Cambridge University Press et al v. Patton et al

Filing 298

REPLY BRIEF re 273 MOTION in Limine to Overrule Objections to Evidence of Alleged Infringements filed by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit A)(Rains, John)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA,
ATLANTA DIVISION

CAMBRIDGE UNIVERSITY PRESS,
OXFORD UNIVERSITY PRESS,
INC., and SAGE PUBLICATIONS,
INC.,
Plaintiffs,
Civil Action No. 1:08-CV-1425-ODE
- v.MARK P. BECKER, in his official
capacity as Georgia State University
President, et. al.
Defendants.

PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION IN
LIMINE TO OVERRULE OBJECTIONS TO EVIDENCE OF
ALLEGED INFRINGEMENTS
Plaintiffs Cambridge University Press, Oxford University Press, Inc., and
SAGE Publications, Inc. (collectively, “Plaintiffs”) submit this reply to
Defendants’ Brief in Opposition to Plaintiffs’ Motion In Limine to Overrule
Objections to Evidence of Alleged Infringements, Docket No. 289 (“Defs.’
Opp’n”). The instant motion concerns the parties’ March 15, 2011 Joint Filing,
Docket No. 266 (the “Joint Filing”). In the Joint Filing, Defendants interposed
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several objections with respect to Plaintiffs’ allegedly infringed works: (1) that an
exclusive license to publish a work does not confer standing to bring a copyright
infringement claim; (2) that copyright registration is a prerequisite to a suit for
infringement of works first published outside the United States; and (3) that
Plaintiffs should have produced “deposit copies” of each allegedly infringed work.
Plaintiffs’ motion explained why each of these objections was unfounded as a
matter of law and should, accordingly, be overruled. Docket No. 273.
In their opposition, Defendants essentially concede that Plaintiffs are correct
as to the first two of Defendants’ objections. As to the first, Defendants admit that
an exclusive licensee has standing to sue for copyright infringement. Defs.’ Opp’n
at 2. Accordingly, Plaintiffs’ motion on this point is uncontested and should be
granted. Defendants now claim, however, that what they really are disputing is
whether Plaintiffs can demonstrate ownership of the works at issue, which they
note is the subject of a separate in limine motion they have filed. Id. at 2-3.
Plaintiffs dispute Defendants’ contentions regarding Plaintiffs’ proof of copyright
ownership on a number of grounds, but those contentions are – at best – irrelevant
to this motion,1 which is directed solely to the legal proposition that an exclusive

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Defendants’ primary example, The Fragility of Goodness, is a work that Plaintiffs
told Defendants three weeks ago they were removing from their list of alleged

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licensee has standing to sue. As Defendants have conceded the point, their legally
baseless objections on the Joint Filing “no assignment of copyright to publisher
provided (license only)” should be overruled as contrary to law.
As to the second prong of Plaintiffs’ motion, Defendants again admit
Plaintiffs’ legal point: that Plaintiffs need not produce a copyright registration
certificate for works published in the United Kingdom at least thirty days in
advance of publication in the United States. Defs.’ Opp’n at 5. In light of that
concession, the Court should grant Plaintiffs’ motion on this point and overrule
Defendants’ objection that Plaintiffs have not produced registrations for foreign
works. Defendants’ arguments as to whether Plaintiffs works are actually foreign
works or, if so, whether they are copyrightable, (Defs.’ Opp’n at 6), should be
raised – if at all – after Plaintiffs present their case at trial.
Finally, as to the last prong of Plaintiffs’ Motion concerning the purported
need to provide deposit copies for certain works, Plaintiffs have explained why
Defendants’ position is wrong at length in their motion in limine (Docket No. 273)
and in their brief opposing Defendants’ Motion in Limine to Exclude Evidence of
Alleged Infringement of Improperly Asserted Copyrights (Docket No. 288 at Part

infringements. See Exhibit A (email exchange between Plaintiffs’ counsel Randi
Singer and Defendants’ counsel Steve Schaetzel, dated April 18, 2011).
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II), which Plaintiffs incorporate here by reference. For the reasons discussed in
those filings, Plaintiffs respectfully move the Court to overrule Defendants’
unfounded “deposit copy” objection. There is no reason, as Defendants suggest, to
reserve ruling on this issue until trial. As a matter of law, Plaintiffs have no burden
at trial to demonstrate, as part of their infringement claims, that they deposited
copies with the U.S. Copyright Office. Id.
CONCLUSION
For the foregoing reasons, Plaintiffs move the Court to grant their Motion In
Limine to Overrule Objections to Evidence of Alleged Infringements in its
entirety.
Respectfully submitted this 11th day of May, 2011.
/s/ John H. Rains IV
Edward B. Krugman
Georgia Bar No. 429927
John H. Rains IV
Georgia Bar No. 556052
Bondurant, Mixson & Elmore, LLP
1201 West Peachtree Street NW
Suite 3900
Atlanta, GA 30309
[phone]
R. Bruce Rich (pro hac vice)
Randi Singer (pro hac vice)
Jonathan Bloom (pro hac vice)
Todd D. Larson (pro hac vice)
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WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Attorneys for Plaintiffs

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CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1(D), I hereby certify that this document complies
with the font and point selections set forth in Local Rule 5.1. This document was
prepared in Times New Roman 14 point font.
/s/ John H. Rains IV
John H. Rains IV

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CERTIFICATE OF SERVICE
I hereby certify that I have this day filed the foregoing PLAINTIFFS’
REPLY IN FURTHER SUPPORT OF THEIR MOTION IN LIMINE TO
OVERRULE OBJECTIONS TO EVIDENCE OF ALLEGED
INFRINGEMENTS with the Clerk of Court using the CM/ECF filing system
which will send e-mail notification of such filing to opposing counsel as follows:
Stephen M. Schaetzel, Esq.
Kristen A. Swift, Esq.
C. Suzanne Johnson, Esq.
Mary Katherine Bates, Esq.
KING & SPALDING
1180 Peachtree Street
Atlanta, Georgia 30309
Katrina M. Quicker, Esq.
BALLARD SPAHR, LLP
999 Peachtree Street, Suite 1000
Atlanta, Georgia 30309
Anthony B. Askew, Esq.
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street, Suite 900
Atlanta, GA 30308
Mary Jo Volkert, Esq.
Assistant S. Attorney General
40 Capitol Square
Atlanta, Georgia 30334
This 11th day of May, 2011.
/s/ John H. Rains IV
John H. Rains IV
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