Righthaven LLC v. Center For Intercultural Organ, et al

Filing 22

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Google Inc.. Date of service: 01/13/2012. [8031992] (APB)

Appeal No. 11-16358
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RIGHTHAVEN LLC,
Appellant,
v.
CENTER FOR INTERCULTURAL ORGANIZING, and KAYSE JAMA,
Appellees.
Appeal from the United States District Court for the District of Nevada
Case No. 2:10-cv-01322-JCM-LRL
The Honorable Judge James C. Mahan
MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
GOOGLE INC. IN SUPPORT OF APPELLEES CENTER FOR
INTERCULTURAL ORGANIZING AND KAYSE JAMA
Of Counsel:
Fred von Lohmann
Oliver Metzger
GOOGLE INC.
1600 Amphitheatre Parkway
Mountain View, CA 94043
650.253.0000

Andrew P. Bridges (CSB No. 122761)
Laurence F. Pulgram (CSB No. 115163)
Jennifer L. Kelly (CSB No. 193416)
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
415.875.2300
Attorneys for Amicus Curiae Google Inc.

Pursuant to Federal Rule of Appellate Procedure 29(b), Google Inc.
(“Google”) respectfully requests leave to file its concurrently submitted Amicus
Curiae brief in the above-entitled case in support of Defendants-Appellees Center
for Intercultural Organizing and Kayse Jama.
Google believes that its amicus brief will assist the Court in its analysis of
the fair use-related issues presented by this appeal. While Google takes no
position on the ultimate merits of this case, it has a vital interest in the careful and
considered application of the fair use doctrine. As a diversified technology
company, operating one of the world’s largest and most popular internet search
engines, Google’s operations depend heavily upon the protections provided by the
fair use doctrine. Its mission – to organize the world’s information and make it
universally accessible and useful – is likewise dependent. Google is, accordingly,
intimately familiar with the historical application of the doctrine by the Court, as
well as the impact that the doctrine has upon the information technology industry,
and thus, is well situated to offer some considerations pertaining to the important
fair use issue presented in this appeal.
In its concurrently filed amicus brief, Google supports Defendants-Appellees
in their arguments against Righthaven’s misguided construction of the fair use
doctrine. Consistent with well-settled precedent, the proper application of the fair
use doctrine requires a flexible, case-by-case approach in which courts weigh and

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balance numerous factors, and, contrary to Righthaven’s assertions, no single
statutory factor is outcome-determinative, nor ever has been.
Google urges the Court, in its brief, to reject Righthaven’s false assertion
that there is “almost a per se pronouncement” in the Ninth Circuit precluding the
application of the fair use doctrine when an entire work has been copied. That
simply is not the law, nor should it be. Indeed, as Google is well situated to
explain, adoption of any such per se rule would wreak havoc upon companies
within the information technology sector, whose ability to offer innovative and
useful services to the public depends on the adaptability of the fair use doctrine.
Counsel for Defendants-Appellees Center for Intercultural Organizing and
Kayse Jama have consented to the filing of this brief. Counsel for PlaintiffAppellant Righthaven LLC has provided neither objection nor permission in
response to Google’s request for consent to file, thereby necessitating this motion
for leave.
Dated: January 13, 2012

Respectfully submitted,

Of Counsel:

/s/ Andrew P. Bridges
Andrew P. Bridges

Fred von Lohmann
Oliver Metzger
GOOGLE INC.
1600 Amphitheatre Parkway
Mountain View, CA 94043
650.253.0000

FENWICK & WEST LLP
Attorneys for Amicus Curiae Google Inc.

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