The Football Association Premi v. Youtube, Inc.

Filing 256

AMICUS BRIEF, on behalf of Amicus Curiae National Venture Capital Association, FILED. Service date 04/07/2011 by CM/ECF [256935] [10-3342]--[Edited 04/07/2011 by KG]

The Football Association Premi v. Youtube, Inc.

Doc. 256

10-3270-CV 10-3342-CV
IN TI{E

0lrrítrb åtntss ([ourt of Hppûels
FOR TFIE SECOND CIRCI-IIT Vlacov INteRNarloNAL,INc., Coveoy PaRrNpRs, CoLnqtRv MusIc TelpvlsIoN,INC., PRnavouxr Ptcrunes CoRponerroN, BLecr ENrpnrRnMENT TelevlsloN, LLC,

Plaintffi-Appellants,
v.

YouTusp, INc., YouTuep LLC, GoocLe, INC.,
D efendant s -App el I e es .

(Additional Caption On the Reverse) On Appeal from the United States District Court for the Southern District of New York (New York City)

BRIEF OF AMICUS CURIAE NATIONAL VENTURE CAPITAL ASSOCIATION IN SUPPORT OF APPELLEES AI{D AFFIRMAI{CE
JOSEPH C. GRATZ MICHAEL H. PAGE RAGESH K. TANGRI

DURIE TANGzu LLP 217 Leidesdorff Street San Francisco, CA 94111

Telephone:

Facsimile:
Attorneys

4T5-362-6666 415-236-6300

for Amicus Curiae

National Venture Capital Ass ociation

Dockets.Justia.com

TH¡

AssocrATroN Pnpvten Leecup Ltvlteo, on behalf of themselves and all others similarly situated, BounN¡ Co., CeL IV ENTenTAINMENT, LLC, CupnRv LeNe Muslc Puet-tsFltNc Corr¿paNy, INc., NerroNal- Mustc PueLIsHgRs' AssoctRtloN, THe Roocens & HevvpRsrgrN ORceNrzATIoN, EoweRo B. Mams Mustc Cotr,ttRNv, Fneopv BtpNsrocr Musrc CoveaNv, dba Bienstock Publishing Company, ALLev Mustc ConpoRRrtoN, X-Rav Doc Mustc,INC., FpoeRnrloN FRaNcRlsE DE Tei.lNts, Tu¡ Muslc Foncp MeotR GRoue, LLC, SrN-Dnove Reconos, LrD, on behalf of themselves and all others similarly situated, MuReo MUSrc PueLTSHING,INC., SraCp TsRp¡ MustC (US),INC., Tse MUStc FOnCp LLC,

Fooreall

Plaintffi-Appellants,
and

Roe¡Rr Tun, dba Los Angeles News Service, Tue Scorrtsu PRpvlen LpRcue LtvttEo,

Plaintffi,
V.

YouTuee, INc., YouTuee, LLC, GoocLe,INC.,
D efe
n

d ant s - App

eIIee

s.

CORPORÄTE DISCLOSURB STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for amicus

curiae certifies the following information:
The National Venture Capital Association

("NVCA") is a not-for-profit

trade association for venture capital firms; it has no parent company, and no

publicly held company owns more than 10% of NVCA's stock.

I¿,nr.n

or

CoNTENTS

Pacn h[o.
CORPORATE DISCLOSURE IDE,NTITY

STATEMENT AND INTEREST OF AMICUS CIIRIAE

.......i
.........................1

..................3 INTRODUCTION .............4 ARGUM8NT............ I. Congress Understood That Internet Companies Faced ...-..-.......4 Real Risks Without a True Safe Harbor........'.. il. To Promote Innovation, the Growth of the Internet, and the Nation's Economy, Congress Enacted the DMCA V/ith aCIear, Strong, and Stable Safe

Harbor. It.

...............6

m.

Courts Have Consistently and Correctly Applied the DMCA's Safe Harbor as Congress Intended, Rejecting ....................9 Efforts to Create Ad-Hoc Exceptions to ....16 .....T7

CERTIFICATE OF COMPLIANCE CERTIFICATE OF

SERVICE........

ii

T¡.eLn or AUTHoRITTES Pacn No.
Cases

Corbís Corp. v. Amazon.com, Inc., 351 F. S,rpp. 2d 1090 (W.D.Wash.
CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d s++ ç+tnCir.2004) .... ...

2004)......

......'.......13

....
. .......

--..--.-...12

Hendrickson v. Amazon.com, Inc., 298F. Supp. 2d9r4 (C.D. Ca1.2003)

...'.........13
...........13

Hendrickson v. eBay, Inc., 16s F. Supp. 2d l0s2 (C.D. CaI.200t) . . ..

...

Perfect 10, Inc. v. CCBill LLC, 4ss r.¡¿ rr02 (9th cir.

2007)
..

.......r4
.....10,
11

UMG Recordíngs, Inc. v. Veoh Networlcs, fnc., 665 F. Supp. 2d 1099 (C.D. Ca1.2009) .. ......

Wolkv. Photobucket.com, No. I0 Civ. 4135, 20Il WL 940056 (S.D.N.Y. Mar. 17,201'1)............ Statutes
17 U.S.C. $

.... 13

512

................-....3

Rules

Federal Rules of Appellate Procedure
Federal Rule of Appellate Procedure Federal Rule of Aþþellate Procedure 29(cX5) ...

29(a).............. .....

........ 1 ........1

Local Rules of the U.S. Court of Appeals for the Second Circuit
Local Rule

29.1........ R.p.)

...'......1

Legislative Materials - Reports
H.R. Rep. No. 105-796 (Conf.
---.-......-----7

111

S. Rep.

No. 105-190

(1998)....

..........4,7,11,12

Legislative Materials - Debate
144 144 144 144 Cong. Cong. Cong. Cong.

Rec. 54,884 (daily ed. May 14,1998) Rec. 54,889 (daily ed. May 14,1998) Rec. 511,889 (daily ed. Oct. 8, 1998).. Rec. H10,619 (daily ed. Oct. 12,1998)

....6,7,8
........7,8 ...........6 ..........9

Other Authorities
IHS Global Insight, Venture Impact: The Economic Importance-,of Venture CapitalBacked Companies to the (1.5. Economy (5'" ed. 2009)

.................2

iv

Pursuant to Federal Rule of Appellate Procedure 29(a), all parties have consented to the filing of this brief by amicus curiae.

IDENTITYAND INTEREST OF AMICUS CURIAE
NVCA represents the interests of more than 400 venture capital firms in the
United States, which together account for over
90o/o

of allthe venture capital funds

under management in the United States. As the only national trade group for the venture community, the NVCA's mission is to foster public awareness of the vital role that venture funding plays in driving the United States economy and to
advocate public policies that stimulate entrepreneurship and innovation.l

Venture capital firms and the companies they fund are profoundly important
to the United States economy. A recent study estimates that, in 2008, venturebacked businesses were responsible for more than 72.1 million American jobs and accounted for more than $2.9 trillion of the United States Gross Domestic Product

("GDP"), representing 1lo/o of private sector jobs, and21% of US GDP. Such

Pursuant to Federal Rule of Appellate Procedure 29(c)(5) and Local Rule 29.1, NVCA states that counsel for the parties has not authored this brief in whole or in part; no party or aparty's counsel contributed money that was intended to fund preparing or submitting the brief; and no one other than NVCA and its members has contributed money that was intended to fund preparing or submitting this brief. Google Ventures, the venture-capital arm of Google Inc., is a member of NVCA, but took no part in authoring this brief and contributed no money that was intended to fund preparing or submitting this brief.

1

economic mainstays as Intel, Federal Express, Home Depot, Genentech, Google,
and Starbucks were incubated with venture funding.

Venture capital firms obviously do not invest randomly; rather, they invest

in some of the most critical sectors of the American economy, and in some of the
most signif,rcant employment markets in the country. In 2008, venture-backed
companies provided over 80% ofjobs in the software sector, over 70%o of jobs in

the semiconductor sector, and over half the jobs in the electronics/instrumentation

sector. Such companies provided the lion's share of the revenue generated in such
sectors as

well:

55%o

in the semiconductor sector, and over two-thirds in the

electronics/instrumentation sector. And while California continues to be the topranked state for both venture-backed employment and revenue, New York is
second, with almo st 1.7

million venture-backed jobs in 2008, and over 5325
year.2

million in revenue generated by venture-backed firms in that

The venture capital industry has a significant interest in this case in

particular because the imposition of copyright liability on YouTube would
discourage innovation and investment in Internet-based businesses. The venture

statistics in this section are taken from Venture Impact: The Economic Importance of Venture Capital-Backed Companies to the U.S. Economy (5th ed. 2009), a study based on data provided by IHS Global Insight. See

'The

http://www.nvca.org/index.php?option:com_content&view:article&id:255&Item id:l03 (last visited Apr. 5,2011).

capital industry, and the entrepreneurs they back, keep the United States at the

cutting edge of technological innovation and economic progress by driving the
economic engine of the Internet. Indeed, in 2008, venture-backed companies contributed over 58% of the jobs in the networking and equipment sector. Because

virtually all Internet businesses involve user-generated content, that economic
engine depends on a clear, fixed, and stable safe harbor that protects service

providers from liability when Internet services are misused by others to infringe copyrights, and when the service providers respond appropriately to "take-down"
notices.

TNTRODUCTIOI\ Twitter. eBay. Facebook. Yelp. Google.
These companies are the stars of the Internet, contributing billions of dollars

ayear to the American economy. They exist only because the American venture capital community risked investing in them, long before they had made a nickel,

while they were still in the "inventor's garage." And they exist only because the

DMCA's safe harbor, l7 U.S.C. $ 512, shields them from liability for their users'
activities, providing investors with cer[ainty that they will not face the sort

of of

ruinous damages Viacom seeks in this case. "In short, by limiting the liability
service providers, the DMCA ensures that the efficiency of the Internet

will

continue to improve and that the variety and quality of services on the Internet continue to expand." S. Rep. No. 105-190 at 8 (1998).

will

In the short sections that follow, we make three simple points. First, without
a clear and stable safe harbor, Internet-based companies face areal, and substantial

threat of liabitity. Second, in enacting the DMCA, Congress acted to remove that

risk, because it recognizedthat predictability and stability were necessary to ensure
investment in new technology. Third, since the DMCA's enactment,

courts-like

the court below here-have consistently and correctly applied the safe harbor

provision to prevent imposition of liability on Intemet companies that behave
responsibly by complying with the DMCA's terms. We respectfully submitthat

this Court should affirm that decision, and thus maintain the settled expectations of
the investing community as to both existing and future investments in this critical
area of the nation's economy.

ARGUMENT

I.

Congress Understood That Internet Companies Faced Real Risks Without a True Safe Harbor

Almost all of today's Internet innovation depends, to some degree, on usergenerated content. Video- and photo-sharing sites are made up almost entirely

of

materials uploaded by users. Blogging services like Blogger and "micro-blogging"
services like Twitter likewise display primarily user-provided content. Social

networking sites like Facebook, too, display messages, photos, videos, and other

4

materials that users provide. Online auction and general e-commerce sites like

eBay and Amazon allow users to make available product photos and descriptions,
as

well

as the user-provided products themselves. Newspaper sites accept

submissions and allow users to comment on stories.

Any time a user provides content, it is possible that the content infringes
some third party's rights in some respect.

It is impossible to determine with

certainty whether that content is licensed merely by inspecting the contentassuming such an inspection were feasible, given the amount of content posted.

This is particularly true in the instant case, where Viacom uploaded alarge amount

of contentthatwas indistinguishable from unauthorized uploads by other users,
and deliberately modif,red authorized content it uploaded in order to make

it look

like unauthorized content.

,See

YouTube Br. at 45-47.

The only way for the operator of an Internet site to know with any certainty

that aparticular clip was uploaded without permission is for the copyright holder to

notiff the site. That

is the principle upon which the

DMCA is built: that so long

as

Internet sites take down complained-of materials, they are not liable for infringing
materials uploaded by users.
Congress was keenly aware of this fundamental risk when

it enacted the

DMCA. "In the ordinary course of their operations

service providers must engage

in all kinds of acts that expose them to potential copyright infringement liability.

For example, service providers must make innumerable electronic copies by

simply transmitting information over the Internet. Certain electronic copies are
made to speed up the delivery of information to users. Other electronic copies are made in order to host World Wide Web sites. Many service providers engage in

directing users to sites in response to inquiries by users or they volunteer sites that
users may find attractive. Some of these sites might contain infringing material."

144 Cong. Rec. 54,884 (daily ed. May 14, 1998) (statement of Sen. Orrin Hatch).

As explained below, Congress acted to eliminate that risk when it enacted the

DMCA.

il.

To Promote Innovation, the Growth of the Internet, and the Nation's Economy, Congress Enacted the DMCA With a Clear, Strong, and Stable Safe Harbor.
Congress intended to promote investment by amicus when it drafted the

DMCA's safe-harbor provisions. Congress recognized that-in light of the risks
outlined sþeys-É6[t]he OSPs and ISPs needed more certainty in this areain order

to atTraclthe substantial investments necessary to continue the expansion

and

upgrading of the Intemet." 144 Cong. Rec. S11,889 (daily ed. Oct. 8, 1998)
(statement of Sen. Onin Hatch). A wealth of evidence supports the conclusion that

the safe harbor of $ 512 was intended to "provide a clear path for OSPs to operate

without concern for legal ramifîcations or copyright infringement that may occur in
the regular course of the operation of the Internet, or thaÍ. occur without the OSPs

6

knowledge." 144 Cong. Rec. 54,889 (daily ed. May 14,1998) (statement of

Sen.

John Ashcroft) (emphasis added). As the Conference Report on the DMCA clearly stated, Congress intended the safe harbor to "providef] greater certainty to service

providers concerning their legal exposure for infringements that may occur in the
course of their activities." H.R. Rep. No. 105-796 aI72 (Conf. Rep.). Senator

Hatch likewise noted, "[W]ithout clarification of their liability, service providers may hesitate to make the necessary investment" in the expansion of the speed and
capacity of the Internet. I44 Cong. Rec. 54,884 (daily ed. May 14,1998) (statement of Sen. Orrin Hatch).

To address those concerns, and to promote continued investment in Intemet
companies, Congress passed the DMCA and its safe harbor provisions. Congress made clear that it was providing the protection of the safe harbor because it knew

that investment in those companies was vital to the continued growth of the Internet, and the nation's economic health. As the Senate Report observed: "by

limiting the liability of service providers, the DMCA ensures that the efficiency of
the Internet

will continue to improve and that the variety and quality of services on will continue to expand."
S. Rep.

the Internet

No. 105-190 at 8 (1998). Senator

Ashcroft echoed those sentiments: "fw]ithout these issues being clearly delineated
we would have faced a future of uncertainty regarding the growth of Intemet and

potentially whether it could have operated at all. Make no mistake that the

7

clarification of on-line service provider liability was one of my fundamental
concerrts in this debate. While this was not the only crucial change in the

legislation it is a change that I found essential for this legislation to even be
considered, which is why Title

I of my original legislation was devoted to clearly

defining liability." 144 Cong. Rec. 54,889 (daily ed. May 14,1998) (statement of
Sen. John Ashcroft).

Similarly, Senator Hatch rccognized that "the potential of the Internet, both
as information highway and marketplace, depends on its speed and capacity.

Without clarification of their liability, service providers may hesitate to make the
necessary investment to fulf,rll that potential. In the ordinary course of their

operations service providers must engage in all kinds of acts that expose them to

potential copyright infringement liability." 144 Cong. Rec. 54,884 (daily ed. May
14, 1998) (statement of Sen. Orrin Hatch). Senator Hatch correctly understood that the safe harbor was necessary to solve that problem: "In short, by limiting the

liability of service providers, the DMCA ensures that the efficiency of the Internet

will continue to improve and that the variety and quality of services on the Internet will continue to expand." Id.
at 54,884-85.

Congress was not promoting the growth of the Internet for the Internet's

sake. It understood that the Internet provided jobs and strengthened the nation's
economic well-being. "As the digital revolution sweeps over industries and

8

countries it will provide new opportunities for market growth and innovation,
easier access to remote information, and new distribution channels for products and services. The United States clearly leads the world in software products such
as computer programs, movies, music, books and other multimedia products.

In

a

post-GATT, post-NAFTA environment-in which we have made an implicit national economic decision to essentially let low-end jobs go and migrate to
developing countries-we have an obligation as policymakers to ensure that we
establish the climate in which America garners the lion's share of the high end, knowledge-based jobs of the new global economy." I44 Cong. Rec. Hl0,619

(daily ed. Oct. 12,1998) (statement of Rep. Edward Markey).
Congress' insight was coffect, and (as explained at pages

l-2,

above) the

solution it crafted has paid handsome dividends for the country's economy.
Investment in Internet companies, and those companies themselves,

thrived-all

protected by the stability and predictability created by the DMCA's safe harbor provisions.

ilI.

Courts Have Consistently and Correctly Applied the DMCA's Safe Harbor as Congress Intended, Rejecting Efforts to Create Ad-Hoc Exceptions to It.
The DMCA's safe harbor, of course, is not self-executing. It must

be-and,

thankfully, to date has been-correctly and consistently interpreted and applied by
the courts, in the face of a series of challenges brought by copyright holders asking

9

to carve ad-hoc exceptions out of the protection provided for by Congress. In each of the cases we discuss briefly below, and as is the case here, the copyright holders
sought to justifli an ad-hoc exception based on the supposed bad intent or generalized knowledge of the Internet company, and based on the assertion that

dire harm would befall the copyright holder were it forced to comply with the terms of the statute as enacted by Congress. In each case, the courts correctly declined to do so, appreciating that a safe harbor with ad-hoc exceptions based on
state of mind

or geteralized knowledge, and the potential impact on third parties, is

no safe harbor al all. Thus, for example, in UMG Recordings, Inc. v. Veoh l{etworlcs, Inc.,
665 F. Supp. 2d 1099 (C.D. CaL.2009), the plaintiff urged the court to disregard

Veoh's3 compliance with the DMCA, and award astronomical statutory damages,
based on allegations that, inter

alia,Yeoh "knew that it was hosting an entire

category of content-music-that was subject to copyright protection," that "Veoh should have sought out actual knowledge of other infringing videos by searching

its system for all videos by the artists identified in the zuAA notices," and that "its
founders, employees, and investors knew that widespread infringement was

occurring . . . ." The Veoh court correctly rejected those arguments, reiterating that Veoh was a "startup" Internet company whose venture backers included NVCA members Intel Capital and Adobe Systems.
3

10

"[t]he DMCA notif,rcation procedures place the burden of policing copyright
infringement-identifyitrg the potentially infringing material and adequately
documenting infringement-squarely on the owners of the copyright." Id. at 1108, 1110, 1111 (quotingPerfect 10, Inc. v. CCBíll LLC,488 F.3d II02,1113 (9th Cir.

2007)). The

Veoh court emphasized that digressing from the clear dictates of the

DMCA would defeat its essential purposes:
No doubt it is common knowledge that most websites that allow users to
contribute material contain infringing items.

If

such general awareness were

enough to raise a "red flug," the DMCA safe harbor would not serve its purpose of "facilitatfing] the robust development and world-wide expansion

of electronic commerce, communications, research, development, and
education in the digital ã8C," and "balancfing] the interests of content

owners, on-line and other service providers, and information users in a way that

will

foster the continued development of electronic commerce and the

growth of the Internet." S. Rep. 105-190 at I-2 (1998); H.R. Rep. 105-

551(il)

at2l.

See also Perfect 10, Inc.

v. VÌsa Int'l Serv. Ass'n,494F.3d

788,794 n.2 (9th Cir.2007). Congress explained the need to limit service
providers' liability by noting that "[i]n the ordinary course of their operations
service providers must engage in all kinds of acts that expose them to

potential copyright infringement liability.... [B]y limiting the liability of

11

service providers, the DMCA ensures that the efficiency of the Internet

will

continue to improve and that the variety and quality of services on the Internet

will continue to expand."

S. Rep. 105-190 at 8.

Id. at 1111.
Similarly, the Fourth Circuit, in CoStar Group, Inc. v. Loopl{et, lnc.,373

F.3d 544 (4thCir.2004), affirmed both the salutary purposes of the DMCA and its

firm grounding in common law principles, rejecting a claim lhat a real estate listing
site was vicariously liable for infringing photographs posted by users because the

site's manual review of those photographs gave it knowledge of the infringement:a
'Where

the infringing subscriber is clearly directly liable for the same act, it

does not make sense to adopt a rule that would lead to the

liability of

countless parties whose role in the infringement is nothing more than setting

up and operating a system that is necessary for the functioning of the

Internet.... The court does not find workable a theory of infringement that would hold the entire Internet liable for activities that cannot reasonable [sic]
be deterred.

Id. at 548-49 (quoting

Relígious Technology Center v. Netcom On-Line

Communication Services, Inc., 907 F. Supp. 1361, 1372-73 (N.D. Cal.1995)).
a

LoopNet's venture backers included NVCA members Trinity Ventures and Rustic Canyon Partners.

1,2

Time and again, nascent venture-backed Intemet companies, which have
since grown to be the mainstays of the modem economy, have been protected from

ruinous secondary liability claims by the DMCA, and by courts' strict adherence to its terms. In Hendríckson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Cal. 2001),
eBay5 was accused of multiple instances of copyright infringement for repeated

listings of a film ("Manson") on the theory that eBay should know that all DVD
copies of that work were unauthorized, andthat repeated notices of some

infringing sales should shift the burden of searching out others from the copyright
holder to the website. The court correctly rejected that argument. And in multiple
cases against Amazon,6 courts have repeatedly rejected claims that either

generalized knowledge of infringement, or even repeated notice of infringement by

the same users, vitiates the DMCA safe harbors. See, e.g., Hendrickson

v.

Amazon.com, Lnc.,298 F. Supp. 2d914 (C.D. CaL.2003); Corbis Corp. v' Amazon.com, 1nc.,351 F. S"pp. 2dI0g0 (W.D.Wash. 2004).

More recently, inWotkv. Photobucket.com,t No. 10 Civ. 4135,2011 WL
940056 (S.D.N.Y. Mar. 17,2011), the court denied a request for an injunction

s

eBay was backed, among others, by NVCA member Benchmark Capital.

uA^uron's venture backing included NVCA member Kleiner Perkins Caulf,reld &
Byers.

t Photobrcket is backed by News Corporation, NVCA member Oak Investment
Partners, and others.

13

based on alleged posting of copyrighted photographic works, declining to expand

liability to works other than those specifically identified by the plaintiff: "The
Court does not accept her invitation to shift the burden from her to

Photobucket. . . ." Id. at *5 (citing Veoh,665 F. Supp. 2dat 1110 andPerfect 10, Inc. v. CCBill LLC,488 F.3d 1102,1113 (9th Cir.2007)).

In each of these cases, the NVCA members who enabled the creation and
growth of these now-prominent Internet successes were able to do so only because
they could be confident that their investments would not be wiped outby post hoc

imposition of astronomical statutory damages for secondary liability. Moreover,
absent clear and consistent safe harbors, it benefits a startup company and its

backers little

if, after tens of millions of dollars in litigation

costs,

it eventually

prevails. Veoh, discussed above, won ils case, but was bankrupted by the costs of litigation before it prevailed. Only the clearest of unambiguous legal protection
can prevent such "death by litigation."

That protection flows, in the main, from the DMCA's clear and deliberate allocation of the rights and obligations between copyright holders and Internet
service providers. "The DMCA notification procedures place the burden

of

policing copyright infringement-identiffing the potentially infringing material
and adequately documenting infringement-squarely on the owners of the

copyright

;'

Perfect 10, Inc. v. CCBíll LLC,488 F.3d 1102,1 113 (9th Cir.2007).

I4

If Appellants

succeed in erasingThat clear allocation, rational investors such as the

NVCA's members will be loath to risk their clients' capital on the next eBay,
Amazon, Google, Twitter, Facebook, or Yelp.

CONCLUSION
Amicus respectfully submit that this Court should aff,rrm the decision below,
the clear language and intent of Congress, and the weight of authority addressed
above, by confirming that the investment community may continue to support

innovative entrepreneurs who advance the development of the Internet and the nation's economic progress.

DATED: April

7

,2011

Respectfully submitted,

is/ Michael H. Page JOSEPH C. GRATZ MICHAEL H. PAGE RAGESH K. TANGRI DURIE TANGRI LLP Attorneys þr Amicus Curìae National Venture Capital As s ociation

15

CERTTFICATE OF COMPLTANCE
Pursuant to Federal Rule of Appellate Procedure 32(aX7XC),

I certify that

this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5XA),
because

it is written in 14-pt Times New Roman font, and with the type-volume

limitations of Fed. R.App.P.32(a)(7XB), because it contains3977 words,
excluding the portions excluded under Fed. R. App. P.32(a)(TXAXiii). This count
is based on the word-count feature of Microsoft Word.

DATED: April 7,2011

/s/ Michael H. Pase JOSEPH C. GRATZ MICHAEL H. PAGE RAGESH K. TANGRI

DURIE TANGzu LLP
Attorneys þr AmÌcus Curiae N ational Ventur e Cøpital As s ociation

t6

CBRTIFICATE OF SERVICE
I hereby certiff that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Second Circuit by using the
appellate CVÍ/ECF system on April I

,201I.

Participants in the case who are registered CIWECF users will be served by the appellate CN¡IECF system.

I further certifo that, for any participants in the case who

are not registered

CÀ/ÍECF users, I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery

within 3 calendar days.

DATED: April L

7,2011 '

/s/ Míchael H. Page JOSEPH C. GRATZ MICFIAEL H. PAGE RAGESH K. TANGRI

DURIE TANGRI LLP
Attorneys

for Amicus Curíae
As
s

Nqtional Ventur e Capital

ociation

T7