Cariou v. Prince

Filing 130

AMICUS BRIEF, on behalf of Amicus Curiae Google, Inc., FILED. Service date 11/02/2011 by CM/ECF. [436711] [11-1197]--[Edited 11/03/2011 by HT]

11-1197-cv
IN THE

United States Court of Appeals
FOR THE SECOND CIRCUIT

PATRICK CARIOU,

Plaintiff-Appellee,

v.
RICHARD PRINCE,

Defendant-Appellant,
GAGOSIAN GALLERY, INC., LAWRENCE GAGOSIAN,
Defendants-Cross-Defendants-Appellants.
___________
On Appeal from the United States District Court
for the Southern District of New York
BRIEF OF AMICUS CURIAE GOOGLE INC.
IN SUPPORT OF NEITHER PARTY

Of Counsel:
Oliver Metzger
GOOGLE INC.
1600 Amphitheatre Parkway
Mountain View, CA 94043
650-253-0000

Joseph C. Gratz
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
415-362-6666
Attorneys for Amicus Curiae
Google Inc.

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for
amicus curiae certifies the following information:
Google Inc. has no parent corporation, and no publicly held
corporation owns ten percent or more of its stock.

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TABLE OF CONTENTS
PAGE NO.
IDENTITY AND INTEREST OF AMICUS CURIAE ...........................1
SUMMARY OF ARGUMENT ................................................................2
ARGUMENT ..........................................................................................4
I.

A use need not comment on the original in order
to be transformative. .........................................................4

II.

The court should be particularly cognizant of the
impact of its decision on digital uses of many
works at once, which rarely comment but are
frequently held to be transformative. ...............................9

III.

If a use is otherwise fair, it does not matter
whether the defendant sought a license..........................17

CONCLUSION .....................................................................................20
CERTIFICATE OF COMPLIANCE.....................................................21
CERTIFICATE OF SERVICE..............................................................22

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TABLE OF AUTHORITIES
PAGE NO.
Cases
A.V. v. iParadigms, LLC,
562 F.3d 630 (4th Cir. 2009) .................................................... 13, 14, 16
Atari Games Corp. v. Nintendo of Am. Inc.,
975 F.2d 832 (Fed. Cir. 1992)............................................................... 15
Authors Guild v. Google Inc.,
No. 05 Civ. 8136 (S.D.N.Y. filed Sep. 20, 2005) ..................................... 2
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) .......................................................... 7, 8, 16
Blanch v. Koons,
467 F.3d 244 (2d Cir. 2006) .................................................................. 18
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ...................................................................... passim
Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc.,
150 F.3d 132 (2d Cir. 1998) .............................................................. 4, 18
Eldred v. Ashcroft,
537 U.S. 186 (2003) ................................................................................ 5
Emerson v. Davies,
8 F. Cas. 615 (C.C.D. Mass. 1845) ......................................................... 5
Field v. Google Inc.,
412 F. Supp. 2d 1106 (D. Nev. 2006) ....................................... 11, 12, 16
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) ........................................................ passim

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Lennon v. Premise Media Corp.,
556 F. Supp. 2d 310 (S.D.N.Y. 2008) ................................................... 18
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
387 F.3d 522 (6th Cir. 2004) ................................................................ 15
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) .................................................. 12, 13, 16
SARL Louis Feraud Int’l v. Viewfinder Inc.,
627 F.Supp. 2d 123 (S.D.N.Y. 2008) .................................................... 18
Sony Computer Entm’t, Inc. v. Connectix Corp.,
203 F.3d 596 (9th Cir. 2000) ................................................................ 15
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ................................................................................ 6
Other Authorities
Matthew Sag, Copyright and Copy-Reliant Technology,
103 NW. U. L. REV. 1607 (2009)...................................................... 15, 16
Pamela Samuelson, Unbundling Fair Uses,
77 FORDHAM L. REV. 2537 (2009) ................................................... 15, 16
Pierre N. Leval, Toward a Fair Use Standard,
103 HARV. L. REV. 1105 (1990) ..................................................... passim
U.S. Const., art. I, § 8 ................................................................................ 5
Rules
Fed. R. App. P. 29(a).................................................................................. 1

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Pursuant to Federal Rule of Appellate Procedure 29(a), all parties
have consented to the filing of this brief by amicus curiae.
IDENTITY AND INTEREST OF AMICUS CURIAE 1
Amicus Google Inc., founded in 1998, is a diversified technology
company headquartered in California’s Silicon Valley. Google’s mission
is to organize the world’s information and make it universally accessible
and useful. Google’s history has coincided with, and contributed to, a
vast expansion of the internet and computer technologies that have
profoundly influenced human society.
Like virtually every other internet company, Google depends on
fair use. Google’s search engine works by “crawling” the web, indexing
and caching web pages for the purpose of allowing users to find the
information they’re looking for. The YouTube and Blogger services,
both owned by Google, thrive on users’ ability to incorporate and make
fair uses of each other’s creations. And Google has relied on the fair use
doctrine in its project to digitize millions of library books, displaying

No person other than Google and its counsel, including parties to this
action and their counsel, authored this brief in whole or in part or
contributed money that was intended to fund preparing or submitting
this brief.
1

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only “snippets” but allowing users to find books by searching their full
text—creating, in essence, the world’s most useful card catalog. 2
Google has litigated and won fair use cases—some of which shed
light on the issues in this case and are discussed in this brief. While
Google takes no position as to the ultimate merits of this case, Google
has a strong interest in the careful and considered application of the
fair use doctrine. It submits this amicus brief because whether or not
Prince’s use of Cariou’s photographs constitutes fair use, the opinion
below diverges in dangerous ways from the mainstream of fair use
analysis, and threatens to distort the law in ways that would make it
more difficult for companies like Google to offer innovative and useful
services to their users.
SUMMARY OF ARGUMENT
Google submits this brief to make three simple points.
First, the Court should make clear that commentary and criticism
are just two ways that a preexisting work may be “used as raw

The question whether this program constitutes fair use is currently
pending in the United States District Court for the Southern District of
New York. See Authors Guild v. Google Inc., No. 05 Civ. 8136 (S.D.N.Y.
filed Sep. 20, 2005).

2

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material, transformed in the creation of new information, new
aesthetics, new insights and understandings. ” Pierre N. Leval, Toward
a Fair Use Standard, 103 HARV. L. REV. 1105, 1111 (1990) (hereinafter
“Leval”). Such use is transformative, whether or not there is
commentary on or criticism of the original. To the extent the opinion
below may be read to require commentary or criticism for a finding of
transformative use, it misstates the law.
Second, the reasoning of the opinion below jeopardizes an
emerging category of highly transformative digital uses that do not
comment on the works they incorporate. These uses, for purposes such
as search indexing, have a wholly different purpose than the expressive
works they use. For that reason, they are transformative even though
they do not comment or criticize.
Third, the Court should make clear that that one making a fair
use does not need to ask the copyright holder’s permission in order to
avoid being found to be in “bad faith” and being denied the protection of
the fair use doctrine on that ground. But “[i]f the use is otherwise fair,
then no permission need be sought or granted.” Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 585 n.18 (1994).

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ARGUMENT
I.

A use need not comment on the original in order to be
transformative.
The opinion below states that “all of the precedent that this Court

can identify imposes a requirement that the new work in some way
comment on, relate to the historical context of, or critically refer back to
the original works.” (SPA-016.) Even more narrowly, the opinion below
holds that “Prince’s Paintings are transformative only to the extent that
they comment on [Cariou’s] photos.” (SPA-018.)
This is simply not the law. This Court should make clear that the
lower court’s view of transformative use is unduly limited, and that
courts may find uses transformative whenever the existing work is
“transformed in the creation of new information, new aesthetics, new
insights and understandings.” Castle Rock Entm’t, Inc. v. Carol Publ’g
Grp., Inc., 150 F.3d 132, 142 (2d Cir. 1998) (quoting Leval at 1111).
Commentary is only one of myriad types of use whose purpose and
character is transformative, militating in favor of a finding of fair use.
To be sure, a use is not transformative which merely “supersedes the
objects of the original” without “add[ing] something new, with a further
purpose or different character.” Campbell, 510 U.S. at 578-79 (citing

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Leval at 1111). Piracy is not transformative. But copyright law exists
“to stimulate creativity for public illumination,” Leval at 1111, and that
creativity frequently involves the incorporation of existing works.
The purpose of the fair use doctrine is not merely to safeguard
criticism and commentary, but more broadly to fulfill the purposes of
copyright—“to promote the Progress of Science and useful Arts.” U.S.
Const., art. I, § 8, cl. 8.3 Fair use is necessary to allow for this forward
movement of knowledge and artistic expression. As Justice Story
recognized, “[e]very book in literature, science and art, borrows, and
must necessarily borrow, and use much which was well known and used
before.” Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845),
quoted in Campbell, 510 U.S. at 575. By providing a “guarantee of
breathing space within the confines of copyright,” Campbell, 510 U.S. at
579, fair use safeguards the borrowing which facilitates innovation.

Fair use serves other important purposes as well—for example, as one
of the “traditional contours of copyright” that make copyright
compatible with the First Amendment. Eldred v. Ashcroft, 537 U.S.
186, 221 (2003).
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Judge Leval’s article, from which the Supreme Court took the
concept of transformative use, sheds light on the breadth of uses which
are properly regarded as transformative:
Transformative uses may include criticizing the quoted work,
exposing the character of the original author, proving a fact, or
summarizing an idea argued in the original in order to defend or
rebut it. They also may include parody, symbolism, aesthetic
declarations, and innumerable other uses.
Leval at 1111.4
Thus, in order to be transformative, “[t]he use must be productive
and must employ the quoted matter in a different manner or for a
different purpose from the original.” Id. Where “the secondary use
adds value to the original—if the quoted matter is used as raw material,
The protection of transformative uses, of course, is only one way that
fair use fulfills the purposes of copyright. One’s use does not need to be
transformative in order to be fair. For example, a use which is not
transformative but which has only a minimal effect on the market for
the original may still be found to be a fair use. Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 448-50 (1984) (finding home
taping of broadcast television to be a fair use, notwithstanding lack of
transformative use). But because it was the lower court’s analysis of
the transformative use prong that diverges most radically from this
Circuit’s law, we focus here only on that aspect of the first fair use
factor.
4

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transformed in the creation of new information, new aesthetics, new
insights and understandings— this is the very type of activity that the
fair use doctrine intends to protect for the enrichment of society.” Id.
The productive recontextualization of existing works, with or
without commentary on those works, is one common type of
transformative use. One of the best examples of such use is illustrated
by Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d
Cir. 2006). In that case, the defendant had published a book about the
Grateful Dead called Grateful Dead: The Illustrated Trip. The
defendant included in the book seven concert posters in which the
plaintiff owned copyright. These posters were not merely informative,
but also artistic; they were used by the defendant as part of “a collage of
images, text, and graphic art designed to simultaneously capture the
eye and inform the reader.” Id. at 606.
Some of the posters were accompanied by referencing
commentary, albeit commentary that did not relate to the artistic
merits of the images but instead to their subject. Some were not the
subject of any criticism or commentary at all. The plaintiff argued that
“merely placing poster images along a timeline is not a transformative

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use,” and that “each reproduced image should have been accompanied
by comment or criticism related to the artistic nature of the image.” Id.
at 609. In other words, the plaintiff in Dorling Kindersley argued, as
Cariou does here, that placing the images into a new context that gives
them a new meaning is insufficient, and that there must be
commentary upon the images themselves.
This Court rejected that argument. Because the defendant’s “use
of the disputed images is transformative both when accompanied by
referencing commentary and when standing alone,” the defendant
“was not required to discuss the artistic merits of the images” in order
to show fair use. Id. at 611 (emphasis added). Placing the images into
a new context for a different purpose was found to be transformative.
This was true even though there was some overlap with the original
purpose: the original posters had a dual aesthetic and promotional
purpose, and the use of those posters in the book had a dual aesthetic
and informative purpose. Id. at 610.
Thus, even where “the concert poster image does not necessarily
enhance the reader’s understanding” of the biographical text, id. at 611
n.4, the use was nonetheless transformative. In other words,

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commentary and criticism are not, as the opinion below in this case
seems to say, the sine qua non of transformative use.
II.

The court should be particularly cognizant of the impact of
its decision on digital uses of many works at once, which
rarely comment but are frequently held to be
transformative.
The district court’s narrow formulation of the test for

transformation is particularly problematic in the context of digital
works. We raise this issue not because this problem is presented by the
facts of this case, but because we are concerned that collapsing the
transformative use inquiry to a question of criticism or commentary, as
the district court did, runs contrary to case law approving of a wide
range of emerging and productive fair uses in the digital realm.
In four important recent cases, courts have found transformative
use, and fair use, where large-scale copying of works in digital form was
required to achieve a socially useful goal. These four cases provide
examples of uses that do not comment on or criticize preexisting works,
but in which preexisting works are “used as raw material, transformed
in the creation of new information[.]” Leval at 1111.
In Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003), Arriba
operated an image search engine on the Internet. As part of that search

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engine, Arriba stored and displayed small, “thumbnail” versions of
images appearing on various websites, so that those thumbnails could
be provided in response to search queries. Some of those images were
copyrighted photographs taken by Kelly, who sued for copyright
infringement. Arriba asserted a defense of fair use, primarily on the
ground that incorporating images from the web into an image search
engine is a transformative use. The Court of Appeals agreed:
Although Arriba made exact replications of Kelly’s images, the
thumbnails were much smaller, lower-resolution images that
served an entirely different function than Kelly’s original images.
Kelly’s images are artistic works intended to inform and to engage
the viewer in an aesthetic experience. His images are used to
portray scenes from the American West in an aesthetic manner.
Arriba’s use of Kelly’s images in the thumbnails is unrelated to
any aesthetic purpose. Arriba’s search engine functions as a tool
to help index and improve access to images on the internet and
their related web sites.
Id. at 818. Kelly argued that because Arriba did not add any
commentary or other expression to the images, Arriba’s use was not

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transformative. The Court of Appeals disagreed, holding that “Arriba’s
use of the images serves a different function than Kelly’s use—
improving access to information on the internet versus artistic
expression.” Id. at 819. The court held that “[b]ecause Arriba’s use is
not superseding Kelly’s use but, rather, has created a different purpose
for the images, Arriba’s use is transformative,” even though it did not
comment on or criticize the images. Id.
Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006), dealt
with a different type of digital use: web caching. Along with each
search result on the Google search engine, Google provides a link to a
cached version of the web page in question. “When clicked, the ‘Cached’
link directs an Internet user to the archival copy of a Web page stored
in Google’s system cache, rather than to the original Web site for that
page.” Id. at 1111 n.10. The court found that this cache serves a
number of purposes, including to “allow users to view pages that the
user cannot, for whatever reason, access directly”; to “determine how a
particular Web page has been altered over time”; and to “allow users to
immediately determine why a particular page was deemed responsive
to their search query, by highlighting the terms from the user’s query as

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they appear on the page.” Id. at 1111-12 nn.15-16. The court found
Google’s caching to be transformative because “Google’s presentation of
‘Cached’ links to the copyrighted works at issue here does not serve the
same functions” for which the copyrighted works were intended. Id. at
1118. It found the purpose of the cache to be transformative, rather
than superseding or substitutive. The court concluded that “[b]ecause
Google serves different and socially important purposes in offering
access to copyrighted works through ‘Cached’ links and does not merely
supersede the objectives of the original creations,” the use was
transformative, and was ultimately found to be fair use. Id. at 1119.
In Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir.
2007), the facts were similar to those in Kelly. At issue was Google
Image Search. The court described the service as follows: “In response
to a search query, Google Image Search identifies text in its database
responsive to the query and then communicates to users the images
associated with the relevant text. . . . Google Image Search provides
search results as a webpage of small images called ‘thumbnails,’ which
are stored in Google’s servers.” Id. at 1155. Perfect 10, a copyright

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holder in some of the images that could be located through Google
Image Search, sued, and Google asserted a fair use defense.
The Ninth Circuit held that Google’s use was “highly
transformative” and a fair use. Id. at 1165. The use was held to be
transformative because “[a]lthough an image may have been created
originally to serve an entertainment, aesthetic, or informative function,
a search engine transforms the image into a pointer directing a user to
a source of information.” Id. Citing Campbell, the court observed that
“a search engine may be more transformative than a parody because a
search engine provides an entirely new use for the original work, while
a parody typically has the same entertainment purpose as the original
work.” Id. “In other words, a search engine puts images in a different
context so that they are transformed into a new creation.” Id. (internal
quotation omitted).
In A.V. v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009), the
defendant operated a service called Turnitin. Teachers could submit
student papers to Turnitin, and Turnitin would attempt to determine
whether those papers had been plagiarized. Turnitin was able to do so,
in part, by maintaining and searching a database of many of the

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student papers that had previously been submitted for analysis.
Students who owned copyright in some of those archived papers sued,
and the operators of Turnitin asserted a fair use defense.
The Fourth Circuit held the use to be transformative and found
fair use, expressly rejecting the argument that transformative use
requires some commentary on or alteration of the original work. “The
use of a copyrighted work need not alter or augment the work to be
transformative in nature. Rather, it can be transformative in function
or purpose without altering or actually adding to the original work.” Id.
at 639. Because the “use of these works was completely unrelated to
expressive content and was instead aimed at detecting and discouraging
plagiarism,” the court observed: “iParadigms’ use of plaintiffs’ works
had an entirely different function and purpose than the original works;
the fact that there was no substantive alteration to the works does not
preclude the use from being transformative in nature.” Id. at 639-40
These findings of transformative use in connection with nonexpressive uses of expressive works add to the body of cases finding
transformative use in connection with non-expressive uses of nonexpressive works. See, e.g., Atari Games Corp. v. Nintendo of Am. Inc.,

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975 F.2d 832, 843 (Fed. Cir. 1992) (copying in order “to discern the
unprotectable ideas” has a purpose different from the original, weighing
in favor of fair use); Sony Computer Entm’t, Inc. v. Connectix Corp., 203
F.3d 596, 606 (9th Cir. 2000) (holding a software program allowing
PlayStation games to be played on personal computers transformative
because it “affords opportunities for game play in new environments”);
Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 544
(6th Cir. 2004) (finding fair use where the defendant used the
copyrighted computer program “for a different purpose”—to unlock
printer functionality, rather than to calculate printer toner levels).
Scholars have given different names to these types of uses.
Professor Samuelson refers to them as “information-access-promoting
uses.” Pamela Samuelson, Unbundling Fair Uses, 77 FORDHAM L. REV.
2537, 2610 (2009). Professor Sag refers to them as “copy-reliant
technologies.” Matthew Sag, Copyright and Copy-Reliant Technology,
103 NW. U. L. REV. 1607, 1608 (2009). In Professor Sag’s formulation,
“Copy-reliant technologies, such as Internet search engines and
plagiarism detection software, do not read, understand, or enjoy
copyrighted works, nor do they deliver these works directly to the

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public. They do, however, necessarily copy them in order to process
them as grist for the mill, raw materials that feed various algorithms
and indices.” Id.
Both Professor Samuelson and Professor Sag argue that while the
courts in these cases found the use to be “transformative,” that
characterization is something of a misnomer. They argue that it elides
the distinction between traditional transformative use, such as that
found in the Campbell and Dorling Kindersley cases, and the use of
expressive works for non-expressive purposes that was at issue in Kelly,
Field, Perfect 10, and iParadigms. See Sag at 1647 (“It would be better
to recognize that uses which do not relate to the expressive appeal of a
work may find favor under the first fair use factor—whether they
qualify as transformative in the expressive sense or not.”); Samuelson
at 2612 (“The court may have felt compelled to characterize the
thumbnails as transformative to avoid the presumption of harm to the
market that Campbell endorsed when a second comer’s use was both
commercial and nontransformative. But it would be more
straightforward simply to say that Arriba Soft’s thumbnail images

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served an entirely different function than Kelly’s original images, that
is, they had an orthogonal purpose.”).
But whether this sort of nonexpressive, “orthogonal” use is a
subspecies of transformative use or a separate justification for finding
fair use under the first factor, it is an important factor and permits
productive uses of copyrighted works which do not merely “supersede[]
the objects” of the original works. Campbell, 510 U.S. at 578. These
uses are fair, even though they do not satisfy the district court’s
putative “requirement that the new work in some way comment on,
relate to the historical context of, or critically refer back to the original
works.” (SPA-016.)
This Court should make clear that commentary and criticism are
just some of the many ways in which a use may have a “purpose and
character” that militates in favor of a finding of fair use.
III. If a use is otherwise fair, it does not matter whether the
defendant sought a license.
The opinion below held that “Prince’s bad faith is evident” from
the fact that Prince did not ask Cariou or his publisher for permission
to use Cariou’s photographs. (SPA-024-25.) This does not follow, as the
Supreme Court explained in Campbell. “If the use is otherwise fair,

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then no permission need be sought or granted.” Campbell, 510 U.S. at
585 n.18 (defendant had sought and been denied permission).
This principle has been recognized in numerous cases in this
Circuit and elsewhere. For example, in Blanch v. Koons, 467 F.3d 244,
256 (2d Cir. 2006), the photographer Blanch argued that artist Koons
acted in bad faith on the sole ground “that Koons used Blanch’s
photograph without first asking her permission.” This Court squarely
rejected that contention, holding that “it can hardly be said to have
been an act of bad faith for Koons to have neither sought nor been
granted permission for the use of ‘Silk Sandals’ if, as we find, the use is
otherwise fair.” Id. (quotation omitted). See also Castle Rock Entm’t,
Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 146 (2d Cir. 1998)
(continued use after objection by copyright holder is a “factor that is of
no relevance to the fair use equation”); Lennon v. Premise Media Corp.,
556 F. Supp. 2d 310, 325 (S.D.N.Y. 2008) (defendant’s failure to seek a
license did not show bad faith or weigh against a finding of fair use);
SARL Louis Feraud Int’l v. Viewfinder Inc., 627 F. Supp. 2d 123, 130-31
(S.D.N.Y. 2008) (that the defendant had a limited license and made

18

uses which went beyond that license did not weigh against a finding of
fair use).
A fair use cannot be turned foul simply because the user failed to
ask for a license that he did not need. Asking for permission (or failing
to do so) cannot make up any part of the fair use inquiry, because it
would always lead to circularity. If the remainder of the analysis shows
that the use is not fair but infringing, it would be odd indeed if the use
was deemed not to have required a license merely because the infringer
showed good faith by seeking one. Conversely, if the remainder of the
analysis shows that the use is not infringing but fair, it would be even
more perverse for the fair user to be deemed an infringer because he did
not ask for permission that, but for his failure to ask for it, he would not
have needed. The mere failure to seek a license should never be the
factor that requires one to seek a license.
Google—along with thousands of other companies that drive the
nation’s economy—makes fair uses all day, every day. It would be
woefully inefficient if, in order to maintain its meritorious fair use
arguments, Google has to run around asking copyright holders for

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licenses it does not need, simply in order to make sure that it continues
not to need those licenses.
CONCLUSION
The reasoning of the opinion below risks collateral damage to a
wide range of productive, transformative, socially beneficial uses of
copyrighted works. Whether Prince’s paintings are found to be fair use
or foul, this Court should make clear that there is more to
transformative use than merely commentary or criticism and that
failure to ask permission does not show bad faith.

DATED: November 2, 2011

Respectfully submitted,

Of Counsel:

/s/ Joseph C. Gratz
Joseph C. Gratz
DURIE TANGRI LLP
Attorneys for Amicus Curiae
Google Inc.

Oliver Metzger
GOOGLE INC.
1600 Amphitheatre Parkway
Mountain View, CA 94043

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I
certify that this brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5)(A), because it is written in 14-pt Century Schoolbook
font, and with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B),
because it contains 3,995 words, excluding the portions excluded under
Fed. R. App. P. 32(a)(7)(B)(iii). This count is based on the word-count
feature of Microsoft Word.

DATED: November 2, 2011

/s/ Joseph C. Gratz
Joseph C. Gratz
DURIE TANGRI LLP
Attorneys for Amicus Curiae
Google Inc.

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CERTIFICATE OF SERVICE
I hereby certify 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 CM/ECF system on November 2, 2011.
Participants in the case who are registered CM/ECF users will be
served by the appellate CM/ECF system.
I further certify that, for any participants in the case who are not
registered CM/ECF 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: November 2, 2011

/s/ Joseph C. Gratz
Joseph C. Gratz
DURIE TANGRI LLP
Attorneys for Amicus Curiae
Google Inc.

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