The Authors Guild, Inc. et al v. Hathitrust et al

Filing 171

REPLY MEMORANDUM OF LAW in Support re: 163 MOTION for Attorney Fees of Defendant Intervenors.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel)

Robert J. Bernstein (RB 4230)
THE LAW OFFICE OF
ROBERT J. BERNSTEIN
380 Lexington Avenue, 17th Floor
New York, NY 10168
Telephone: [phone]
Facsimile: [phone]

Daniel F. Goldstein (admitted pro hac vice)
Jessica P. Weber (admitted pro hac vice)
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street
Suite 1700
Baltimore, Maryland 21202
Telephone: [phone]
Facsimile: 410-385-0869
[e-mail]
[e-mail]

Peter Jaszi (admitted pro hac vice)
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483
[e-mail]

Counsel for Defendant Intervenors
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

THE AUTHORS GUILD, INC., et al.,
Plaintiffs,

Case No. 11-cv-6351(HB)

v.
HATHITRUST, et al.,
Defendants.

REPLY IN SUPPORT OF DEFENDANT INTERVENORS’
MOTION FOR COSTS AND ATTORNEYS’ FEES
To protect their distinct and substantial interest in accessing the HathiTrust Digital
Library (“HDL”), the National Federation of the Blind, Georgina Kleege, Blair Seidlitz, and
Courtney Wheeler (collectively “NFB”) sought to intervene in this case. Had plaintiffs obtained

their requested relief (impoundment and sequestration of the HDL), blind students and scholars
would have lost their only means of equal access to a comprehensive collection of university
library texts—access that was already in place at the University of Michigan and that was on the
near horizon at other HDL institutions. Plaintiffs did not contest NFB’s grounds for intervention.
Upon intervening, NFB became a party to the litigation. And upon the Court’s issuance of its
Opinion & Order on October 10, 2012, NFB secured a clear ruling that creating a digital
collection for use by the blind is a fair use and that educational entities with such collections
may, under the Chafee Amendment, choose to lawfully distribute these electronic texts to all
blind Americans. Accordingly, NFB is now a prevailing party, fully entitled to an award of
attorneys’ fees and costs under 17 U.S.C. § 505.
Plaintiffs incorrectly assert that NFB is not a prevailing party by virtue of its status as an
intervenor. Plaintiffs offer no legal authority, however, supporting their sweeping proposition
that how a party enters a case bears on whether it can be deemed a prevailing party entitled to
attorneys’ fees. To the contrary, in a variety of fee-shifting cases, courts routinely award fees to
intervenors who have prevailed. 1 In Wilder v. Bernstein, for example, the United States Court of
Appeals for the Second Circuit held that intervening parties in civil rights cases are entitled to
attorneys’ fees if they prevail in the litigation by vindicating their rights. 2 Similarly, in awarding
fees to the intervening plaintiffs in Shaw v. Hunt, the United States Court of Appeals for the
Fourth Circuit noted that “persons within the generic category of plaintiff-intervenors have often

1

See New Jersey v. E.P.A., 663 F. 3d 1279, 1280-82 (D.C. Cir. 2011) (holding that intervenor
party was entitled to an award of attorneys’ fees as the prevailing party); King v. Illinois State
Bd. of Elections, 410 F.3d 404, 421 (7th Cir. 2005) (same); Shaw v. Hunt, 154 F.3d 161, 164 (4th
Cir. 1998) (same); Hastert v. Illinois State Bd. of Election Comm’rs, 28 F.3d 1430, 1441 (7th
Cir. 1993) (same); Wilder v. Bernstein, 965 F.2d 1196, 1204 (2d Cir. 1992) (en banc) (same);
Seattle Sch. Dist. No. 1 v. Washington, 633 F.2d 1338, 1350 (9th Cir. 1980) (same).
2
965 F.2d at 1204.
2

been found by courts to fit within the rubric ‘prevailing party’ for fees purposes.” 3 The Fourth
Circuit explained that intervenors, both permissive and as of right, “appear in the Federal Rules
under the general heading of ‘Parties,’ see FED. R. CIV. P. 24(a) & (b), and the case law treats
them as such.” 4 The Supreme Court has noted that “intervenors are considered parties” as well. 5
For this reason, when the Second Circuit considered whether intervenor plaintiffs in a copyright
case were entitled to an award of attorneys’ fees, the fact that the plaintiffs had entered the case
through intervention did not enter into the Second Circuit’s analysis at all. 6 Indeed, 17 U.S.C. §
505 draws no distinction between the types of parties that may be awarded fees upon prevailing
in a copyright case.
Plaintiffs also rely on case law explaining that a party only prevails when there has been a
“judicially sanctioned change in the legal relationship of the parties.” 7 Plaintiffs blithely
conclude that “because there was no judicially sanctioned change in the legal position of the
parties,” NFB is not a prevailing party. 8 Plaintiffs’ conclusion is both absurd and wholly
inconsistent with the Court’s Opinion & Order. Just as the University Defendants are prevailing
parties, so, too, were intervenors. Defendants who win on the merits have prevailed in that
questions as to plaintiffs’ entitlement to relief are resolved in favor of defendants. Any
alternative understanding of what it means to prevail would result in defendants never being
entitled to attorneys’ fees.

3

154 F.3d at 164.
Id. at 165.
5
Diamond v. Charles, 476 U.S. 54, 68 (1986)
6
See Matthew Bender & Co., Inc. v. West Publishing Co., No. 01-7850, 2002 WL 1583912 (2d
Cir. July 17, 2002) (Summary Order).
7
Pls.’ Opp’n to Defs.’ Fee Mot. at 20 (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001)).
8
Id.
4

3

Because this Court has held that “[t]he provision of equal access to copyrighted
information for print-disabled individuals is mandated by the ADA and the Rehabilitation Act of
1976” and that “[t]he provision of access to previously published non-dramatic literary works
within the HDL fits squarely within the Chafee Amendment,” there has been a judicially
sanctioned change in the legal relationship between plaintiffs and NFB. 9 Prior to the Court’s
order, the legality of blind individuals’ access to the HDL was in question. Now, this Court has
established that blind individuals’ access to the HDL is protected under the ADA, the
Rehabilitation Act, fair use, and the Chafee Amendment and that plaintiffs are not entitled to
their requested relief. The change in the legal relationship between NFB and plaintiffs could not
be clearer.
The rationale behind awarding fees and costs to prevailing defendants in copyright cases
holds true for NFB in this case as well. As the Supreme Court has explained, awarding
attorneys’ fees to prevailing defendants encourages “defendants who seek to advance a variety of
meritorious copyright defenses” to litigate them, and in doing so, help clarify copyright law,
advancing its “purpose of enriching the general public through access to creative works.” 10 In
the present case, NFB’s defense greatly advanced the public interest by clarifying the interaction
between civil rights and copyright law and by ensuring that the revolutionary promise of the
HDL is available to blind individuals.
Contrary to plaintiffs’ assertions otherwise, NFB’s efforts in this litigation were not
duplicative. Only NFB argued that blind individuals’ access to the HDL was legally protected
9

Op. at 22.
Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994); see also Peter Jaszi, 505 And All That—
The Defendant’s Dilemma, 55 Law & Contemp. Probs. 107, 111-12 (1992) (arguing that same
standard for awarding fees should be applied to both plaintiffs and defendants in copyright cases
because meritorious copyright defenses advance the public interest by demarcating the contours
of copyright law).

10

4

under the ADA and Rehabilitation Act. Furthermore, while the Library Defendants only
addressed the Chafee Amendment briefly in their reply memorandum in support of summary
judgment, NFB fully briefed the Chafee Amendment argument throughout this litigation. 11
Moreover, this Court’s Opinion & Order relied in part upon evidence presented exclusively in
NFB’s motion for summary judgment. 12
As a full party in this case, NFB could not avoid addressing all the issues interjected by
plaintiffs, because they affected the organization’s interests. This included assertions from
plaintiffs that only can be described as “objectively unreasonable,” 13 including plaintiffs’
assertions, roundly rejected by this Court, that Sec. 108 of the Copyright Act somehow restricts
the operation of fair use in the context of library reproduction, 14 and that Sec. 121 of the Act
does the same with respect to the operation of fair use in connection with the provision of
services to the print-disabled. 15 Likewise, NFB was required to address plaintiffs’ failure to
acknowledge or respond to a decade’s worth of case law on “transformative” fair use from this
Circuit (and elsewhere) in a timely fashion, although these were precedents that this Court
ultimately determined had significant implications for the application of the doctrine to services
for the print-disabled. Had Plaintiffs avoided these unnecessary detours, they could have saved
the time of both defendants and the Court.

11

Compare Defs.’ Reply in Supp. of Summ. J. at 8-10, with NFB’s Mem. in Supp. of Mot. to
Intervene at 14-16; NFB’s Opp’n to Pls.’ Mot. for Partial J. on Pleadings at 8-9; NFB’s Mem. in
Supp. of Summ. J. at 12-14; NFB’s Opp’n to Pls.’ Summ. J. Mot. at 7-8; NFB’s Reply in Supp.
of Summ. J. at 2-3, 6-10.
12
See Op. at 3, 18, 21, 23 (relying on Declaration of George Kerscher); Op. at 22 (quoting
Declaration of Marc Maurer).
13
Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (3d Cir. 1966), cited with approval in
Fogerty v. Fantasy, Inc., 510 U.S. 510, 517, n.19 (1994).
14
See NFB’s Opp’n to Pls.’ Mot for Partial J. on Pleadings.
15
See NFB’s Reply in Supp. of Summ. J. at 2-3.
5

Plaintiffs mount two attacks on the amount of hours billed by NFB in this case. First,
they complain that Peter Jaszi engaged in block billing. Yet “the practice of block billing is not
prohibited in this Circuit.” 16 As this Court has explained, “[i]t is not necessary to know the exact
number of minutes spent nor the precise activity to which each hour was devoted nor the specific
attainments of each attorney.” 17 Instead, this Court should “look[] at the big picture to see if the
total time expended for each portion of this case was reasonable.” 18 Nevertheless, if the Court
deems Mr. Jaszi’s billing too vague, it should reduce the hours that Ms. Jaszi has block billed by
some percentage, rather than extract these hours from the fee award entirely. 19
Second, plaintiffs have focused on what NFB did not do in this case. They have not,
however, addressed whether the time NFB expended on motions practice was reasonable. To
attack the reasonableness of a fee application, an opponent must provide specific objections and
offer some proof as to the unreasonableness of the claim. 20 Here, plaintiffs have raised only the
most general of objections and point to no entry or collection of entries for any activity as
excessive and provide neither fact nor reason in support. 21

16

Rodriguez ex rel. Kelly v. McLoughlin, 84 F. Supp. 2d 417, 425 (S.D.N.Y. 1999).
United States Football League v. Nat’l Football League, 704 F. Supp. 474, 477 (S.D.N.Y.
1989) (internal quotation marks omitted); see also Hensley v. Eckerhart, 461 U.S. 424, 437 n.12
(1983) (“Plaintiff’s counsel, of course, is not required to record in great detail how each minute
of his time was expended.”).
18
Burr v. Sobol, 748 F. Supp. 97, 100 (S.D.N.Y. 1990).
19
See, e.g., Ryan v. Allied Interstate, Inc., -- F. Supp. 2d --, No. 12-0526, 2012 WL 3217853, at
*7 (S.D.N.Y. Aug. 9, 2012) (reducing, rather than eliminating, vague time entries, because “the
Court may reduce the fees requested for billing entries that are vague and do not sufficiently
demonstrate what counsel did”); United States Football League, 704 F. Supp. at 477 (reducing
fee award by 10% in light of vague time entries).
20
See ACLU of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (noting that “[t]hose
opposing fee applications have obligations, too” and that “objections and proof from fee
opponents concerning hours that should be excluded must be specific and reasonably precise”)
(internal quotation marks omitted).
21
Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984) (concluding that petitioner waived her right to
challenge the number of hours billed by respondent’s counsel because she “failed to submit to
17

6

On the general issue of entitlement to fees in this case, the NFB incorporates by reference
the arguments and legal authority cited by the University Defendants in both their Reply and
Memorandum of Law in Support of Defendants’ Motion for Costs and Attorneys’ Fees. For
these reasons and the reasons set forth above, the NFB respectfully requests that the Court grant
its Motion for Costs and Attorneys’ Fees.
DATED: December 6, 2012

Respectfully Submitted,

/s/ Daniel F. Goldstein
Daniel F. Goldstein, Pro Hac Vice
Jessica P. Weber, Pro Hac Vice
BROWN GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street, Ste. 1700
Baltimore, Maryland 21202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Robert J. Bernstein (RB 4230)
THE LAW OFFICE OF
ROBERT J. BERNSTEIN
380 Lexington Avenue, 17th Floor
New York, NY 10168
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Peter Jaszi
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483
[e-mail]

the District Court any evidence challenging the accuracy and reasonableness of the hours
charged, see Hensley v. Eckerhart, 461 U.S. 424, 437, and n.12 (1983), or the facts asserted in
the affidavits submitted by respondent’s counsel”).
7