief sought:
Viacom International, Inc. , et al. v. YouTube, Inc., et al. The Football Association Premier League Limited, et al. v. YouTube, Inc., et al.
Leave of Court to file the attached brief of amici curiae in support of appellants.
MOVING PARTY: Motion Picture Association of America, Inc. 9 Plaintiff 9 Defendant 9 Appellant/Petitioner 9 Appellee/Respondent MOVING ATTORNEY:
OPPOSING PARTY: YouTube, Inc. et al.
Kelly M. Klaus
Munger, Tolles & Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071-1560 (213) 683-9238 Kelly.Klaus@mto.com
Court-Judge/Agency appealed from: Please check appropriate boxes:
OPPOSING ATTORNEY: Andrew H. Schapiro [name of attorney, with firm, address, phone number and e-mail]
Mayer Brown LLP 1675 Broadway New York, New York 10019-5820 (212) 506-2672 firstname.lastname@example.org
Southern District of New York (Stanton, J.)
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has request for relief been made below? 9 Yes 9 No Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency:
Has movant notified opposing counsel (required by Local Rule 27.1): x 9 Yes 9 No (explain): Opposing counsel's position on motion: x 9 Unopposed 9 Opposed 9 Don't Know Does opposing counsel intend to file a response: x 9 Yes 9 No 9 Don't Know Is oral argument on motion requested? Has argument date of appeal been set? 9 Yes
x 9 No (requests for oral argument will not necessarily be granted)
9 Yes x No If yes, enter date:__________________________________________________________ 9
Signature of Moving Attorney: / _ _ el__ M. K ___ 12/10/2010 __s/_K__ly _____laus__________________Date: ___________________
Has service been effected?
x 9 Yes
9 No [Attach proof of service]
ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED. FOR THE COURT: CATHERINE O'HAGAN WOLFE, Clerk of Court Date: _____________________________________________ By: ________________________________________________
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT VIACOM INTERNATIONAL, INC., et al., Plaintiffs-Appellants, v. YOUTUBE, INC., et al., Defendants-Appellees. THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, et al., Plaintiffs-Appellants, v. YOUTUBE, INC., et al., Defendants-Appellees. MEMORANDUM IN SUPPORT OF MOTION OF MOTION PICTURE ASSOCIATION OF AMERICA, INC. AND INDEPENDENT FILM & TELEVISION ALLIANCE FOR LEAVE TO FILE BRIEF OF AMICI CURIAE SUPPORTING APPELLANTS The Motion Picture Association of America, Inc. ("MPAA") and the Independent Film & Television Alliance® (IFTA®) respectfully move the Court for leave to file a brief of amici curiae supporting appellants. A copy of the proposed amici brief is attached as Ex. 1 to the accompanying No. 10-3342 No. 10-3270
Affidavit of Kelly M. Klaus ("Klaus Affidavit"). All appellants in these consolidated proceedings have consented to this filing. Klaus Affidavit ¶¶ 3-4. Amici requested consent from appellees (Google and YouTube). Appellees position was that, unless amici provided them with an advance copy of the brief, appellees could not say whether they would consent to this filing. Id. ¶ 5. Appellees have indicated they will respond to this motion and inform the Court whether they consent to, oppose or take no position regarding the relief that this motion seeks. Id. Amici and their members have a significant interest in the important questions that this case presents concerning the interpretation of the Copyright Act, 17 U.S.C. §§ 101 et seq., and in particular the Digital Millennium Copyright Act provisions codified at § 512. Amici's members depend upon effective copyright protection in order to protect the motion picture and television content that they invest in, create and distribute. Founded in 1922, the MPAA is a trade association that serves as the advocate for the domestic motion picture, home video and television industries. Its members and their affiliates include the largest producers and distributors of motion pictures and television programs in the United States. These members include Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLLP, Walt Disney
Studios Motion Pictures and Warner Bros. Entertainment Inc. Appellant Paramount Pictures Corporation is a member of the MPAA. However, Paramount, its affiliates (including other of the appellants), and their counsel have not written the amici brief in whole or in part. None of them has made a monetary contribution intended to fund the preparation or submission of amici's brief. IFTA is the trade association for the independent film and television industry worldwide, representing over 155 independent production and distribution companies, as well as affiliated financial institutions that provide funding for independent production. IFTA also is the owner of the American Film Market®, the largest commercial film market in the world. IFTA members have produced, financed and/or distributed such critically and commercially successful films as The Hurt Locker, Crash, Slumdog Millionaire, The Departed, Million Dollar Baby and Lord of the Rings. Since 1984, IFTA member films have won over 64% of the Best Picture Academy Awards®. Amici seek to file the attached brief because of their profound concerns with the district court's decision. Amici believe that their views regarding the important legal and policy issues that this case presents may be helpful to the Court in its consideration of this case.
Appellees informed the undersigned that they could not determine whether they would consent to the filing of amici's brief without first reviewing it. Appellees cited the fact that the Viacom Plaintiffs-Appellants' brief discusses evidence concerning communications between the MPAA and YouTube. Amici's brief does not discuss this evidence, a fact that the undersigned has communicated to appellees' counsel. Klaus Affidavit ¶ 5. Amici respectfully submit that the brief should be filed. Appellants have not authored all or any part of the amici brief. Nor have they made a monetary contribution intended to fund its preparation or submission. The brief does not discuss any evidence concerning communications between the MPAA and YouTube. The brief simply offers amici's arguments on the important legal and policy issues that this case raises. Given amici's clear and significant interest in these issues, we respectfully submit that amici's brief should be filed. DATED: December 10, 2010 MUNGER, TOLLES & OLSON LLP
By: /s/ Kelly M. Klaus KELLY M. KLAUS Counsel for Amicus MPAA
AFFIDAVIT OF KELLY M. KLAUS Kelly M. Klaus declares and states, under penalty of perjury under the laws of the United States, 28 U.S.C. § 1746, as follows: 1. I am a partner in the law firm of Munger, Tolles & Olson LLP,
counsel to amicus curiae the Motion Picture Association of America, Inc. ("MPAA"). I was admitted to practice before the United States Court of Appeals for the Second Circuit on December 7, 2010. The facts stated in this affidavit are within my personal knowledge. 2. Attached as Exhibit 1 to this affidavit is the proposed Brief of
Amici Curiae MPAA and Independent Film & Television Alliance in Support of Appellants. 3. On December 2, 2010, counsel for appellants in No. 10-3270
consented to the filing of amici's brief. 4. On December 6, 2010, counsel for appellants in No. 10-3342
consented to the filing of amici's brief. 5. On December 3, 2010, counsel for appellees in Nos. 10-3270
and 10-3342 told me that appellees would not be able to decide whether to consent to the filing of amici's brief without first reviewing it. Counsel cited the fact that documents and testimony concerning communications between the MPAA and YouTube are discussed in appellants' opening brief in No.
10-3270. On December 3, 2010, I told appellees' counsel that amici's brief would not discuss this evidence. On December 6, 2010, appellees' counsel again told me that appellees could not consent to the filing of the brief without first reviewing it. On December 8, 2010, I inquired of appellees' counsel concerning his clients' position on this motion. Counsel told me that I could inform the Court that appellees do not know whether they will oppose this motion and that they will file a response after reviewing the motion and the attached amici brief.
DATED: Los Angeles, California December 10, 2010
/s/ Kelly M. Klaus Kelly M. Klaus
CERTIFICATE OF SERVICE I hereby certify that on this 10th day of December, 2010, a true and correct copy of the foregoing Motion of Motion Picture Association of America, Inc. and Independent Film & Television Alliance for Leave to File Brief of Amici Curiae Supporting Appellants; Memorandum in Support; and Affidavit of Kelly M. Klaus, including Exhibit 1, which is the proposed amici brief, was served on all counsel of record in this appeal via CM/ECF pursuant to Second Circuit Rule 25.1(h)(1)-(2). /s/ Kelly M. Klaus Kelly M. Klaus