Cambridge University Press et al v. Patton et al

Filing 298

REPLY BRIEF re 273 MOTION in Limine to Overrule Objections to Evidence of Alleged Infringements filed by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit A)(Rains, John)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., and SAGE PUBLICATIONS, INC., Plaintiffs, Civil Action No. 1:08-CV-1425-ODE - v.MARK P. BECKER, in his official capacity as Georgia State University President, et. al. Defendants. PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION IN LIMINE TO OVERRULE OBJECTIONS TO EVIDENCE OF ALLEGED INFRINGEMENTS Plaintiffs Cambridge University Press, Oxford University Press, Inc., and SAGE Publications, Inc. (collectively, “Plaintiffs”) submit this reply to Defendants’ Brief in Opposition to Plaintiffs’ Motion In Limine to Overrule Objections to Evidence of Alleged Infringements, Docket No. 289 (“Defs.’ Opp’n”). The instant motion concerns the parties’ March 15, 2011 Joint Filing, Docket No. 266 (the “Joint Filing”). In the Joint Filing, Defendants interposed 878474.1 several objections with respect to Plaintiffs’ allegedly infringed works: (1) that an exclusive license to publish a work does not confer standing to bring a copyright infringement claim; (2) that copyright registration is a prerequisite to a suit for infringement of works first published outside the United States; and (3) that Plaintiffs should have produced “deposit copies” of each allegedly infringed work. Plaintiffs’ motion explained why each of these objections was unfounded as a matter of law and should, accordingly, be overruled. Docket No. 273. In their opposition, Defendants essentially concede that Plaintiffs are correct as to the first two of Defendants’ objections. As to the first, Defendants admit that an exclusive licensee has standing to sue for copyright infringement. Defs.’ Opp’n at 2. Accordingly, Plaintiffs’ motion on this point is uncontested and should be granted. Defendants now claim, however, that what they really are disputing is whether Plaintiffs can demonstrate ownership of the works at issue, which they note is the subject of a separate in limine motion they have filed. Id. at 2-3. Plaintiffs dispute Defendants’ contentions regarding Plaintiffs’ proof of copyright ownership on a number of grounds, but those contentions are – at best – irrelevant to this motion,1 which is directed solely to the legal proposition that an exclusive 1 Defendants’ primary example, The Fragility of Goodness, is a work that Plaintiffs told Defendants three weeks ago they were removing from their list of alleged 878474.1 2 licensee has standing to sue. As Defendants have conceded the point, their legally baseless objections on the Joint Filing “no assignment of copyright to publisher provided (license only)” should be overruled as contrary to law. As to the second prong of Plaintiffs’ motion, Defendants again admit Plaintiffs’ legal point: that Plaintiffs need not produce a copyright registration certificate for works published in the United Kingdom at least thirty days in advance of publication in the United States. Defs.’ Opp’n at 5. In light of that concession, the Court should grant Plaintiffs’ motion on this point and overrule Defendants’ objection that Plaintiffs have not produced registrations for foreign works. Defendants’ arguments as to whether Plaintiffs works are actually foreign works or, if so, whether they are copyrightable, (Defs.’ Opp’n at 6), should be raised – if at all – after Plaintiffs present their case at trial. Finally, as to the last prong of Plaintiffs’ Motion concerning the purported need to provide deposit copies for certain works, Plaintiffs have explained why Defendants’ position is wrong at length in their motion in limine (Docket No. 273) and in their brief opposing Defendants’ Motion in Limine to Exclude Evidence of Alleged Infringement of Improperly Asserted Copyrights (Docket No. 288 at Part infringements. See Exhibit A (email exchange between Plaintiffs’ counsel Randi Singer and Defendants’ counsel Steve Schaetzel, dated April 18, 2011). 878474.1 3 II), which Plaintiffs incorporate here by reference. For the reasons discussed in those filings, Plaintiffs respectfully move the Court to overrule Defendants’ unfounded “deposit copy” objection. There is no reason, as Defendants suggest, to reserve ruling on this issue until trial. As a matter of law, Plaintiffs have no burden at trial to demonstrate, as part of their infringement claims, that they deposited copies with the U.S. Copyright Office. Id. CONCLUSION For the foregoing reasons, Plaintiffs move the Court to grant their Motion In Limine to Overrule Objections to Evidence of Alleged Infringements in its entirety. Respectfully submitted this 11th day of May, 2011. /s/ John H. Rains IV Edward B. Krugman Georgia Bar No. 429927 John H. Rains IV Georgia Bar No. 556052 Bondurant, Mixson & Elmore, LLP 1201 West Peachtree Street NW Suite 3900 Atlanta, GA 30309 (404) 881-4100 R. Bruce Rich (pro hac vice) Randi Singer (pro hac vice) Jonathan Bloom (pro hac vice) Todd D. Larson (pro hac vice) 878474.1 4 WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Attorneys for Plaintiffs 878474.1 5 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(D), I hereby certify that this document complies with the font and point selections set forth in Local Rule 5.1. This document was prepared in Times New Roman 14 point font. /s/ John H. Rains IV John H. Rains IV 878474.1 6 CERTIFICATE OF SERVICE I hereby certify that I have this day filed the foregoing PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION IN LIMINE TO OVERRULE OBJECTIONS TO EVIDENCE OF ALLEGED INFRINGEMENTS with the Clerk of Court using the CM/ECF filing system which will send e-mail notification of such filing to opposing counsel as follows: Stephen M. Schaetzel, Esq. Kristen A. Swift, Esq. C. Suzanne Johnson, Esq. Mary Katherine Bates, Esq. KING & SPALDING 1180 Peachtree Street Atlanta, Georgia 30309 Katrina M. Quicker, Esq. BALLARD SPAHR, LLP 999 Peachtree Street, Suite 1000 Atlanta, Georgia 30309 Anthony B. Askew, Esq. McKeon, Meunier, Carlin & Curfman, LLC 817 W. Peachtree Street, Suite 900 Atlanta, GA 30308 Mary Jo Volkert, Esq. Assistant S. Attorney General 40 Capitol Square Atlanta, Georgia 30334 This 11th day of May, 2011. /s/ John H. Rains IV John H. Rains IV 878474.1 7