Cambridge University Press et al v. Patton et al

Filing 160

MOTION for Summary Judgment with Brief In Support by J. L. Albert, Kenneth R. Bernard, Jr, James A. Bishop, Robert F. Hatcher, Felton Jenkins, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Doreen Stiles Poitevint, Willis J. Potts, Jr, Wanda Yancey Rodwell, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Allan Vigil, Mark P. Becker, Nancy Seamans, Risa Palm, Frederick E. Cooper, Larry R. Ellis, Larry Walker. (Attachments: # 1 Brief, # 2 Exhibit A, # 3 Statement of Material Facts, # 4 Exhibit A to SOF, # 5 Exhibit B to SOF, # 6 Exhibit C to SOF, # 7 Exhibit D to SOF, # 8 Exhibit E to SOF, # 9 Exhibit F to SOF, # 10 Exhibit G to SOF, # 11 Exhibit H to SOF, # 12 Exhibit I to SOF)(Quicker, Katrina) Modified on 3/1/2010 in order to accurately reflect e-filed pleading (ank).

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, v. MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants.
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Case No. 1:08-CV-1425-ODE

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT COME NOW all Defendants in this action and file this Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1, N.D. Ga., with respect to each claim alleged in Plaintiffs' First Amended Complaint. As more fully discussed in the accompanying Statement of Undisputed Facts, Memorandum of Law and the accompanying exhibits filed contemporaneously herewith, Defendants are entitled to summary judgment with respect to Plaintiffs' claims as follows: 1. That Defendants, having been sued in their official capacities, are entitled to sovereign immunity under the Eleventh Amendment and could only be liable for any ongoing and continuous acts of alleged copyright infringement, which are denied;

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That Plaintiffs have not and cannot establish direct copyright infringement by the Defendants because Defendants have not committed any act of direct infringement in violation of the Copyright Act, 17 U.S.C. §106 et seq.; That Defendants have not committed any act of ongoing or continuous direct infringement with respect to the copyrights in the four works remaining at issue (SAGE 2, SAGE 4, Oxford 3, and Oxford 4); That Plaintiffs have not and cannot establish contributory infringement because Defendants have not induced, caused, or materially contributed to any act of alleged ongoing and continuous direct infringement; That Plaintiffs have not and cannot establish vicarious infringement because Defendants have not profited from any act of alleged ongoing and continuous direct infringement; and Plaintiffs request for injunctive relief is not sufficiently specific to justify injunctive relief against the administrators of Georgia State University and the Board of Regents of the University System of Georgia, a constitutional department in the Executive Branch of the State of Georgia.

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WHEREFORE, there being no genuine issue of material fact and being entitled to judgment as a matter of law on the issues addressed herein, Defendants pray that this Court grant their Motion as to all counts alleged by Plaintiffs, pursuant to Rule 56 and Local Civil Rule 56.1.

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ATL_IMANAGE-6742475.2

Respectfully submitted this 26th day of February, 2010. THURBERT E. BAKER Georgia Bar No. 033887 Attorney General R. O. LERER Georgia Bar No. 446962 Deputy Attorney General DENISE E. WHITING-PACK Georgia Bar No. 558559 Senior Assistant Attorney General MARY JO VOLKERT Georgia Bar No. 728755 Assistant Attorney General KING & SPALDING LLP /s/ Katrina M. Quicker Anthony B. Askew Georgia Bar No. 025300 Special Assistant Attorney General Stephen M. Schaetzel Georgia Bar No. 628653 Katrina M. Quicker Georgia Bar No. 590859 Kristen A. Swift Georgia Bar No. 702536 Attorneys for Defendants

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ATL_IMANAGE-6742475.2

CERTIFICATE OF COMPLIANCE I hereby certify, pursuant to L.R. 5.1B and 7.1D of the Northern District of Georgia, that the foregoing Defendants' Motion for Summary Judgment complies with the font and point selections approved by the Court in L.R. 5.1B. The foregoing pleading was prepared on a computer using 14-point Times New Roman font.

/s/ Katrina M. Quicker________ Katrina M. Quicker (Ga. Bar No. 590859)

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ATL_IMANAGE-6742475.2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, v. MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. § § § § § § § § § § §

Case No. 1:08-CV-1425-ODE

CERTIFICATE OF SERVICE The undersigned hereby certifies that, on this 26th day of February, 2010, I have electronically filed the foregoing Defendants' Motion for Summary Judgment with the Clerk of the Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following attorneys of record:

ATL_IMANAGE-6742475.2

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Edward B. Krugman [e-mail] Georgia Bar No. 429927 Corey F. Hirokawa [e-mail] Georgia Bar No. 357087 John H. Rains IV Georgia Bar No. 556052 BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street NW Suite 3900 Atlanta, GA 30309 Telephone: [phone] Facsimile: [phone]

R. Bruce Rich Randi Singer Todd D. Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: [phone] Facsimile: [phone]

/s/ Katrina M. Quicker________ Katrina M. Quicker (Ga. Bar No. 590859)

ATL_IMANAGE-6742475.2

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