The Authors Guild v. Google, Inc.

Filing 90

OPPOSITION TO MOTION to extend time [88], on behalf of Appellant Google, Inc., FILED. Service date 02/15/2013 by CM/ECF. [847301][90] [12-3200]--[Edited 02/15/2013 by KG] [Entered: 02/15/2013 10:31 AM]

No. 12-3200
IN THE UNITED STATE COURT OF APPEALS
FOR THE SECOND CIRCUIT
___________________
THE AUTHORS GUILD, INC., et al.,
Plaintiffs-Appellees,
v.
GOOGLE, INC.,
Defendant-Appellant.
___________________
On Appeal from an Order Granting Certification of a Class Action, Entered on
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
___________________
OPPOSITION TO ASMP MOTION FOR EXTENSION
OF TIME TO FILE AMICUS BRIEF
1.

The sole reason for ASMP’s requested extension is to file documents

with this Court that Amici Curiae ASMP, et al. (“ASMP”) obtained in a different
case and that were not “submitted below or on this Appeal by PlaintiffsAppellees.” Berube Decl. ¶ 13. Such documents are not part of the record in this
appeal, nor has any party to this case sought to add them to the record. Their
submission by ASMP would therefore be improper. See Fed. R. App. Proc. 10(a)
(“[T]he record on appeal” includes “the original papers and exhibits filed in the
district court[.]”); Wiggins Bros., Inc. v. Dep't of Energy, 667 F.2d 77, 83 (Temp.

Emer. Ct. App. 1981) (“in the absence of exceptional circumstances, amicus curiae
is not entitled to introduce additional evidence (particularly evidence offered in
another action after entry of the judgment which is the subject of this appeal)”).
Because ASMP identifies no other reason why an extension is necessary, its
motion should be denied.
2.

Although Appellant-Defendant Google Inc. (“Google”) has consented

to ASMP filing an amicus curiae brief in this appeal, Google has informed counsel
for ASMP that its consent does not extend to a brief that seeks to add, include, or
reference evidentiary materials beyond the materials that were before Judge Chin
when he decided the motion for class certification. Although Google does not
oppose ASMP filing a timely and procedurally proper amicus brief, see Berube
Decl. ¶ 6, it does object to the instant motion and to ASMP’s efforts to depart from
the record below and the issues raised by the parties to this case.
3.

Prior to the deadline for filing an amicus curiae brief in support of

Google, Electronic Arts, Inc., Pinterest, Inc., and Yahoo! Inc. sought an extension
of time to file such a brief. See Docket No. 43. Appellees-Plaintiffs opposed, and
this Court denied, that motion. See Docket No. 78. There is no basis for providing
an extension of time to Appellees-Plaintiffs’ amici when a similar extension was
denied Appellant-Defendant’s amici.

4.

Google has sought (but not yet obtained) a one-week extension of

time to file a reply brief so that it will have two weeks, rather than only one week,
to respond to arguments raised by Appellees-Plaintiffs’ amici. See Docket No. 84.
As of this filing, Google is aware of three sets of amici who plan to file such briefs.
Granting ASMP’s requested extension would unduly burden Google in responding
to multiple briefs over a short period of time. It would also unnecessarily
complicate further proceedings in this appeal.

Dated: February 15, 2013

Respectfully submitted,
/S/
Seth P. Waxman
Wilmer Cutler Pickering
Hale and Dorr LLP
1875 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
[phone]
[e-mail]

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 Ninth Circuit by using the
appellate CM/ECF system on February 15, 2013. All participants in the case are
registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Seth P. Waxman
SETH P. WAXMAN