Brave New Films 501 (C)(4) v. Weiner et al

Filing 89

Reply Memorandum re 40 MOTION for Partial Summary Judgment PLAINTIFF BRAVE NEW FILMS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Reply Brief In Support filed byBrave New Films 501 (C)(4). (Pierce, Sheila) (Filed on 5/29/2009)

Brave New Films 501 (C)(4) v. Weiner et al

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Anthony T. Falzone (SBN 190845) Julie A. Ahrens (SBN 230170) STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] William F. Abrams (SBN 88805) Sheila M. Pierce (SBN 232610) BINGHAM MCCUTCHEN LLP 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: [phone] Facsimile: 650.849.4800 E-mail: [e-mail] Attorneys for Plaintiff BRAVE NEW FILMS 501(c)(4) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

BRAVE NEW FILMS 501(C)(4), v. Plaintiff,

No. CV 08-04703 SI REPLY BRIEF IN SUPPORT OF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST MICHAEL WEINER AKA MICHAEL SAVAGE AND ORIGINAL TALK RADIO NETWORK, INC. Date: June 12, 2009 Time: 9:00 a.m. Location: Courtroom 10 Honorable Susan Illston

MICHAEL WEINER aka MICHAEL SAVAGE, and ORIGINAL TALK RADIO NETWORK, INC., Defendants.

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Dockets.Justia.com

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. I. II.

TABLE OF CONTENTS Page INTRODUCTION ............................................................................................................. 1 ARGUMENT ..................................................................................................................... 2 A. Savage And OTRN Abandon The Merits Of Brave New Films' First Claim ...................................................................................................................... 2 B. Brave New Films' Claim For Declaratory Relief Presents A Proper Case Or Controversy Concerning The Rights Of The Parties ........................................ 3 C. An Injunction Is Necessary And Appropriate To Protect Brave New Films' Rights.......................................................................................................... 8 D. The Injunction Brave New Films Seeks Is Narrowly Tailored To The Harm It Suffered And Seeks To Avoid................................................................ 10 CONCLUSION ................................................................................................................ 11

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TABLE OF AUTHORITIES Page

Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731 (Fed. Cir. 1988)................................................................................................... 5 Cardinal Chem. Co. v. Morton Int'l, Inc., 508 U.S. 83 (1993) .................................................................................................................... 5 Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996)................................................................................................. 4, 5 Crossbow Tech., Inc. v. YH Tech., 531 F. Supp. 2d 1117 (N.D. Cal. 2007) (Illston, J.).......................................................... 5, 7, 8 eBay Inc. v. Mercexchange, LLC, 547 U.S. 388 (2006) .............................................................................................................. 8, 9 Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................................. 9 Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542 (9th Cir. 1990)................................................................................................... 4 Lenz v. Universal Music Corp., No. 07-cv-03783, 2008 WL 962102 (N.D. Cal. Apr. 8, 2008) ................................................. 8 Matsushita Elec. Indust. Co., v. Zenith Radio, 475 U.S. 574 (1986) .................................................................................................................. 3 Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270 (1941) .................................................................................................................. 7 MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) .............................................................................................................. 4, 5 Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) .................................................................................................................. 9 SanDisk Corp. v. STMicroelectronics, Inc., 480 F.3d 1372 (Fed. Cir. 2007)............................................................................................. 5, 7 Shloss v. Sweeney, 515 F. Supp. 2d 1068 (N.D Cal. 2007) .................................................................................... 8 Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054 (Fed. Cir. 1995)................................................................................................... 4 ii
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TABLE OF AUTHORITIES (continued)

Page

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) ................................................................................................................ 10 Vernor v. Autodesk, Inc., 555 F.Supp. 2d 1164 (W.D. Wash. 2008)................................................................................. 4

17 U.S.C. § 512(f) ........................................................................................................................... 2 28 U.S.C. § 2202 (2006) ................................................................................................................. 9

Fed. R. Civ. P. 56(e)....................................................................................................................... 3

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I.

INTRODUCTION Despite their previous assertions that Brave New Films' video Michael Savage

Hates Muslims (the "Video") is not protected fair use, defendants Michael Weiner aka Michael Savage ("Savage") and Original Talk Radio Network, Inc. ("OTRN") have apparently abandoned that position in the face of Brave New Films' motion for summary judgment on its first claim for relief. Brave New Films asks the Court to declare that the Video makes fair use of Savage's radio program and to enjoin Savage and OTRN from interfering with any further distribution of the Video and the free speech rights that underlie it. In response to Brave New Films' motion, neither Savage nor OTRN contest the fair use issue, and present no facts that could create a genuine dispute on that issue. Instead, Savage and OTRN try to avoid the fair use issue by suggesting there is no "live dispute" among the parties. Yet an express charge of infringement has long been sufficient to establish a justiciable controversy between the asserted owner of an intellectual property right and an accused infringer. Here, (1) OTRN's counsel sent a takedown letter that explicitly charged that the Video infringes copyrights owned by Savage; (2) Savage previously sued the Council on American Islamic Relations ("CAIR") for distributing a similar video; and (3) both defendants asserted in their answers and elsewhere that the Video is not protected by fair use. This is more than enough to create a proper case or controversy and a "live dispute" among all parties to this case. While Savage and OTRN assert that they have not sued Brave New Films, they do not state they will not do so in the future, or even disclaim any intention of doing so. Apparently, Savage and OTRN want to keep their options open. That is precisely the point of the declaratory and injunctive relief Brave New Films seeks here. It seeks to establish Brave New Films' right to distribute the Video, and to prevent Savage and OTRN from interfering with that right. That relief is both necessary and appropriate here, and there are no disputes of fact that prevent the Court from granting Brave New Films' motion and issuing that relief now.

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II.

ARGUMENT A. Savage And OTRN Abandon The Merits Of Brave New Films' First Claim Savage and OTRN purport to be confused about the relief that Brave New Films

requests through this motion, including the claim on which Brave New Films seeks summary judgment. See Savage's Opposition to Plaintiff's Motion for Partial Summary Judgment, Docket No. 83 ("Savage Opp.") at 2:1-23; OTRN's Opposition to Plaintiff's Motion for Partial Summary Judgment. Docket No, 87 ("OTRN Opp.") at 2:6-26. There should be no mistake. Brave New Films pleads two claims in its complaint, one for declaratory relief and one for misrepresentation under 17 U.S.C. § 512(f). See Complaint for Declaratory Judgment and Damages, Docket No. 1 ("Complaint") at ¶¶ 27-34. Brave New Films' summary judgment motion relates only to its first claim for declaratory relief. See Brave New Films' Notice of Motion and Motion at 1:2-9; Brave New Films' Memorandum of Points and Authorities in Support of Motion for Partial Summary Judgment, Docket No. 40 ("BNF MSJ") at 1:1-11, 8-15.1 There should be no real dispute that the Video is protected by the Fair Use Doctrine. Each of the fair use factors weighs heavily in favor of Brave New Films, and the Video is not materially different from the work at issue in the CAIR litigation, which this Court held to be fair use as a matter of law on CAIR's motion for judgment on the pleadings. See BNF MSJ at 8:23-15:6; see also Request For Judicial Notice ISO of Plaintiff's Motion For Summary Judgment, Docket No. 42 ("RJN"), Ex. C. Notwithstanding that, Savage and OTRN asserted (without significant explanation) in their pleadings and their own motions for summary judgment that the Video is not protected by fair use. See Savage Answer, Docket No. 69, at 24:2-4; Savage Motion for Summary Judgment, Docket No. 74 ("Savage MSJ") at 15:12-13, 21:3-5; Shapiro Declaration in Support of Savage MSJ, Docket No. 75 ("Shapiro Decl. ISO Savage

Brave New Films acknowledges that further discovery is required in connection with its second claim for misrepresentation under 17 U.S.C. § 512(f) and does not move for summary judgment on that claim. 2
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MSJ") at 2:10-15; Shapiro Declaration in Support of Savage Opp., Docket No. 84 ("Shapiro Decl. ISO Savage Opp.") at 2:12-17; OTRN Answer, Docket No. 19, at 21:16-20; OTRN Motion for Summary Judgment, Docket No. 43 ("OTRN MSJ") at 13:22-25, 16:3-5; Shapiro Declaration in Support of OTRN MSJ, Docket No. 44 ("Shapiro Decl. ISO OTRN MSJ") at 2:5-10. Now, in the face of Brave New Films' summary judgment motion on the fair use issue, neither Savage nor OTRN addresses the merits of the fair use issue, nor set forth any specific facts that would show there is a genuine issue for trial on the fair use issue. See Fed. R. Civ. P. 56(e); Matsushita Elec. Indust. Co., v. Zenith Radio, 475 U.S. 574, 586-87 (1986). B. Brave New Films' Claim For Declaratory Relief Presents A Proper Case Or Controversy Concerning The Rights Of The Parties Having abandoned the merits of the fair use issue, Savage and OTRN try to avoid judgment on the contention there is no "live dispute" among the parties. See Savage Opp. at 6:78; OTRN Opp. at 6:11-12. While Savage and OTRN stop short of contending that the Court lacks subject matter jurisdiction over this action, they do contend there is nothing for the Court to decide because "the video has never been challenged by Savage" and the "legal relations" of the parties "are not in dispute." See Savage Opp. at 7:11-12; OTRN Opp. at 7:17. The undisputed facts show otherwise. It is undisputed that OTRN's counsel sent a takedown letter to YouTube stating under penalty of perjury that he "represents the owner of [the] exclusive right[s] infringed" by the videos identified in the letter. See Complaint, Ex. C; Savage Motion to Dismiss, Docket No. 24 ("Savage MTD"), Ex. A; OTRN MSJ, Ex. A. That letter identifies the Video at issue as infringing material, and the only Michael Savage or OTRN content that the Video uses is from the October 29, 2007 broadcast of The Michael Savage Show. Complaint, Ex. C; Savage MTD, Ex. A; OTRN MSJ, Ex. A. It is further undisputed that Michael Savage owns the copyrights in that show and it is likewise undisputed that he sued for infringement of his copyrights in this very program. See RJN, Ex. A at ¶¶ 1, 6, 13 and Ex. E. The takedown letter expressly charges infringement concerning the Video. When coupled with Savage's demonstrated willingness to pursue infringement allegations, it leaves no doubt there is a clear and concrete dispute about the legal status of the Video. 3
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No more is required to establish a proper dispute under the Declaratory Judgment Act. The United States Supreme Court recently held that a proper case or controversy exists where the plaintiff establishes that the dispute [is] definite and concrete, touching the legal relations of the parties having adverse legal interests; and that it [is] real and substantial and admit of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. . . . Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (internal quotations omitted). Here, the dispute is precise and concrete ­ the question is whether the Video infringes any copyrights held by Savage or OTRN. That dispute is real and substantial ­ it admits to specific relief through a decision on the infringement issue and does not require the court to address any hypothetical issue. The parties take adverse positions ­ the takedown letter expressly asserts infringement of rights Savage owns, and both Savage and OTRN have asserted in various filings that the Video is not protected by fair use. See supra 2:18-3:1. Despite the attempts of Savage and OTRN to disavow the dispute, the undisputed facts are more than sufficient to establish a proper case or controversy under MedImmune. See Vernor v. Autodesk, Inc., 555 F. Supp. 2d 1164, 1167 (W.D. Wash. 2008) (DMCA notices causing suspension of eBay account created proper declaratory relief controversy between the parties under MedImmune). Indeed, Brave New Films could establish a proper case or controversy under the more stringent standard that preceded MedImmune. Prior to MedImmune, the Ninth Circuit and others courts required a declaratory relief plaintiff to demonstrate a reasonable apprehension of suit. See, e.g., Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555-56 (9th Cir. 1990); Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1058 (Fed. Cir. 1995); Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 965-66 (10th Cir. 1996). MedImmune rejected that standard as overly restrictive and inconsistent with prior 4 CV 08-04703 SI
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Supreme Court law. See MedImmune, 549 U.S. at 132 n.11; SanDisk Corp. v. STMicroelectronics, Inc., 480 F.3d 1372, 1380 (Fed. Cir. 2007). This Court has recognized that, following MedImmune, a declaratory relief plaintiff need not meet the "reasonable apprehension of suit" test in order to establish a proper case or controversy. See, e.g., Crossbow Tech., Inc. v. YH Tech., 531 F. Supp. 2d 1117, 1120 (N.D. Cal. 2007) (Illston, J.). Even under the pre-MedImmune analysis, Brave New Films would prevail because an express charge of infringement has long been held sufficient to create a proper case or controversy. See Cardinal Chem. Co. v. Morton Int'l, Inc., 508 U.S. 83, 96 (1993) (where "a party has actually been charged with infringement of [a] patent, there is, necessarily, a case or controversy adequate to support jurisdiction" under the Declaratory Judgment Act) (emphasis in original); Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 736 (Fed. Cir. 1988) (where a "defendant has expressly charged a current activity of the plaintiff as an infringement, there is clearly an actual controversy"). Where, as here, a party has a history of enforcing its rights through litigation, even less is required. See Cardtoons, 95 F.3d at 966 (holding one letter threatening to pursue "full legal remedies" coupled with "[defendant's] history of suing other card companies in similar situations . . . created a reasonable apprehension . . . of impending litigation").2 While Brave New Films could undoubtedly demonstrate a reasonable apprehension of suit under the pre-MedImmune standard, the new standard is even less onerous. In recognizing that the reasonable apprehension test did not survive MedImmune, the Federal Circuit held that a declaratory relief plaintiff presents a valid case or controversy in the patent context "where a patentee asserts rights under a patent based on certain identified ongoing or planned activity of another party, and where that party contends that it has the right to engage in the accused activity without license . . . ." SanDisk, 480 F.3d at 1381.

The fact the charge of infringement was directed to YouTube, not Brave New Films directly, is not relevant. See Arrowhead, 846 F.2d at 736-37 (correspondence sent to declaratory relief plaintiff's customers created proper case or controversy). 5
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Here, that standard is plainly met. OTRN asserted rights under the copyrights at issue in this case, and Brave New Films contends it has the right to distribute the Video using that copyrighted material free of infringement liability. Even if OTRN does not presently own those rights, it does not change this fact ­ given its status as Savage's radio network, it could certainly pursue its assertions of infringement simply by acquiring the rights from Savage. Nor does OTRN's attempt to distance itself from Savage change the result, or let Savage off the hook. OTRN's counsel stated under penalty of perjury that it represents the owner of the rights asserted, and Savage owns the copyrights asserted against Brave New Films as a matter of public record. See Complaint, Ex. C; Savage MTD, Ex. A; OTRN MSJ, Ex. A.; RJN, Ex. E. OTRN and Savage cannot avoid the controversy they created with a shell game that uses misleading and apparently incorrect assertions of ownership to remove material under the Digital Millennium Copyright Act ("DMCA"), only to contend those statements immunize any one of them from suit under the Declaratory Judgment Act. While counsel for OTRN tries to disavow the representation made in the takedown letter as a simple "mistake," this does not appear to be an isolated mistake. In attempting to distance Savage from takedown letter, counsel for OTRN also stated under penalty of perjury that: neither Savage nor any representative of Savage was notified that a removal demand was being sent to YouTube. No information concerning the issuance of such demand was sent to Savage or any representative of Savage after the fact (at least prior to the commencement of this Action). I was the coordinator of all communications relating to that demand, and there were no communications from or to Savage . . . prior to the time that he learned that he had been named as a defendant in this Action. Declaration of Ronald H. Severaid in Support of Savage's Opposition to Plaintiff's Motion for Partial Summary Judgment, Docket No. 86 ("Severaid Decl. ISO Savage Opp.") at ¶ 15. Yet this statement conflicts directly with the takedown letter itself, which states that a copy was sent to Ian Boyd. See Complaint, Ex. C; Savage MTD, Ex. A; OTRN MSJ, Ex. A. Mr. Boyd was identified in the CAIR litigation as "Michael Savage's copyright and business attorney." Supplemental Request for Judicial Notice in Support of Plaintiff's Motion for Partial 6 CV 08-04703 SI
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Summary Judgment ("Supp. RJN"), Ex. B at ¶ 3; see also Supp. RJN, Ex. A at 19:2-3. Mr. Boyd is a partner with the law firm of Harvey Siskind LLP, the same firm to which contributors send donations to Savage's legal fund. See Supp. RJN, Exs. C, D and E. Mr. Boyd's role as Michael Savage's attorney is further corroborated by his appearance as counsel of record for Mr. Savage in other matters. See, e.g., Supp. RJN, Ex. F at 2 ("Ian K. Boyd, attorney for Michael and Janet Weiner . . . ."). Mistakes and misrepresentations aside, Savage's radio network asserted that the Video infringes copyrights that Savage owns ­ that is sufficient to create a case or controversy under either standard, old or new, as to both Savage and OTRN. This remains true whether Savage had anything to do with the takedown letter or not. See Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941) (finding proper case or controversy where insurer initiated declaratory relief action against collision victim who had not sued, or threatened to sue, insurer). Struggling to avoid the dispute they created, Savage and OTRN protest they have "never threatened" or "brought" any legal action against Brave New Films. Savage Opp. at 5:45; OTRN Opp. at 3:16-17. As explained above, no such explicit threat is required to create a case or controversy. See, e.g., SanDisk, 480 F.3d at 1380. Insofar as Savage and OTRN suggest the controversy between them and Brave New Films is moot based on their lack of intention to sue Brave New Films, they are mistaken. Neither Savage nor OTRN has stated it will not sue Brave New Films, or even disclaimed any intention to do so. But even if they had gone that far, it would still not be enough to moot this controversy, especially given Savage's demonstrated willingness to assert copyright claims against obvious fair use. See id. at 1382-83 (counsel's statement that declaratory relief defendant "has absolutely no plan whatsoever to sue [plaintiff]" was insufficient to moot controversy in light of its demonstrated willingness to enforce its rights). If Savage and OTRN are serious about their professed desire to avoid legal action and are really interested in mooting this controversy, there is an easy and obvious way for them to do so ­ they must submit a binding covenant not to sue that will forever foreclose them from undertaking the conduct that Brave New Films seeks to enjoin. See Crossbow, 531 F. Supp. 2d 7 CV 08-04703 SI
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at 1122-23 (proper way to moot declaratory relief controversy is to issue covenant not to sue that resolves the entire controversy between the parties); Shloss v. Sweeney, 515 F. Supp. 2d 1068, 1078 (N.D. Cal. 2007) (declaratory relief defendant cannot moot controversy unless it issues covenant not to sue that covers entire controversy between the parties). Savage and OTRN have chosen not to avail themselves of this mechanism, which suggests they are attempting to preserve the right to take future action against Brave New Films should they desire to do so, a suggestion made even more apparent by the fact Savage and OTRN have repeatedly asserted the Video is not protected by the Fair Use Doctrine.3 See supra 2:18-3:1. C. An Injunction Is Necessary And Appropriate To Protect Brave New Films' Rights Savage and OTRN contend that even if the Court finds Brave New Films' Video makes fair use of Savage's October 29, 2007 radio show, Brave New Films is not entitled to injunctive relief. See Savage Opp. at 9-11; OTRN Opp. at 8-10 (citing eBay Inc. v. Mercexchange, LLC, 547 U.S. 388 (2006)). Yet the injunction Brave New Films seeks is necessary to protect its free speech rights. Without it, Savage or OTRN would be free to attack or seek the removal of the Video yet again, whether from another video-sharing platform like YouTube, or even Brave New Films' own internet service provider. The Video criticizes a national media figure in regard to an issue of great social, political and moral importance. If that Video is protected from copyright infringement liability by the Fair Use Doctrine, there is no basis to leave Brave New Films vulnerable to further attempts to suppress its protected speech.

In an unpublished decision, Lenz v. Universal Music Corp., No. 07-cv-03783, 2008 WL 962102, at *5 (N.D. Cal. Apr. 8, 2008), Judge Fogel held that a takedown notice did not, by itself, create a case or controversy where the defendant represented it had no intention of ever asserting an infringement claim against the plaintiff. Neither Savage nor OTRN has made an equivalent representation here, much less the binding representation in the form of a covenant not to sue that is required to moot this controversy. Moreover, Savage has demonstrated his propensity to enforce his rights aggressively, as evidenced by his lawsuit against CAIR, and the fact OTRN's counsel issued the takedown letter just months after this Court held CAIR's website made fair use of Savage's show. In light of this, any non-binding representation issued here would not be credible or effective. 8
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Savage and OTRN do not dispute that the Court has discretion to enter a permanent injunction upon resolving Brave New Films' declaratory relief claim in Brave New Films' favor. See eBay, 547 U.S. at 391 (decision to grant or deny permanent injunction is within the discretion of district court); see also 28 U.S.C. § 2202 (2006) (authorizing further relief based on a declaratory judgment). Instead, Savage and OTRN suggest that Brave New Films cannot satisfy the four-factor test for a permanent injunctive relief articulated by eBay. To meet that test a plaintiff must show that: (1) it has suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction. See eBay, 547 U.S. at 391. Here, Brave New Films meets every element. Brave New Films has already suffered irreparable harm, because the takedown letter resulted in the removal of both the Video and the entire contents of Brave New Films' channel (containing hundreds of videos) from YouTube. See Gilliam Declaration in Support of BNF MSJ, Docket No. 41 ("Gilliam Decl.") at ¶ 3. While this removal was temporary and the content was eventually restored, even the temporary unavailability of Brave New Films' content restricted its ability to communicate freely and disseminate its political views. See Elrod v. Burns, 427 U.S. 347, 373 (1976) ("[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"). Indeed, the removal of Brave New Films' content occurred at a particularly critical time, as Brave New Films was mounting a publicity campaign in connection with the Presidential election. Gilliam Decl. at 3:6-10. This only heightens the harm Brave New Films suffered. See Elrod, 427 U.S. at 373 n.29 ("[t]he timeliness of political speech is particularly important"). The Video and much of the other Brave New Films content were rendered unavailable and concerned politics and public affairs, which heightens the harm still further. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) ("[s]peech concerning public affairs is more than self-expression; it is the essence of self government") (internal citation omitted). 9
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If Savage and OTRN are not enjoined from sending future takedown letters, this harm to Brave New Films could be repeated. This is no idle concern given Savage's demonstrated willingness to pursue infringement claims against those who criticize him, and the fact the takedown letter at issue here was sent mere months after this Court held CAIR's very similar criticism of Savage was protected by fair use as a matter of law. Money damages are plainly inadequate to compensate for this harm, past or future, because the harm stems from the unavailability of Brave New Films' content, and the fact its speech has been muted. While it is no doubt possible to attach some economic value to this harm, the brunt of the harm is non-economic by definition. Insofar as the Court determines the Video is protected by fair use, the balance of hardships among the parties tilts dramatically in favor of Brave New Films. Enjoining Savage and OTRN from attempting to suppress what is by definition protected speech presents no cognizable hardship to Savage or OTRN, yet refusing to enjoin such attempts leaves Brave New Films vulnerable to additional harm to its free speech rights. The public interest lies overwhelmingly in favor of an injunction here for largely the same reasons. The injunction would protect the availability of protected speech on important issues of public concern. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756-57 (1976) (First Amendment protects the right to receive information and ideas as well as provide them). D. The Injunction Brave New Films Seeks Is Narrowly Tailored To The Harm It Suffered And Seeks To Avoid In its Complaint, Brave New Films prays for an injunction restraining Savage and

bringing any lawsuit or threatening legal action relating to the Video, delivering DMCA takedown notices directed at the Video to any third party, or asserting to any third party that it has any legal right to interfere with the publication, distribution, performance, display or licensing of the Video, or to interfere with any linking to or from the Video on the internet. Complaint at 9:11-16. 10
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Savage contends this injunction would be "overbroad," "open-ended" and would "allow[] unlimited use of the entirety of [his] broadcasts" without "any limitations as to the scope of the use." Savage Opp. at 4:18-5:2. The injunction Brave New Films seeks, however, is narrow and specific. It is limited to the specific Video at issue in this case, and only restrains Savage and OTRN from further attempts to suppress that specific Video. It is therefore narrowly tailored to the harm Brave New Films suffered and the future harm it seeks to avoid through injunctive relief. III. CONCLUSION The undisputed facts demonstrate there is a proper case or controversy among the parties and that Brave New Films' Video is protected by the Fair Use Doctrine as a matter of law. All factors favor the permanent injunctive relief Brave New Films seeks, and that injunction is narrowly tailored to the specific harm Brave New Films is entitled to avoid. Accordingly, the Court should enter summary judgment in favor of Brave New Films on its first claim for relief, and issue the permanent injunction Brave New Films requests in its Complaint.

DATED: May 29, 2009

By:

/s/ Anthony T. Falzone Anthony T. Falzone Julie A. Ahrens STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY William F. Abrams Sheila M. Pierce BINGHAM MCCUTCHEN LLP Attorneys for Plaintiff BRAVE NEW FILMS 501(c)(4)

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CV 08-04703 SI

REPLY BRIEF IN SUPPORT OF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT