The Authors Guild v. Google, Inc.

Filing 138

MOTION, to file amended sealed amicus curiae brief, to file supplemental appendix, on behalf of Amicus Curiae Morton Beebe, Leland Bobbe, John Francis Ficara, Graphic Artists Guild, Ed Kashi, David W. Moser, North American Nature Photography Association, Picture Archive Council of America, Inc., Professional Photographers of America, Al Satterwhite, John Schmelzer, Leif Skoogfors, Simms Taback and The American Society of Media Photographers, Inc., FILED. Service date 02/27/2013 by CM/ECF. [859475] [12-3200]--[Edited 02/28/2013 by KG] [Entered: 02/27/2013 07:39 PM]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: [phone]
MOTION INFORMATION STATEMENT
Caotion [use short title)

Docket Number(s): 12-3200
Motion for: leave to file sealed Amicus Brief & Appendix

The Authors Guild, et al. v. Google, Inc.

Set forth below precise, complete statement of relief sought:
Movants (Amici Curiae} respectfully seek leave to
file an amended sealed amicus brief and
supplemental appendix

MOVINGPARTY:A.S.M.P., et al.
OPPOSINGPARTY:...;..N~/A~-----------0Plaintiff
Ooefendant
x --Non-parties (Amici Curiae)
ITppellant/Petitioner
OAppellee/Respondent
MOVING ATTORNEY: Mark A. t::Serube
OPPOSING ATTORNEY:
_[name of attorney, with finn, address, phone number and e-mail]
Mishcon de Reya New York LLP
~7~5o~s=ev~e=n~th~Arv~e~~F~Io~o~r~2~6~.N~Y~.~N~Y~10~0~1=9----------------------------------------------.•

-----------------

(21~~12-~2~

mar.eru

e

mishcon.com

Court-Judge/Agency appealed f r o m : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Please check appropriate boxes:
Has mov~otifjl;d.,opposing counsel (required by Local Rule 27.1 ):
li.JYesUNo (explain): _ _ _ _ _ _ _ _ _ _ __

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
Oves 0No
Has this relief been previously sought in this Court?
Oves 0No
Requested return date and explanation of emergency: _ _ _ _ _ __

Opposin~unsel's

position on motion:
Appellees
uunopposed (Zppposed O>on't Know consent;
Does opposing counsel intend to file a response:
Appellants
[llves0No Doon't Know
oppose.
Is oral argument on motion requested?

[lives 0No (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set?

Oves ll]No Ifyes,enterdate:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Signature of Moving Attorney:

-~----'~~
~ ~ -----Date: 2/27/2013

Service by: DCMIECF

Oother [Attach proof of service]

ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, Clerk of Court
Date:---------------------

Form T-1080 (rev. 7-12)

By: - - - - - - - - - - - - - - - - - - - -

Case No. 12-3200
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THE AUTHORS GUILD, INC., Associational Plaintiff,
BETIY MILES, JOSEPH GOULDEN and JIM BOUTON,
individually and on behalf of all others similarly situated,
Plaintiffs-Appellees,

v.
GOOGLE, INC.,

Defendant-Appellant.
On Appeal from an Order Granting Certification of a Class Action, Dated May 31,
2012, by the United States District Court for the Southern District of New York,
No. 1 :05-cv-08136 Before the Honorable Denny Chin

MOTIONOFAMICICURME
THE AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC., GRAPIDC
ARTISTS GUILD, PICTURE ARCHIVE COUNCIL OF AMERICA, INC., NORTH
AMERICAN NATURE PHOTOGRAPHY ASSOCIATION, PROFESSIONAL
PHOTOGRAPHERS OF AMERICA, LEIF SKOOGFORS, AL SATTERWIDTE,
MORTON BEEBE, ED KASID, JOHN SCHMELZER, SIMMS TABACK, LELAND
BOBBE, JOHN FRANCIS FICARA AND DAVID W. MOSER FOR LEAVE TO FILE AN
AMENDED SEALED AMICUS BRIEF AND SUPPLEMENTAL APPENDIX
[REDACTED VERSION]
MISHCON DE REYA NEW YORK LLP
James J. McGuire
Mark A. Berube
750 Seventh Avenue, 26th Floor
New York, New York 10019
Telephone: [phone]
Facsimile: 212-612-3297
Attorneys for Amici Curiae The American
Society of Media Photographers, Inc.,
Graphic Artists Guild, Picture Archive
Council ofAmerica, Inc., North American
Nature Photography Association,
Professional Photographers ofAmerica,
Leif Skoogfors, AI Satterwhite, Morton
Beebe, Ed Kashi, John Schmelzer, Simms
Taback, Leland Bobbe, John Francis Ficara
and David W. Moser

Legall US.96363.1

Amici curiae The American Society of Media Photographers, Inc., Graphic
Artists Guild, Picture Archive Council of America, Inc., North American Nature
Photography Association, Professional Photographers of America, Leif Skoogfors,
AI Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback, Leland
Bobbe, John Francis Ficara and David W. Moser (collectively, ''Amici Curiae"),
appearing through the undersigned counsel, respectfully submit this Motion for
leave to file an amended Amicus Brief under seal ("Sealed Brief') and to submit a
supplemental appendix ("Supplemental Appendix") in support thereof consisting
of three documents that were produced in a companion copyright infringement
lawsuit to the one at issue on this Appeal against Defendant-Appellant Google, Inc.
("Google"), currently pending before the Honorable Denny Chin. See The Am.

Soc y of Media Photographers, et al. v. Google, Inc., No. 10 CV 02977 (DC)
(S.D.N.Y.) ("ASMP Action"). For all of the reasons set forth herein, in the
Declaration of Mark A. Berube, Esq., dated February 27, 2013 ("Berube
Declaration") and the exhibits annexed thereto submitted in support of the Motion,
and in the remainder of the record of this matter, Amici Curiae respectfully request
that the United States Court of Appeals for the Second Circuit ("Second Circuit")
grant the Motion in its entirety.

Legall US.96363.1

1

FACTUAL BACKGROUND
Amici Curiae are plaintiffs in the ASMP Action, a companion copyright
infringement lawsuit to the Authors Guild v. Google Inc., Civil Action No. 05 CV
8136 (DC) ("AG Action"), the lawsuit at issue in the instant Appeal. Berube Decl.
at ' 2. In the AG Action, Plaintiffs-Appellees are class representatives who own
copyrights in books (as do the class members) that were copied, distributed, and/or
displayed by Google in connection with the Google Book Search Program
("GBS") and who seek damages for Google's en masse copyright infringement.

See A119-121, 125, 128-133. In the ASMP Action, Amici Curiae similarly seek
damages for violations of 17 U.S.C. § 501 on behalf of a putative class consisting
of all persons and entities that own the copyrights and/or the relevant exclusive
rights in original visual works published in the books and/or periodicals that were
scanned and/or displayed by Google in connection with GBS. 1 ASMP Action
Docket No. 29 at 2-4, 17-24.
The Amici Curiae sought and obtained consent from all parties to file an

Amicus Brief("Brief') in support of Plaintiffs-Appellees' request that the Second
Circuit affirm the District Court's Order granting Plaintiffs' Motion for Class
Certification, dated May 31, 2012. Berube Decl. at' 3. The Amici Curiae sought
consent from all parties to file this subsequent Sealed Brief and Supplemental
1

The parties' in the ASMP Action are currently actively engaged in discovery, which is
scheduled to close on July 15, 2013. See ASMP Action Docket No. 82.
Legai1US.96363.1

2

Appendix. Id.

at~

4. Plaintiffs-Appellees consent to the filing and Google

opposes. Id.
In support of the Sealed Brief, the Amici Curiae move for leave to submit
three (3) documents that were produced by Google to Amici Curiae in the related
ASMP Action and designated as "Confidential" or "Highly Confidential" pursuant
to the Protective Order (Docket No. 68) in that case. Berube Decl.

at~

5.

Specifically,
ld. Ex. Bat SAl-22, 23-24, 25-28. As set forth
herein, these documents are relevant to the AG Appeal because

As part of its production in the ASMP Action, Google produced the entirety
of its production in the AG Action ("AG Production") to Amici Curiae (the ASMP
plaintiffs). ld.

at~

6. The Amici Curiae have reviewed the AG Production and

have confirmed that these three documents were not produced in the AG Action.
/d. These three documents were all subject to requests for production in the AG

Action for which Google agreed to produce documents. For example, Google
agreed to produce:

Legal1US.96363.1

3

Berube Decl. Ex. C at 9

Because of the Protective Order, the Amici Curiae submitted a letter request
to Judge Chin for permission to submit these documents to the Second Circuit
under seal in connection with this Motion. Berube Decl.

at~

10. On February 14,

2013, the Amici Curiae filed a motion for extension of time to file the Sealed Brief
from February 15,2013 to February 22,2013, in order to allow Judge Chin time to
consider Amici Curiae's request. See Docket No. 88. On February 15, 2013, the
original deadline for the Brief, Judge Chin granted the Amici Curiae 's request in
the ASMP Action and a copy of Judge Chin's Order was submitted to the Second
Circuit on February 20, 2013. See Docket No. 116-2. Since the Second Circuit did
not rule on the Amici Curiae's motion for extension of time to file before the Brief
was due, the Amici Curiae filed the Brief on February 15, 2013. See Docket No.
107.
Legan US.96363.1

4

On February 22, 2013, the Second Circuit granted the Amici Curiae's
request for a one-week extension of time. See Docket No. 126. Since the Amici

Curiae could not have the Sealed Brief printed in time by a vendor to meet the
February 22, 2013 extended deadline they requested and obtained a three (3)
business-day extension, until February 27, 2013, to file the Sealed Brief and this
Motion. Berube Decl. at ~ 13; Docket No. 136.

ARGUMENT
Pursuant to Rule 10(a) of the Federal Rules of Appellate Procedure, the
record on appeal includes "( 1) the original papers and exhibits filed in the district
court; (2) the transcript of proceedings, if any; and (3) a certified copy of the
docket entries prepared by the district clerk." FED. R. APP. P. 10(a). In addition,
the appendix to the briefs may contain "other parts of the record to which the
parties wish to direct the court's attention." FED. R. APP. P. 30(a)(1)(D).
On this Appeal, the documents in the Supplemental Appendix were not part
of the original exhibits filed in the District Court or even a part of the record below
for a simple reason -- they were not produced by Google in the AG Action to
Plaintiffs-Appellees (despite the fact that they were called for by discovery in that
action) and were only recently produced by Google in the companion ASMP
Action. Berube Decl.

at~~

5-6. Moreover, given the Protective Order in the

ASMP Action, the Amici Curiae could not provide these documents to Plaintiffs-

Legall us. 96363.1

5

Appellees. /d.

at~

9. Consequently, the Plaintiffs-Appellees could not have

submitted this evidence to the District Court in support of their motion for class
certification or to the Second Circuit in connection with this Appeal. Absent the
grant of this Motion, there is no other way these documents could be considered on
Appeal.

A.

Circumstances Are Present On Appeal To Entitle
The Amici Curiae To Introduce Additional Evidence.
Amici Curiae acknowledge that the relief they seek is unusual and generally

only granted in "exceptional circumstances." See Wiggins Bros., Inc. v. Dep't of

Energy, 667 F.2d 77, 83 (Temp. Emer. Ct. App. 1981) (explaining that amici
curiae only permitted to introduce additional evidence where exceptional
circumstances present). Although there does not appear to be any clear standard on
what constitutes "exceptional circumstances" or when such circumstances are
found, Circuit Courts-- including this one-- do permit amici curiae to submit
supplemental appendices in support of their amicus briefs. See, e.g., Brief for
Respondent-Appellee, Levine v. Menifee, No. 05-2590-pr(L), 2005 WL 6143902,
*19-*20 (2d Cir. July 12, 2005) (noting amici submitted documents in special
appendix); Amicus Brief in Support of Plaintiff/Appellant for Reversal of the
Lower Court Decision, Kielczynski v. U.S. Cent. Intelligence Agency, No. 01-6103,
2002 WL 32304158, *3 n.4 (2d Cir. Mar. 29, 2002) (noting amicus submitted
supplemental appendix); United States v. Microsoft Corp., No. 95-5037 (D.C. Cir.

Legall US.96363.1

6

1995) (permitting amici to submit joint supplemental appendix and revised joint
supplemental appendix); United States v. Hinds Cnty. Sch. Bd., 560 F.2d 619, 621
n.4 (5th Cir. 1977) (noting that panel granted amicus curiae permission to
supplement record with new evidence); see alsoP. Stolz Family P 'ship L.P. v.

Daum, 355 F.3d 92, 105-106 (2d Cir. 2004) (noting amicus SEC provided
"additional evidence" concerning material issue in case); Revised Brief of Amici

Curiae National Wildlife Federation, Utah v. Norton, No. 03-4147, 2004 WL
3551718, *3-4 (lOth Cir. June 14, 2004) (amici's supplemented record with
additional exhibits providing general background and evidence of amici's interest
in case).
Here, Amici Curiae respectfully submit that exceptional circumstances
warranting leave to submit the Supplemental Appendix exist. Specifically Amici

Curiae (i) are plaintiffs in a related case to the one on Appeal in which Google is
also defendant, and (ii) seek to support their Sealed Brief with documents which
Google produced to them in the ASMP Action but not to Plaintiffs-Appellees in
the AG Action despite their responsiveness to Plaintiffs-Appellees' document
requests. These documents are highly relevant because

However,
since Google failed to produce these documents to the Plaintiffs-Appellees in the

Legall US. 96363.1

7

AG Action in response to their document requests, they could not have been
submitted to the District Court or the Second Circuit.
In these premises, leave to introduce the Supplemental Appendix should be
granted.

1.

The Documents Are Highly Relevant
To Central Issues In The Appeal.
(a)

The Supplemental Appendix is Central
to the Fair Use Analysis as a Whole.

As Google correctly contends, "[t]he central disputed issue in this case is
whether Google Books' uses constitute fair use." Brief for Appellant, dated
November 9, 2012, Docket No. 37 ("Appellant's Brief') at 26 (citations and
internal quotations omitted). Accordingly, evidence relevant to the fair use issue is
central to the AG Action and this Appeal.
In support of its claim that fair use cannot be determined on a class-wide
basis, Google analyzes "the market benefit of the challenged use" arguing that
"[t]here are many different ways Google Books may provide market benefits to an
author that cannot be dismissed on a classwide basis." /d. at 30. In support of its
contention, Google relies upon a survey submitted to the District Court below in
opposition to the Plaintiffs-Appellees' motion for class certification. See, e.g.,
Appellant's Brief at 20. Putting aside whether the survey accurately evidences the
views of author class members vis-a-vis GBS and Google's systematic copyright

LegallUS.96363.1

8

infringement in connection therewith -- a survey which the District Court rejected
as flawed and which Plaintiffs-Appellees and the Amici Curiae vociferously
dispute2 -- unbeknownst to the Plaintiffs-Appellees and consequently the District
Court in the AG Action, Google's own internal documents

See Berube Decl.
Ex. Bat SAll, 13, 26-28.

Given their materiality to a central issue and Plaintiffs-Appellees' inability
to include them in the Record, the Second Circuit should allow the Supplemental
Appendix to be considered on this Appeal.
(b)

On Appeal, the first issue raised by Google is whether the class plaintiffs can
"adequately represent the many class members who benefit from Google Books
and do not want to see it dismantled." Appellant's Brief at 17. Google states
"[t]he class representatives object to the project and seek to enjoin Google's
searchable index and its display of snippets." /d. Google claims that "[i]t stands to
reason that an author benefits when a book can be found through an Internet search
engine and when book excerpts are available for browsing online - benefits that
2

See, e.g., SPA30-32; Appellees' Brief at 21-33.

Legan US.96363.1

9

Google Books provides." /d. at 21. Google argues that there is "a clash of
interests preclud[ing] certifying a class here" and that dismantling the Library
Project "would deprive many authors of the benefits they obtain from Google
Books ... " /d. at 20. Google further claims that "Google Books' comprehensive
index and search tool offers real benefits to a significant portion of the class, and if
Plaintiffs prevail, those benefits will disappear or be greatly diminished because
the project cannot continue in its present form." !d. at 23.
Similarly, the brief for Amici Curiae the American Library Association, the
Association of College and Research Libraries, and the Association of Research
Libraries, dated November 16, 2012, Docket No. 55 ("Library Brief') claims that:
there is real concern that infringement liability . . . will give rise to a
massive damage award that will harm the public interest. Such an
award could force the shutdown of parts or all of GBS, significantly
limit the works available in the database and thereby reduce its
usefulness, or restrict access to members of the public including
researchers, scholars, and libraries who depend on GBS. None of
these outcomes would benefit the public.
Library Brief at 8-9.
However,

See Berube Decl. Ex. B at SA13

l.egall US.96363.1

10

; /d. at SA26-27

/d. at SA28

- ) ; / d . at SAll

In these unusual circumstances, this critical, newly discovered evidence,
otherwise unavailable to Plaintiffs-Appellees, should be considered on this Appeal.

L.egall US.96363.1

11

CONCLUSION
For all of the reasons set forth herein and in the remainder of the record,
Amici Curiae respectfully request that the Court grant the Motion and permit Amici
Curiae to file the Sealed Brief and the Supplemental Appendix in support thereof.

Dated: New York, New York
February 27, 2013
Respectfully submitted,
By: Is/Mark A. Berube
JAMES J. MCGUIRE
MARK A. BERUBE
MISHCON DE REYA NEW YORK LLP

750 Seventh Avenue, Floor 26
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amici Curiae The American
Society of Media Photographers, Inc.,
Graphic Artists Guild, Picture Archive
Council ofAmerica, Inc., North American
Nature Photography Association,
Professional Photographers ofAmerica,
Leif Skoogfors, AI Satterwhite, Morton
Beebe, Ed Kashi, John Schmelzer, Simms
Taback, Leland Bobbe, John Francis Ficara
and David W. Moser

LegaJJUS.96363.1

12

CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of February, 2013, I caused the
redacted version of the foregoing Motion for Leave to File an Amended Sealed
Amicus Brief and Supplemental Appendix, redacted version of the Declaration of
Mark A. Berube, Esq., dated February 27, 2013, and the redacted exhibits annexed
thereto, to be filed electronically using the CM!ECF system, which will send
notification of such filing to counsel of record.
I hereby further certify that on this 27th day of February, 2013, I caused the
sealed version of the foregoing Motion for Leave to File an Amended Sealed
Amicus Brief and Supplemental Appendix, sealed version of the Declaration of
Mark A. Berube, Esq., dated February 27, 2013, and the sealed exhibits annexed
thereto, to be filed by hand with the Court and upon counsel for DefendantAppellant Google, Inc. Counsel for Plaintiffs-Appellees were notified that they
would not be served with sealed versions of these documents because doing so
would violate the Protective Order (Docket No. 68) in the companion lawsuit, The

Am. Soc yof Media Photographers, eta/. v. Goog/e, Inc., No. 10 CV 02977 (DC)
(S.D.N.Y.), governing the sealed documents.

!s!MarkA. Berube
Mark A. Berube

Legal I US.96363.1