Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al

Filing 475

RESPONSE to re 474 Notice (Other), Notice (Other) MOTION PICTURE STUDIO PARTIES' AND DVD CCA'S RESPONSE TO REAL'S OPPOSITION TO CHANGES TO PROPOSED PRELIMINARY INJUNCTION ORDER by Disney Enterprises, Inc.(a Delaware corporation), NBC Universal, Inc., Paramount Pictures Corp.(a Delaware corporation), Sony Pictures Entertainment Inc.(a Delaware corporation), Twentieth Century Fox Film Corporation(a Delaware corporation), Viacom, Inc., Warner Bros. Entertainment, Inc.. (Singla, Rohit) (Filed on 10/1/2009)

Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al

Doc. 475

Case3:08-cv-04548-MHP Document475

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GLENN D. POMERANTZ (SBN 112503) [e-mail] BART H. WILLIAMS (SBN 134009) [e-mail] KELLY M. KLAUS (SBN 161091) [e-mail] ROHIT K. SINGLA (SBN 213057) [e-mail] MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071-1560 Tel: [phone]; Fax: [phone] GREGORY P. GOECKNER (SBN 103693) [e-mail] DANIEL E. ROBBINS (SBN 156934) [e-mail] 15301 Ventura Boulevard, Building E Sherman Oaks, California 91403-3102 Tel: [phone]; Fax: [phone] Attorneys for Motion Picture Studio Parties [Additional counsel listed on signature page.]

ROBERT H. ROTSTEIN (SBN 72452) [e-mail] ERIC J. GERMAN (SBN 224557) [e-mail] MITCHELL SILBERBERG & KNUPP LLP 11377 West Olympic Boulevard Los Angeles, California 90064-1683 Tel: [phone]; Fax: [phone]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA REALNETWORKS, INC., et al., Plaintiffs, vs. DVD COPY CONTROL ASSOCIATION, et al., Defendants. UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP, et al., Plaintiffs, vs. REALNETWORKS, INC, et al., Defendants. CASE NO. C 08-4548 MHP MOTION PICTURE STUDIO PARTIES' AND DVD CCA'S RESPONSE TO REAL'S OPPOSITION TO CHANGES TO PROPOSED PRELIMINARY INJUNCTION ORDER Judge: Crtrm: Hon. Marilyn Hall Patel 15

CASE NO. C-08-4719 MHP

RESPONSE TO OPP. TO PROPOSED PI CHANGES NO. C 08-4548 MHP

Dockets.Justia.com

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The Studios and the DVD CCA have requested that the summary of the Preliminary Injunction Order be clarified to add the words "ARccOS-protected or RipGuard-protected" to make explicit that the injunction encompasses not only circumvention or breach of CSS but also circumvention of ARccOS and RipGuard. The request is based on the Court's conclusion that "the Studios are likely to prevail on their claim that RealDVD circumvents ARccOS or RipGuard in violation of the copy-control section of the DMCA." (Order ¶ 111.) Real objects to the addition of the words "ARccOS" and "RipGuard" in the summary of the Court's Order. Real does not argue that the Studios' and DVD CCA's request is in any way inconsistent with the Court's Order or that it would work any substantive change in Real's rights. Rather, Real argues that the Studios and the DVD CCA missed a purported 30-day window to seek this change, supposedly established by the deadline imposed on Real to file its notice of appeal and statement of compliance with the injunction. Neither the Order itself nor the Federal Rules put a time limit on the Studios' and DVD CCA's request. To the contrary, the Court has ample authority to clarify its Order, even after a notice of appeal is taken. See, e.g., Fed. R. Civ. P. 62(c) ("the court in its discretion may . . . modify . . . an injunction during the pendency of the appeal" of the injunction order); A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1098-99 (9th Cir. 2002) (rejecting argument that "district court lacked authority to modify the injunction pending appeal"). The proposed modification is particularly appropriate under Rule 62(c) as it does not "materially alter the status of the case on appeal." Natural Resources Defense Council, Inc. v. Southwest Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). The proposed change is just a "minor adjustments that effectuat[e] the underlying purposes" of the Order's "original requirements" and leaves "unchanged the core questions before the appellate panel." Id. The modification proposed should not, thus, negatively affect the appellate process. Real's suggestion that the Studios and the DVD CCA delayed in submitting their modification is not only irrelevant under Rule 62(c), but also inaccurate. Rather than rush to seek relief from the Court, the Studios and the DVD CCA first attempted to negotiate reasonable

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modifications to the language of the Order with Real. Only when those efforts failed did the Studios and the DVD CCA request that the Court clarify the language of the Order. Further, Real has not shown, and cannot show, any prejudice resulting from this minor modification to the Court's Order. Real complains that it has already filed a notice of appeal. But there is nothing in the changes sought by the Studios and the DVD CCA that affect Real's rights on appeal -- unless Real plans to argue, contrary to fact, that the Order somehow did not find that Real's products likely circumvent ARccOS and RipGuard (and even then, Real's rights should not be affected given the substantive holdings in the body of the Order). In any case, Real has not even filed its opening appeal brief. Indeed, Real fails to note that it has recently filed an amended notice of appeal and has obtained a 32-day extension of time to file its opening brief, until early November. Finally, Real complains that the Studios and the DVD CCA have not made clear whether Real must re-file its statement of compliance. The Studios and DVD CCA have already explained that their proposed order does not require any new statement of compliance. DATED: October 1, 2009 Respectfully submitted, MUNGER, TOLLES & OLSON LLP

By:

/s/ Glenn D. Pomerantz GLENN D. POMERANTZ

Attorneys for Motion Picture Studio Parties

AKIN GUMP STRAUSS HAUER & FELD, LLP

By:

/s/ Reginald D. Steer REGINALD D. STEER

Attorneys for DVD Copy Control Association

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