The Authors Guild v. Google, Inc.

Filing 150

REPLY TO OPPOSITION [146], 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 03/18/2013 by CM/ECF.[879856][150] [12-3200] [Entered: 03/18/2013 06:08 PM]

Case No. 12-3200
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THE AUTHORS GUILD, INC., Associational Plaintiff,
BETTY 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
REPLY MEMORANDUM IN SUPPORT OF MOTION OF 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, AL SATTERWHITE,
MORTON BEEBE, ED KASHI, 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 of America, Inc., North American
Nature Photography Association,
Professional Photographers of America,
Leif Skoogfors, Al Satterwhite, Morton
Beebe, Ed Kashi, John Schmelzer, Simms
Taback, Leland Bobbe, John Francis Ficara
and David W. Moser

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Amici Curiae] appearing through the undersigned counsel, respectfully
submit this Reply Memorandum in further support of their Motion for leave to file
an amended Amicus Briefunder seal and to submit a Supplemental Appendix in
support thereof consisting of three documents that were produced in the ASMP
Action against Google. For all of the reasons set forth herein, in the Motion, in the
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 Court grant the Motion in its entirety.

ARGUMENT
I

COURTS OF APPEAL PERMIT AMICI TO
SUPPLEMENT THE RECORD ON APPEAL
WHERE EXCEPTIONAL CIRCUMSTANCES EXIST.
The Court should grant Amici Curiae's requested relief because of the
exceptional circumstances presented by the Motion, namely that the additional
documents in the Supplemental Appendix are both highly relevant and could not
have been originally included in the record because they were withheld from
Plaintiffs-Appellees below despite being called for in discovery.
In opposition, Google claims that "[0 ]rdinarily, this Court will allow parties
to supplement the record only with 'material' documents that were 'omitted from
J Terms not defined herein shall have the meaning ascribed to them in the Motion for Leave to
File an Amended sealed Amicus Brief and Supplemental Appendix ("Motion") and the
Declaration of Mark A. Berube, Esq., dated February 27, 2013.

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or misstated in the (district court) record by error or accident' .... " Opp'n at 2.
Google then goes on to correctly state that "Amici do not contend that any error or
accident occurred here." Id. at 3. Google's insinuation that the Court will only
permit supplementation of the record on appeal where an error or accident has
occurred is incorrect. In fact -- and as recognized by Google's own authority -- the
Court may also permit supplementation in "extraordinary circumstances." See,
e.g., Weaver v. Indymac Fed. Bank, FSB, 488 F. App'x 522, 523 (2d Cir. Nov. 21,
2012) (noting absence of "extraordinary circumstances" as reason for refusing to
permit supplementation of record); Weisshaus v. Port Auth. of N.Y. & N.J., No. 114934,2012 WL 4123185, *3 (2d Cir. Sept. 20, 2012) (same).
Here, and as explained in the Motion, Amici Curiae contend that the
requisite "extraordinary circumstances" exist because the documents at issue are
highly relevant to central issues in this Appeal and because they could not have
been included in the record by Plaintiffs-Appellees since Google did not produce
them during discovery. See Motion at 5-11. The present circumstances make this
Motion different from all of the authorities cited by Google -- many of which deal
with situations in which the new evidence did not even exist at the time of the
District Court's decision and none of which deal with a situation where evidence
was improperly withheld during discovery thereby precluding its inclusion in the
record. See U.S. Polo Ass'n v. PRL USA Holdings, Inc., No. 12-1346-cv, 2013 WL

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490796, *5 (2d Cir. Feb. 11,2013) (denying motion to supplement record with
material not "even in existence" at time of district court's decision); Order, Gasser

v. Amboy Nat'l Bank, No. 11-3773 (2d Cir. Jan. 3,2013) (Docket No. 216), at 2
(appellant sought to include deposition transcript in record that occurred seventeen
months after hearing in district court); Weaver, 488 F. App'x at 523 (no
extraordinary circumstances presented); Weisshaus, 2012 WL 4123185, at *3
(same); U.S. v. Allen, No. 10-4798-cr, 472 F. App'x 35, 37 (2d Cir. Mar. 30,2012)
(denying motion to supplement record with new material created at trial that took
place after trial upon which appeal based "[b ]ecause the proposed new materials
could not have been part of the district court record").
Google's reliance upon DeBoe v. Du Bois, No. 12-53,2012 WL 5908447
(2d Cir. Nov. 27, 2012), is similarly misplaced. DeBoe concerned a motion to
strike where a party included material in its brief that was not in the record without
first requesting and obtaining leave to do so. 2012 WL 5908447, at *3 n.1. In
stark contrast, Amici Curiae timely filed the Brief and filed the present Motion to
obtain leave from the Court to file the Sealed Brief and Supplemental Appendix.
Moreover, each of the cases upon which Google relies concerns a situation
in which a party is attempting to supplement the record. Here, however, it is not a
party seeking to supplement the record, but Amici Curiae. In opposition, Google
entirely ignores all of the authority Amici Curiae presents showing that Circuit

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Courts can and 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. 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 panel granted
amicus curiae permission to supplement record with new evidence).
Where, as here, exceptional circumstances are present and the evidence
existed but was unavailable to Plaintiffs-Appellees for inclusion in the record, the
Motion should be granted in its entirety.
II

THE DOCUMENTS IN THE SUPPLEMENTAL APPENDIX
SHOULD HAVE BEEN PRODUCED IN DISCOVERY.
Google's explanation for its failure to produce the documents in the
Supplemental Appendix is unconvincing and should be rejected.
In response to Amici Curiae's assertion that Google should have produced
the documents in the Supplemental Appendix in the AG Action, see Berube Decl.

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Ex. C. at 9-10, and Ex. D. at 7, Google now claims that the parties limited the
scope of production in the AG Action. See Opp'n at 5; Declaration in Opposition
to Amici Motion to File Amended Amicus Brief and to Supplement the Appellate
Record, dated March 8, 2013 ("Gratz Dec!".) at" 2-3.
Specifically, Google states that "the parties agreed that Google would not be
required to Supplement its responses to earlier document requests ... ," Gratz
Decl. at, 3, thereby obviating Google's obligation to continue producing
documents responsive to Request Nos. 11, 12 and 14 of Plaintiffs' First Request
for the Production of Documents and Things ("First Set of RFP")? See Berube
Decl. Ex. C. Google further now claims that it only agreed to '''produce formal
corporate analyses responsive to [Request No.6 of Plaintiffs' Third Request for the
Production of Documents and Things upon the Plaintiffs-Appellees],' and that
none of Amici's documents meet that description." Opp'n at 5.
Even assuming that Google's portrayal of the parties' discovery agreement
to produce a far more limited set of documents than originally requested is
accurate,

At the time the Motion was filed, counsel to Amici Curiae had no knowledge of Google's and
Plainitffs-Appellees' purported agreement as described in the Gratz Declaration. Amici Curiae
find it surprising that such an agreement, alleviating Google of its obligation to supplement its
document production in response to the First Set ofRFP, was not memorialized in a
contemporaneous writing. Regardless, and as set forth below, two of the three documents in the
Supplemental Appendix are called for by document requests Google admits it is obligated to
produce documents in response to.
2

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See Berube Decl. Ex. B at SA 1-

22,25-28. Google's attempt to cast these documents as something other than what
they plainly are -- and thus evade its purportedly already narrowed discovery
obligations -- should not be countenanced.
III

THE DOCUJVIENTS IN THE SUPPLEMENTAL APPENDIX
ARE HIGHLY RELEVANT TO THIS APPEAL.
The foundation of Google's entire brief is premised upon the benefit Google
Books offers to authors and the public at large. See, e.g., Brief for Appellant
("Google's Brief') at 1 ("Google Books thus offers enormous benefits to authors
and readers and to the progress and diffusion of human knowledge."); 2 ("[t]he
transformative nature of Google Books and the fact that, as a general matter, it
makes books more accessible, more likely to be read and cited, and more likely to
be sold render the entire project fair use."); 9-11 ("Google Books Benefits
Authors"); 14 ("many absent class members benefit from the Google Books project
and want to see it continue, because it makes their books more widely known and
accessible"); id. ("a survey of authors showed that a majority of those interviewed
supported Google' s scanning of their books and the inclusion of their books in
snippet view ... "); 15; 17-18; 20-23; 25; 26-36.

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Google categorically argues that its fair use defense should be found to
defeat the claims of the class, without the need for any individual, work-by-work
analysis, because Google Books is so trans formative and beneficial to authors and
the public. Google's Br. at 28 ("the transformative nature of Google Books and the
significant public benefits of the project render the entire project fair use and defeat
the infringement claim of every member of the proposed class.").
Relying upon its survey, Google further argues that even if its categorical
assertion of fair use is rejected, its fair use defense should prevail under a factorfour analysis of market impact "which often carries the most weight" because
"[t]here are many different ways Google Books may provide market benefits to an
author that cannot be dismissed on a classwide basis." Google's Br. at 30.

Berube DecL Ex. A at 23-24. _

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Accordingly, these documents are plainly relevant to
central issues on this Appeal as addressed in Google's Brief, and the Court should
consider these relevant documents.

4

Google disingenuously argues that these documents are not relevant because "[a]t issue in this
appeal is how fair use will be adjudicated, not whether Google's fair use defense should be
upheld" and further that the "documents could not in any way relieve the district court of the
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Finally, as to Google's argument that these documents are not relevant because Amici Curiae
do not "cite to these documents in connection with the adequacy issue," Opp'n at 4, Google
its
to
relies upon the same "evidence" ofthe purported benefits of .
"""'-n",n its
and fair use.
4

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CONCLUSION
F or 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
March 18,2013
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 of America, Inc., North American
Nature Photography Association,
Professional Photographers of America,
Lelf Skoogfors, Al Satterwhite, Morton
Beebe, Ed Kashi, John Schmelzer, Simms
Taback, Leland Bobbe, John Francis Ficara
and David W Moser

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CERTIFICATE OF SERVICE
I hereby certify that on this 18th day of March, 2013, I caused the redacted
version of the foregoing Reply Memorandum in Support of Amici's Motion for
Leave to File an Amended Sealed Amicus Brief and Supplemental Appendix 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 18th day of March, 2013, I caused the
sealed version of the foregoing Reply Memorandum in Support of Amici's Motion
for Leave to File an Amended Sealed Amicus Brief and Supplemental Appendix to
be filed by hand with the Court and upon counsel for Defendant-Appellant 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 'y of
Media Photographers, et at. v. Google, Inc., No. 10 CV 02977 (DC) (S.D.N.Y.),
governing the sealed documents.
Is/Mark A. Berube
Mark A. Berube

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