Datel Holdings Ltd. et al v. Microsoft Corporation

Filing 285

ORDER GRANTING re 282 MOTION for Leave to File Reply Brief Amici Curiae In Support of Datel's Motion for Partial Summary Judgment filed by Electronic Frontier Foundation. Signed by Judge Elizabeth D Laporte on 08/01/2011. (kns, COURT STAFF) (Filed on 8/2/2011)

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Corynne McSherry (CA SBN 221504)
[e-mail]
Abigail Phillips (CA SBN 225562)
[e-mail]
Marcia Hofmann (CA SBN 250087)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]

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Jason M. Schultz (CA SBN 212600)
[e-mail]
SAMUELSON LAW, TECHNOLOGY &
PUBLIC POLICY CLINIC
U.C. Berkeley School of Law
396 Simon Hall
Berkeley, CA 94720-7200
Telephone: [phone]
Facsimile: [phone]

Sherwin Siy (DC SBN 501024)
[e-mail]
PUBLIC KNOWLEDGE
1818 N Street, NW, Suite 410
Washington, DC 20036
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Amicus Curiae
ELECTRONIC FRONTIER
FOUNDATION

Attorneys for Amicus Curiae
PUBLIC KNOWLEDGE
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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DATEL HOLDINGS LTD. And DATEL )
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DESIGN & DEVELOPMENT, INC.,
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Plaintiffs,
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v.
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MICROSOFT CORPORATION,
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Defendant.
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CASE NO. 09-cv-5535 EDL
ELECTRONIC FRONTIER FOUNDATION
AND PUBLIC KNOWLEDGE’S MOTION
FOR LEAVE TO FILE REPLY BRIEF AMICI
CURIAE IN SUPPORT OF DATEL’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT; [PROPOSED] ORDER
THEREON
Courtroom: E, 15th Floor
Magistrate Judge Elizabeth D. Laporte

MOTION FOR LEAVE TO FILE REPLY BRIEF AMICI CURIAE
CASE NO. 09-cv-5535 EDL

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that the undersigned proposed Amici Curiae will and hereby do

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move the Court for leave to file the accompanying proposed Reply Brief Amici Curiae In Support of

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Datel’s Motion for Partial Summary Judgment. Plaintiffs consent to the filing of this brief. Defendant

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does not.

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I.

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As explained in Amici’s motion for leave to file their principal brief, the Electronic Frontier

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Foundation (EFF) is a non-profit, member-supported civil liberties organization working to protect

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rights in the digital world. As part of its mission, EFF has served as counsel or amicus in key cases

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addressing user rights to free speech, privacy, and innovation as applied to the Internet and other new

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technologies. Public Knowledge is a non-profit public interest 501(c)(3) corporation, working to

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defend citizens’ rights in the emerging digital culture. Its primary mission is to promote innovation,

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protect the legal rights of all users of copyrighted works, and ensure that copyright law remains

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balanced and does not slow technology innovation, unduly burden free speech, shrink the public

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domain, or prevent fair use.

Statement of Interest of Amici Curiae

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II.

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EFF and Public Knowledge file this brief in order to assist the Court in its consideration of the

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proper scope of Section 1201(a) of the Digital Millennium Copyright Act (“DMCA”), and the

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common law doctrines of misuse and exhaustion. Defendant Microsoft and its amicus ESA submitted

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briefing in response to EFF and PK’s principal brief that misconstrues the arguments and misstates the

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holding of the key controlling case in this circuit on Section 1201 liability, MDY Industries v. Blizzard

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Entertainment, 629 F.3d 928 (9th Cir. 2010) (“MDY”). See Def. Resp. to EFF Am. Br.; ESA Am. Br.

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EFF and PK seek leave to file a short reply brief in order to correct these misstatements and explain

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how EFF and PK’s approach is consistent with the text and structure of 17 U.S.C. § 1201 as well as

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long-standing common law precedents.

Issues Addressed by Movants in the Brief

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These issues are particularly pressing because an erroneous interpretation of MDY and its

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teachings could lead to subsequent decisions that may significantly limit consumers’ ability to make
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MOTION FOR LEAVE TO FILE REPLY BRIEF AMICI CURIAE
CASE NO. 09-cv-5535 EDL

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reasonable uses of products they lawfully purchase. Thus, Amici believe this brief will assist the

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Court’s deliberations regarding the important legal issues raised in this case.

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CONCLUSION

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For the above reasons, EFF and Public Knowledge respectfully request this Court’s leave to

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submit the accompanying brief.

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Dated: July 29, 2011

By:

/s/ Corynne McSherry
Corynne McSherry, Esq.
Abigail Phillips, Esq.
Marcia Hofmann, Esq.
ELECTRONIC FRONTIER
FOUNDATION
Jason M. Schultz, Esq.
SAMUELSON LAW, TECHNOLOGY &
PUBLIC POLICY CLINIC

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Attorneys for Amicus Curiae
ELECTRONIC FRONTIER
FOUNDATION
Sherwin Siy, Esq.
PUBLIC KNOWLEDGE
Attorneys for Amicus Curiae
PUBLIC KNOWLEDGE

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MOTION FOR LEAVE TO FILE REPLY BRIEF AMICI CURIAE
CASE NO. 09-cv-5535 EDL

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[PROPOSED] ORDER

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Good cause appearing, the motion of the EFF and Public Knowledge for leave to file a brief of
amici curiae is hereby GRANTED.

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IT IS SO ORDERED.
August 1, 2011
Dated: ________________________

______________________________
Honorable Elizabeth D. Laporte
United States Magistrate Judge

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[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE REPLY BRIEF OF
AMICI CURIAE
CASE NO. 09-cv-5535 EDL