The Authors Guild v. Google, Inc.

Filing 96

REPLY TO OPPOSITION, on behalf of Movants 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, FILED. Service date02/15/2013 by CM/ECF.[847875] [12-3200]--[Edited 02/19/2013 by KG] [Entered: 02/15/2013 01:41 PM]

No. 12-3200
IN THE UNITED STATES 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, 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 DECLARATION IN FURTHER SUPPORT OF EMERGENCY
MOTION FOR EXTENSION OF TIME TO FILE AMICUS BRIEF
Mark A. Berube hereby declares as follows:
1.

I am a partner in the law firm of Mishcon de Reya NY LLP. I submit

this Reply Declaration in further support of the emergency motion of Amici Curiae
American Society of Media Photographers, Inc., Graphic Artists Guild, Inc.,
Picture Archive Counsel 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
Bobb, John Francis Ficara and David W. Moser (“Amici Curiae”) for a seven (7)

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day extension of time, until February 22, 2013, to file their Amicus Brief (“Brief”)
in the above-captioned matter.
2.

Appellant-Defendant Google Inc. (“Google”) argues that the

submission of the three (3) documents identified by the Amici Curiae would be
improper because “[s]uch documents are not part of the record in this appeal, nor
has any party to this case sought to add them to the record.” Opposition to ASMP
Motion for Extension of Time to File Amicus Brief (“Oppn.”) at ¶1.
3.

To be clear, these documents could not have been part of the record

below because they were not produced by Google to the Plaintiffs-Appellees in the
related case. Accordingly, Google is theoretically the only party who could have
sought leave to admit them on Appeal, which it obviously would not seek to do.
4.

In the event the Honorable Denny Chin grants the Amici Curiae’s

request to submit these three documents under the existing Protective Order, they
will move this Court for leave to submit this newly discovered evidence in support
of their Brief and for leave to file a Brief that includes reference to these
documents. Simply put, the Amici Curiae are simply seeking an extension of time
to allow Judge Chin to issue his ruling.
5.

Google’s suggestion that the Amici Curiae’s request should not be

granted because the Court did not grant the motion for extension of Electronic
Arts, Inc., Pinterest, Inc., and Yahoo! Inc. (“Appellant’s Amici”) to file their

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amicus brief is not germane to the present Motion. Oppn. at ¶3. The Appellant’s
Amici sought leave for an extension of time, without ever seeking prior consent,
the day before their amicus brief was due, on the wholly different ground that it
was “[o]nly after Google filed its opening brief on November 9, 2012 . . . 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.” See Docket No. 43-2 at ¶5.
6.

Here, the Amici Curiae advised the parties of their intention to file the

Brief and sought their consent months prior to today’s filing deadline. As Google
itself notes, see Oppn. at ¶3, the “sole reason” for seeking an extension now is so
that the newly discovered evidence may be considered.
7.

Assuming Google obtains the extension it seeks, it will still have two

(2) weeks to respond to the other amicus brief in support of Plaintiffs-Appellees
and will still have one (1) week to respond to the Brief. Therefore, in the event the

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Amici Curiae’s present Motion is granted, Google will suffer no prejudice.
I declare that the foregoing is true and correct, in accordance with 28 U.S.C.
§ 1746.
Dated: February 15, 2013

Respectfully submitted,
/s/Mark A. Berube
a
Mark A. Berube
MISHCON DE REYA NEW YORK LLP
750 7th Avenue, Floor 26
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
[e-mail]
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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