Coupons, Inc. v. Stottlemire

Filing 55

Motion and of the Electronic Frontier Foundation for Leave to File Amicus Curiae Brief in Support of Defendant's Motion to Dismiss ( #49 ) filed by Electronic Frontier Foundation. Motion Hearing set for 4/22/2008 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Attachments: #1 Declaration of Jennifer Lynch In Support of Motion to File Amicus Brief, #2 (Proposed) Order, #3 Exhibit Amicus Brief of Electronic Frontier Foundation in Support of Defendant's Motion to Dismiss) (Lynch, Jennifer) (Filed on 3/25/2008) Text modified on 3/26/2008 conforming to posted document caption, linkage added (bw, COURT STAFF).

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SAMUELSON LAW, TECHNOLOGY & PUBLIC POLICY CLINIC JASON M. SCHULTZ (SBN 212600) JENNIFER A. LYNCH (SBN 240701) DOMENIC IPPOLITO (Application for Student Practice Pending) HARI O'CONNELL (Application for Student Practice Pending) UC Berkeley Law School 389 Simon Hall Berkeley, CA 94720 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Amicus Curiae Electronic Frontier Foundation

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

COUPONS, INC., v. Plaintiff,

Case No. 5:07-CV-03457 HRL NOTICE OF MOTION AND MOTION OF THE ELECTRONIC FRONTIER FOUNDATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS Date: Time: Place: Judge: April 22, 2008 10:00 A.M. Courtroom 2, 5th Floor Hon. Howard R. Lloyd

JOHN STOTTLEMIRE and DOES 1-10, Defendants.

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NOTICE OF MOTION AND MOTION OF THE ELECTRONIC FRONTIER FOUNDATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

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TO PLAINTIFFS, DEFENDANTS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on April 22, 2008, at 10:00 AM in Courtroom 2 of the United States District Court for the Northern District of California, 280 South 1st Street, San Jose, California, proposed Amicus Curiae Electronic Frontier Foundation ("EFF") will, and hereby does, move for leave to appear and file the accompanying amicus curiae brief in the above-captioned case in support of Defendant John Stottlemire's pending Motion to Dismiss. This Motion is based on this Notice of Motion and the accompanying Declaration of Jennifer Lynch, submitted herewith. EFF is a member-supported, nonprofit public interest organization devoted to maintaining the traditional balance that copyright law strikes between the interests of copyright owners and the interests of the public. Founded in 1990, EFF represents more than 13,000 contributing members including consumers, hobbyists, computer programmers, entrepreneurs, students, teachers, and researchers united in their reliance on a balanced copyright system that ensures adequate protection for copyright owners while ensuring access to information in the digital age. In working to ensure that the public's traditional rights are preserved as we move into the digital era, EFF has participated as counsel or amicus curiae in many of the leading cases testing the anticircumvention provisions of the Digital Millennium Copyright Act ("DMCA"). EFF was counsel for amicus curiae Consumer's Union in Chamberlain v. Skylink, 381 F.3d 1198 (Fed. Cir. 2004), which held that a consumer's right to use his automatic garage door trumped the manufacturer's right to lock in the consumer to a single brand of door opener, even when anti-circumvention measures were involved. EFF also participated in Lexmark v. Static Control Components, 387 F.3d 522 (6th Cir. 2004), which held that a consumer's right to use remanufactured toner cartridges for a computer printer was not abridged when the original cartridge manufacturer attempted to invoke the DMCA to protect the communication between the printer and the cartridge. Plaintiffs' Complaint is premised on a broad interpretation of what constitutes access and rights controls under 17 U.S.C. § 1201. Plaintiff alleges, incorrectly, that pure speech 1 Case No. 5:07-CV-03457 HRL
NOTICE OF MOTION AND MOTION OF THE ELECTRONIC FRONTIER FOUNDATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

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should be treated as the distribution of a circumvention measure, as prohibited by § 1201. Plaintiff has also claimed additional causes of action under state law that are explicitly preempted by the Copyright Act in 17 U.S.C. § 301. Defendant is proceeding pro se. For these reasons, EFF believes the Court may be assisted by additional briefing, especially on these copyright and free speech issues. The parties have been informed of the filing of this amicus brief, and both parties have consented to the filing. For the reasons set forth above, EFF asks that this Court grant its Motion for leave to file the accompanying amicus curiae brief.

DATED: March 25, 2008

By:

/s/ Jennifer A. Lynch

Jennifer A. Lynch Samuelson Law, Technology & Public Policy Clinic at U.C. Berkeley Law School Attorney for Amicus Curiae Electronic Frontier Foundation (Supervising Attorney)

By:

/s/ Domenic Ippolito DOMENIC IPPOLITO Intern, Samuelson Clinic (Application for Student Practice Pending)

By:

/s/ Hari O'Connell HARI O'CONNELL Intern, Samuelson Clinic (Application for Student Practice Pending)

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NOTICE OF MOTION AND MOTION OF THE ELECTRONIC FRONTIER FOUNDATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS