The Authors Guild v. Google, Inc.

Filing 43

MOTION, to extend time to file amicus curiae brief, on behalf of Movant Electronic Arts, Inc., Pinterest, Inc. and Yahoo! Inc., FILED. Service date11/14/2012 by CM/ECF.[768703] [12-3200]--[Edited 11/16/2012 by KG] [Entered: 11/15/2012 02:23 AM]

ANDREW P. BRIDGES
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: 415.281.1350
Attorneys for Prospective Amici Curiae
ELECTRONIC ARTS INC., PINTEREST,
INC., and YAHOO! INC.

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.

No. 12-3200
DECLARATION OF ANDREW
P. BRIDGES IN SUPPORT OF
MOTION BY PROPOSED
AMICI CURIAE COPYRIGHT
HOLDERS AND ONLINE
PLATFORMS FOR
EXTENSION OF TIME TO
SEEK LEAVE AND FILE
AMICUS CURIAE BRIEF

I, ANDREW P. BRIDGES, hereby declare as follows pursuant to 28 U.S.C.
§ 1746:
1.

I am a member of the bar of this Court and a partner at the law firm of

Fenwick & West LLP. Electronic Arts Inc., Pinterest, Inc., and Yahoo! Inc.
(collectively “Amici Curiae”), wish to seek leave to file (if necessary), and to file,
a brief of amici curiae in support of Defendant-Appellant Google’s appeal of the
district court’s May 31, 2012 order certifying a class action. Counsel for Appellant
Google Inc. has consented to the Amici Curiae’ s filing of an amicus brief, while
counsel for Plaintiff-Appellees have represented that although they do not oppose
the filing of an amicus brief by the Amici Curiae, they do not consent to a short
extension of time for the prospective Amici Curiae to file their brief. I respectfully
submit this Declaration in support of the motion of these prospective Amici Curiae
for a two-week extension of time to file a brief in support of Google.1
2.

Amici Curiae are leading creators of interactive online services and

interactive media. They own important intellectual property; they depend upon
intellectual property laws; and they thrive in a strong but fair intellectual property
enforcement environment. All of them enforce their own intellectual property
rights and may from time to time defend against intellectual property and related

1

A few other companies have expressed possible interest in joining these
prospective Amici Curiae, and these movants ask the Court to allow a small
number of others to join the proposed brief if they desire to.
1

claims. They are therefore are interested in the development of clear, consistent,
and fair principles of law involving intellectual property and related claims,
especially in this case with respect to class actions. Amici Curiae have substantial
experience with intellectual property legal issues.
3.

Amici Curiae seek to offer the Court valuable insight in a broader

context than the narrow issues before the Court with respect to a presumed class of
authors and the Google Books project. Amici Curiae believe they can place the
issues of this case in the broader context of intellectual property and related
disputes, particularly with regard to innovative creators of interactive content and
services. Amici Curiae respectfully believe that they offer a perspective that may
assist the Court in its analysis.
4.

Under the briefing schedule set by the Court and Federal Rule of

Appellate Procedure 29(e), Amici Curiae must move for leave to file an amicus
brief and file the proposed brief by November 16, 2012.
5.

Only after Google filed its opening brief on November 9, 2012 – a

brief that the Amici Curiae believe admirably stated Google’s case – did these
Amici Curiae coalesce around a decision to furnish their own perspectives,
although they first contemplated the possibility of an amicus brief in late October
2012. After reviewing the Google brief, Amici Curiae concluded that they may
assist the Court by highlighting their broader concerns with class treatment of
2

intellectual property and related disputes, some of which involve extraordinary
amounts in controversy and risks for innovators and creators of new interactive
works and online platforms. While the plaintiffs in Google’s case seek statutory
damages of only $750 per work (a figure that could yield damages of well over a
billion dollars if plaintiffs prevail), in other class actions plaintiffs may seek up to
$150,000 per work, and if the plaintiff class were to seek $150,000 per work in the
Google case – assuming that only 2 million books are at issue out of the 20 million
books Google has digitized – the amount at issue would be $300 billion. Even
non-class cases against some defendants have involved damages that may reach
billions or trillions of dollars. See, e.g., Arista Records v. Lime Group LLC, 784 F.
Supp. 2d 313, 317 (S.D.N.Y. 2011). Class actions aggregating a large number of
claims may involve statutory damages risks that defy reason. Moreover, class
actions seeking injunctions against online services or interactive media that
challenge fundamental premises of how they operate – as this case challenges the
entire Google Books project – can threaten a wide range of innovative companies
with extinction. For these important reasons, Amici Curiae wish to provide
important additional information and insight to the Court.
6.

Amici Curiae require more time to prepare a brief that will be helpful

in aiding the Court’s understanding of the unique pressures on, and distortions of,
intellectual property and related litigation that class actions cause.
3

7.

The prospective Amici Curiae retained my firm only very recently to

represent them in this matter, and articulating the views of several different
companies on these issues will require extra time for coordination. As a
consequence, these Amici Curiae seek an additional two weeks, until November
30, 2012, to file their motion for leave (if necessary) and their proposed brief.
8.

Assuming the Court grants this Motion to extend deadlines, Amici

Curiae will formally seek leave to file their amicus brief (if necessary) on or before
November 30, 2012, and will include a copy of their proposed amicus brief to their
motion for leave.
I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct. Executed this 14th day of November 2012.

By: /s/ Andrew P. Bridges
Andrew P. Bridges
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: 415.281.1350
Attorneys for Prospective Amici Curiae
ELECTRONIC ARTS INC., PINTEREST,
INC., and YAHOO! INC.

4