Cambridge University Press, et al v. J.L. Albert, et al

Filing 7

MOTION for extension of time to file appellants brief to 11/21/2012 at 04:00 pm. filed by Appellants Cambridge University Press, Oxford University Press, Inc. and Sage Publications, Inc.. Motion is Unopposed [6679240-1] (ECF: John Rains)

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
No. 12-14676-FF
_____________________________________
Cambridge University Press,
Oxford University Press, Inc.,
and Sage Publications, Inc.,
Plaintiffs-Appellants,
v.
Mark P. Becker, in his official capacity as Georgia State University President, et
al.,
Defendants-Appellees.
_____________________________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. No. 1:08-cv-1425 (Evans, J.)
_____________________________________
APPELLANTS’ UNOPPOSED MOTION FOR AN EXTENSION OF TIME
TO FILE THEIR OPENING BRIEF

1012610.1

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT
The following trial judges, attorneys, persons, associations of persons, firms,
partnerships, and corporations are known to have an interest in the outcome
of this case or appeal:
• Albert, J.L.
• Alford, C. Dean
• Askew, Anthony B., counsel for Appellees
• Association of American Publishers
• Bates, Mary Katherine, counsel for Appellees
• Ballard Spahr, LLP, counsel for Appellees
• Becker, Mark P.
• Bernard, Kenneth R., Jr.
• Bishop, James A.
• Bloom, Jonathan, counsel for Appellants
• The Board of Regents of the University System of Georgia
• Bondurant, Mixson & Elmore, LLP, counsel for Appellants
• Cambridge University Press
• Carter, Hugh A., Jr.

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C-1 of 4

• Cleveland, William H.
• Copyright Clearance Center
• Cooper, Frederick E.
• Ellis, Larry R.
• Evans, Hon. Orinda D., United States District Judge
• Georgia State University
• Griffin, Rutledge A., Jr.
• Harbin, John Weldon, counsel for Appellees
• Hatcher, Robert F.
• Henry, Ronald
• Hopkins, C. Thomas, Jr.
• Hurt, Charlene
• Jennings, W. Mansfield, Jr.
• Jolly, James R.
• King & Spalding, LLP, counsel for Appellees
• Krugman, Edward B., counsel for Appellants
• Larson, Todd D., counsel for Appellants
• Leebern, Donald M., Jr.

1012610.1

C-2 of 4

• Lynn, Kristen A., counsel for Appellees
• McKeon Meunier Carlin & Curfman, LLC
• McMillan, Eldridge
• Miller, Richard William, counsel for Appellees
• Moffit, Natasha Horne, counsel for Appellees
• NeSmith, William, Jr.
• Oxford University Press, Inc.
• Oxford University Press, LLC
• Oxford University Press USA
• Palm, Risa
• Patton, Carl. V.
• Poitevint, Doreen Stiles
• Potts, Willis J., Jr.
• Pruitt, Neil L., Jr.
• Quicker, Katrina M., counsel for Appellees
• Rains, John H., IV, counsel for Appellants
• Rich, R. Bruce, counsel for Appellants
• Rodwell, Wanda Yancey

1012610.1

C-3 of 4

• SAGE Publications, Inc.
• Seamans, Nancy
• Schaetzel, Stephen M., counsel for Appellees
• Singer, Randi W, counsel for Appellants
• Stelling, Kessel, Jr.
• Tarbutton, Benjamin J., III
• Tucker, Richard L.
• The Chancellor, Masters and Scholars of the University of Oxford
• Walker, Larry
• Weil Gotshal & Manges, LLP, counsel for Appellants
• Wilheit, Philip A., Sr.
• Vigil, Allan
• Volkert, Mary Josephine Leddy, counsel for Appellees

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C-4 of 4

Plaintiffs-Appellants, Cambridge University Press, Oxford University Press,
Inc., and Sage Publications, Inc. (“Appellants”), through their undersigned counsel,
respectfully submit this unopposed motion for a 30-day extension of time, to and
including November 21, 2012, within which to file their opening brief.
Relevant Procedural Background
On April 15, 2008, Appellants, three academic publishers, filed a complaint
against Georgia State University (“GSU” or “Appellees”) 1 in the United States
District Court for the Northern District of Georgia seeking to enjoin the systematic,
widespread, unauthorized copying and distribution of copyrighted academic works
through a variety of university-controlled online systems. See Doc. No. 1.
Approximately one year after a three-and-a-half week bench trial, on May 11,
2012, the District Judge issued a 340-page order holding that Appellants had both
partially prevailed and partially failed on their copyright infringement claims
against GSU. See Order, Doc. No. 423, at 337-339 (May 11, 2012). After the
parties filed submissions concerning proposed injunctive relief, on August 10,
2012, the District Court ordered Appellees to maintain copyright policies for
Georgia State University that were not inconsistent with the court’s May 11, 2012
order and to disseminate to faculty and relevant staff at Georgia State the essential
1

The named Appellees are the President and various officials of Georgia State
University, sued in their official capacity, as well as the members of the Board of
Regents of the University System of Georgia.
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points of the District Court’s ruling. The District Court also found that Appellees
were entitled to reasonable attorneys’ fees based on its determination that they
were “prevailing parties,” and it set a briefing schedule and a date for a hearing on
the amount of fees. See Order, Doc. No. 441, at 14-15 (Aug. 10, 2012). During
the hearing, held on September 14, 2012, the court stated that an award of
attorneys’ fees would be forthcoming.
On September 10, 2012, Appellants timely filed a Notice of Appeal from
several orders. Although this Court did not acknowledge the appeal until
September 25, 2012, Appellants’ opening brief currently is due on October 22,
2012. See USCA Acknowledgement of Doc. No. 449 Notice of Appeal, Doc. No.
457 (Sept. 26, 2012). Appellants have not previously requested an extension of
time for the opening brief. Appellees have consented to the relief requested in this
motion.
Reasons For Granting The Request
This case involves a complex set of legal issues of surpassing importance to
academic publishers involving application of the fair use doctrine of copyright law.
This appeal follows a lengthy bench trial, extensive pre-trial proceedings, and a
340-page merits determination by the district court. See Order, Doc. No. 423 (May
11, 2012).

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Counsel for Appellants respectfully requests that the Court grant this motion
for a 30-day extension of time, to and including November 21, 2012, within which
to file their opening brief because R. Bruce Rich, Appellants’ lead counsel, has
several conflicting professional obligations in matters in which he is also acting as
lead counsel that will occupy substantially all of the period between now and the
October 22 due date of Appellants’ brief. These include: the completion of posthearing briefing (by October 12) and closing arguments (October 16) in a matter
tried this past summer before the Copyright Royalty Board; 2 an October 24 oral
argument before the Second Circuit in Marvel Characters, Inc. v. Lisa R. Kirby,
Case No. 11-3333; and the completion of summary judgment briefing by
November 2 in White v. West Publishing Corp., No. 12 Civ. 1340(JSR) (S.D.N.Y.)
(Rakoff, J.), a copyright infringement case pending in the Southern District of New
York.3 Appellees do not oppose the request for additional time.

2

The Copyright Royalty Board is an administrative tribunal that sets the rates and
terms of certain statutory licenses for the digital performance of sound recordings
pursuant to 17 U.S.C. § 801, et. seq.
3

In addition, Appellants did not receive notice of the current briefing deadline until
September 25, 2012 – allowing them only 25 days to brief a complex case
involving important legal issues as applied to an extensive factual record.
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Conclusion
For the foregoing reasons, Appellants respectfully request that this Court
grant them a 30-day extension of time, to and including November 21, 2012 within
which to file their opening brief.
Respectfully submitted this 28th day of September, 2012.
/s/ John H. Rains IV
Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
John H. Rains IV
[e-mail]
Georgia Bar No. 556052
BONDURANT, MIXSON & ELMORE, LLP
1201 West Peachtree Street NW
Suite 3900
Atlanta, Georgia 30309
Telephone: [phone]
Facsimile: [phone]
R. Bruce Rich
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Facsimile: [phone]
Attorneys for Appellants

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CERTIFICATE OF SERVICE
I certify that I have this day caused a true and correct copy of
APPELLANTS’ UNOPPOSED MOTION FOR AN EXTENSION OF TIME
TO FILE THEIR OPENING BRIEF to be served by United States mail on the
following counsel of record:
John W. Harbin, Esq.
Natasha H. Moffitt, Esq.
Mary Katherine Bates, Esq.
KING & SPALDING LLP
1180 Peachtree Street
Atlanta, Georgia 30309
Katrina M. Quicker, Esq.
Richard W. Miller, Esq.
BALLARD SPAHR, LLP
999 Peachtree Street, Suite 1000
Atlanta, Georgia 30309
Anthony B. Askew, Esq.
Stephen M. Schaetzel, Esq.
MCKEON, MEUNIER, CARLIN & CURFMAN, LLC
817 W. Peachtree Street, Suite 900
Atlanta, Georgia 30308
Mary Jo Volkert, Esq.
Assistant State Attorney General
40 Capitol Square
Atlanta, Georgia 30334

This 28th day of September, 2012.
/s/ John H. Rains IV
John H. Rains IV

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