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

Filing 31

RESPONSE to Motion to file excess pages filed by Appellants Cambridge University Press, Oxford University Press, Inc. and Sage Publications, Inc. in 12-14676 [6682902-2] filed by Attorney Stephen M. Schaetzel for Appellees Mark P. Becker, J. L. Albert, Kenneth R. Bernard, Jr., Robert F. Hatcher and W. Mansfield Jennings, Jr.. (ECF: Stephen Schaetzel)

Case No. 12-14676-FF

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CAMBRIDGE UNIVERSITY PRESS, et al.,
Plaintiffs-Appellants,
v.

MARK P. BECKER, et al.,
Defendants-Appellees.

Appeal From The United States District Court
For The Northern District Of Georgia
Case No. 1:08-cv-1425-ODE
APPELLEES’ RESPONSE TO APPELLANTS’ MOTION
FOR AN ENLARGEMENT OF THE PERMITTED
WORDS FOR APPELLANTS’ OPENING BRIEF
Anthony B. Askew
Stephen M. Schaetzel
Robin L. Gentry
Walter Hill Levie, III
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street, Suite 500
Atlanta, Georgia 30308
Tel: [phone]
Fax: [phone]
Counsel for Defendants-Appellees

October 10, 2012

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
Ballard Spahr, LLP, counsel for Appellees
Banks, W. Wright, Jr., counsel for Appellees
Bates, Mary Katherine, counsel for Appellees
Becker, Mark P.
Bernard, Kenneth R., Jr.
Bishop, James A.
Bloom, Jonathan, counsel for Appellants
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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Cleveland, William H.
Cooper, Frederick E.
Copyright Clearance Center
Ellis, Larry R.
Evans, Hon. Orinda D., United States District Judge
Gentry, Robin L., counsel for Appellees
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.
Lerer, R.O., retired counsel for Appellees

C-2 of 4

Levie, Walter Hill, III, counsel for Appellees
Lynn, Kristen A., counsel for Appellees
McKeon Meunier Carlin & Curfman, LLC, counsel for Appellees
McMillan, Eldridge
Miller, Richard William, counsel for Appellees
Moffit, Natasha Horne, counsel for Appellees
NeSmith, William, Jr.
Olens, Samuel S., counsel for Appellees
Oxford University Press USA
Oxford University Press, Inc.
Oxford University Press, LLC
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

C-3 of 4

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

C-4 of 4

Defendants-Appellees (“Appellees”), by and through their undersigned
counsel, request that the Court deny Appellants’ motion for a four-thousand word
enlargement of the permitted words for Appellants’ opening brief.
According to 11th Cir. R. 27-1(c)(13), a moving party must show
“extraordinary circumstances” for filing briefs in excess of the page and typevolume limitations set forth in Fed. R. App. P. 32(a)(7). Further, the Court of
Appeals for the Eleventh Circuit “looks with disfavor upon such motions and will
only grant such a motion for extraordinary and compelling reasons.” 11th Cir. R.
32-4 (emphasis added). Appellants have failed to offer any extraordinary and
compelling reasons for the requested enlargement. Appellees respectfully submit
that the motion should be denied.
Although the subject litigation extended over several years, the issues on
appeal are finite and do not require an enlargement of permitted words for briefing.
In support of the instant motion, Appellants argue that a motion for summary
judgment, various motions in limine, and a Defendants’ motion for directed verdict
were filed and decided by the district court. See Appellants’ Motion for
Enlargement of the Permitted Words for Their Opening Brief, filed Oct. 3, 2012, at
1-2 (hereinafter referred to as “Appellants’ Motion for Enlargement”).1 Appellants

1

At trial, the Defendants made various motions for judgment on partial findings.
Since this was a bench trial, there was technically no motion for a directed verdict.
See Fed. R. Civ. P. 52(c).
1

further offer that “numerous oral evidentiary rulings” were made at trial and are
now at issue on appeal. Id. at 2. Such events and rulings do not constitute
extraordinary circumstances. Instead, these events and rulings are typical and
ordinary during the pendency of any lawsuit or trial.
Appellants do correctly observe that the district court’s order following the
bench trial in this case was 340 pages in length. Id. at 2; see also Order, Dkt. No.
423 (May 11, 2012). However, a review of the substance of that order
demonstrates that an enlargement of permitted words is unnecessary. During the
bench trial in this case, appellants alleged 74 instances of copyright infringement
against appellees. Before addressing each individual allegation of copyright
infringement, the district court first set forth the elements necessary to establish a
prima facie case of copyright infringement. See Dkt. No. 423 at 42-47. The
district court then analyzed the fair use defense under the Copyright Act and
discussed the four-factor test for such a defense in the context of electronic
reserves at non-profit colleges and universities. Id. at 47-89; see also id. at 337-39.
This discussion of the prima facie elements necessary to establish a case of
copyright infringement and the fair use defense constituted approximately 52 pages
(15%) of the 340-page order. In essence, this discussion formed the basis for the
vast majority of the remainder of the order as the district court then applied the

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prima facie elements and its fair use analysis to the allegations of copyright
infringement.
In addressing those allegations, the district court first discussed whether
appellants had established a prima facie case of copyright infringement for each
particular copyright in suit. See generally id. at 89-337. Where the district court
found that appellants had established a prima facie case, the district court then
discussed whether the fair use defense applied to Appellees’ use of the respective
work that was the subject of the copyright in suit. Id. Applying the fair use
defense required an application of the four factors, as discussed by the district
court earlier in its order. See id. at 47-89. The district court performed these same
analyses for each of the 74 allegations of copyright infringement. See generally id.
at 89-337. In all, the district court spent approximately 249 pages (73%) of its
order applying the prima facie elements of a claim of copyright infringement and
the fair use defense to each claim of infringement for the copyrights in the various
works at issue. Thus, on appeal, the parties will most likely focus more on the
district court’s fair use analysis rather than on the specifics of the individual
infringement allegations.
In Appellants’ Motion for Enlargement, Appellants correctly observe that
the bench trial in this case lasted almost four weeks and included testimony from
almost thirty witnesses. See Appellants’ Motion for Enlargement at 2. Conducting
3

a bench trial, however, is ordinary and does not rise to the level of an extraordinary
circumstance. Analogous to the district court’s order, discussed supra, much of the
trial was devoted to Appellants’ efforts to establish a prima facie case of copyright
infringement for each allegation of infringement, and Appellees’ evidence in
support of their fair use defense. Appellants have also argued in their Motion for
Enlargement that the award of attorneys’ fees and costs to Appellees in this case
justifies enlarging the number of permitted words. However, the determination of a
“prevailing party” and an award of attorneys’ fees and costs in a copyright
infringement action are ordinary. Such determinations do not provide
extraordinary and compelling reasons for permitting an enlargement of permitted
words for briefing. Again, these events are typical and occur in the ordinary
course of copyright litigation.
This appeal does not present extraordinary circumstances under which an
enlargement is necessary. Appellees acknowledge that this case is one of first
impression for this Circuit.2 However, Appellees submit that simply because a
case is one of first impression does not present “extraordinary and compelling
reasons” for the enlargement of permitted words, as required under the Local Rules
for the Eleventh Circuit. See 11th Cir. R. 32-4. The issues on appeal can be
adequately briefed by all parties in the page limits set forth by the Court under its
2

Appellants argue that the holding in this case is actually in conflict with another
Circuit, with which Appellees disagree.
4

applicable rules. Accordingly, Appellants have not shown any compelling or
extraordinary reasons for an enlargement of the permitted words, thus making such
an enlargement unnecessary.
Accordingly, Appellees request that the Court deny Appellants’ motion for a
four-thousand work enlargement of the permitted words for Appellants’ opening
brief.
RESPECTFULLY SUBMITTED this 10th day of October 2012.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
W. WRIGHT BANKS, JR.
Georgia Bar No. 036156
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Senior Assistant Attorney General
MCKEON, MEUNIER, CARLIN &
CURFMAN, LLC
/s/ Anthony B. Askew
Anthony B. Askew
Georgia Bar No. 025300
Special Assistant Attorney General
Stephen M. Schaetzel
Special Assitant Attorney General
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Georgia Bar No. 628653
Robin L. Gentry
Georgia Bar No. 289899
Walter Hill Levie, III
Georgia Bar No. 415569
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street, N.W., Suite 500
Atlanta, Georgia 30308
Phone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for Defendants-Appellees

6

CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on this 10th day of October 2012, I have
served a true and correct copy of the APPELLEES’ RESPONSE TO
APPELLANTS’ MOTION FOR AN ENLARGEMENT OF THE
PERMITTED WORDS FOR APPELLANTS’ OPENING BRIEF by United
States mail on the following attorneys of record:
Edward B. Krugman
[e-mail]
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
Telephone: [phone]
Facsimile: [phone]
R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Facsimile: [phone]

/s/ Anthony B. Askew
Anthony B. Askew
Georgia Bar No. 025300
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street, N.W., Suite 500
Atlanta, Georgia 30308
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Phone: [phone]
Fax: [phone]
Email: [e-mail]

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