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Tech Law Journal |
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Editor's Notes: TIMOTHY J. ALGER, SBN 160303 Telephone: (213) 229-7000 REX S. HEINKE, SBN 066163 Telephone: (310) 859-7811 Attorneys for Plaintiffs Los Angeles Times,
UNITED STATES DISTRICT COURT
[begin page 2] I. SUMMARY OF ARGUMENT Defendants’ “Emergency” Ex Parte Application should be denied for each of the following separate and independent reasons:
In short, Defendants are using endless discovery demands for irrelevant discovery as an excuse to keep the Court from deciding the fair use issue. Defendants’ request for yet another continuance should be denied. [begin page 3] II. THE DEFENDANTS HAVE NOT MADE THE REQUIRED SHOWING FOR A CONTINUANCE UNDER F.R.C.P. 56(f). The party seeking an extension must show by affidavit or declaration the specific facts that it needs, but does not have, that are “essential to justify the party’s opposition.” F.R.C.P. 56(f). Accord Keebler Co. v. Murray Bakery Products, 866 F.2d 1386 (Fed. Cir. 1989) (generalized statement that “certain information necessary to prepare a response is solely in the possession of moving party” is not sufficient; continuance denied). The Declaration of Brian Buckley does not come close to meeting Defendants’ burden under F.R.C.P. 56(f). Instead, all it asserts, without explanation, is that Defendants’ expert needs data that he has not obtained to complete his "analysis." This is not enough. These deficiencies are particularly telling because Defendants had all last week, and then all weekend, to prepare their “emergency” ex parte application. Nevertheless, Defendants never explain (1) why the data their expert wants is necessary to his analysis, nor (2) why any of this affects the outcome of the single legal question before the Court -- fair use. Indeed, Defendants cannot even identify what it is they think they need that Plaintiffs have not already provided. This lack of specificity is no coincidence. In fact, Plaintiffs have already provided everything they have that is relevant to the issue of fair use. See Section IV, below. Defendants have not -- and cannot -- satisfy their burden under F.R.C.P. 56(f) by relying on vague and unsupported assertions of “need” to justify yet another continuance. III. DEFENDANTS HAVE BEEN -- AND ARE -- ATTEMPTING TO ENDLESSLY DELAY THIS LITIGATION. Defendants have been delaying this case for nearly a year. Defendants’ strategy of demanding numerous, repeated, and last-minute continuances began with the Early Meeting of Counsel last year. For example, Defendants initially requested a continuance [begin page 4] of the Early Meeting of Counsel until November 25, 1998, and then when that day came, wrote Plaintiffs a letter stating that Defendants were not prepared to attend it. Defendants similarly sought numerous and repeated extensions of time to respond to Plaintiffs’ discovery requests, each time claiming that Defendants needed more time to prepare their responses. When Plaintiffs finally did receive Defendants’ responses, they discovered that Defendants had spent two months preparing responses that purported to explain why Defendants were not producing a single document. It was not until April 7, 1999 – more than four months after Defendants’ responses were initially due – that Defendants finally produced their “First Supplemental [Partial] Production,” which were the first documents produced by Defendants. Defendants’ other documents came even later, e.g., Plaintiffs did not receive Defendants’ “Fourth Supplemental Production” until May 28, 1999. Defendants also waited until May 4, 1999 to propound any discovery on Plaintiffs. Thus, Plaintiffs’ responses to Defendants’ first three sets of requests were due only two business days before Friday, June 7, 1999 -- one of the first deadlines for filing cross-motions for summary judgment on fair use. Instead of exploiting that, Plaintiffs agreed they would provide responses on June 25, 1999, and agreed to a continuance of the filing deadline until Friday, July 2, 1999, with the hearing on Monday, August 16, 1999. These agreements are embodied in the two stipulations lodged with the Court on June 4, 1999. Immediately before this July 2, 1999 deadline, Defendants requested yet another continuance – this time on the purported ground that discovery was still outstanding. Attempting to avoid burdening the Court with this dispute, Plaintiffs reluctantly agreed on the condition that this would not interfere with the Monday, August 16, 1999 hearing date. The Court thereafter informed counsel for Plaintiffs that the Court wished to schedule the hearing for September 20, 1999. Defendants then requested a further continuance of the briefing schedule. Plaintiffs reluctantly agreed, since the Court had [begin page 5] continued the hearing date. This agreement is embodied in the July 9, 1999 Stipulation and [Proposed] Order. At that time, Plaintiffs told Defendants that they would oppose any further continuances.Thereafter, counsel for Plaintiffs were informed by the Clerk that the Court wished the parties to submit a revised stipulation that provided a hearing date of September 27, 1999. Counsel for Plaintiffs then submitted to defense counsel the revised stipulation requested by the Court. Astonishingly (but predictably, in view of Defendants’ long history of strategic delay tactics), Defendants refused to return the proposed stipulation, insisting that they still needed even more time. On August 4, 1999, Plaintiffs realized that they would never be able to move this case forward without the assistance of the Court, and requested that the Court set a status conference to resolve the briefing schedule and hearing date for the parties’ cross-motions for summary judgment. At this status conference, the Court continued the hearing date again, at Defendants’ request, and over Plaintiffs’ objection, this time to October 25, 1999. Now Defendants are seeking to continue the hearing date once again, this time to November 24, 1999. This request is baseless. See Sections IV and V, below (discussing Plaintiffs’ extraordinary efforts to produce voluminous raw data to Defendants, even though this data is irrelevant to the fair use issue). Inexplicably, Defendants are requesting a month continuance even though they told Plaintiffs they just needed a one week continuance. Buckley Decl., Exh. H. There is a clear pattern here. Defendants’ repeated demands for more and more continuances will never come to an end unless the Court brings it to an end. Defendants have had months and months to prepare their summary judgment motion, and continuance after continuance. It is time for this case to finally move forward. [begin page 6] IV. PLAINTIFFS HAVE GONE TO EXTRAORDINARY LENGTHS TO RESPOND TO DEFENDANTS’ CEASELESS DISCOVERY REQUESTS, TO AVOID BURDENING THE COURT WITH DISCOVERY DISPUTES. Defendants claim that Plaintiffs’ discovery responses are inadequate. In fact, all of Plaintiffs’ discovery responses were served in a timely manner on Friday, June 25, 1999. Since then, Plaintiffs have voluntarily incurred substantial burden and expense in an effort to negotiate an informal resolution of Defendants’ endless discovery requests, and move this case forward. Yet, Defendants are never satisfied. The voluminous data that Plaintiffs have spent hours of computer, employee, and lawyer time to assemble and produce includes:
[begin page 7] In addition, Plaintiffs cooperated with Defendants in arranging the depositions of Plaintiffs’ employees, Mark Richards and Eric Koefoot, so that Defendants could thoroughly understand what information Plaintiffs had and did not have. The only disputed discovery that Defendants do not have – but that exists -- is two weeks worth of “extended log” raw data, and the only reason Defendants do not have this data already is because Defendants have declined Plaintiffs’ offers to produce it: “[W]e [Plaintiffs] have already told you that WPNI does not even have any extended log raw data for the specific dates in the Fall of 1998 that you requested. In addition, we offered you the same data for both clients for any two week period in August or September 1999, and for some reason you were not interested in that. Moreover, we have repeatedly explained that it is extremely burdensome for our clients to produce extended log raw data that has already been removed from their servers, and we have never understood why you think that raw data from the Fall of 1998 (including after this lawsuit was filed) is any better than raw data now.” See Buckley Decl., Exh. G. In addition, Plaintiffs have repeatedly offered to facilitate production of extended log raw data by a third party copy service, at Defendants’ expense, and Defendants have never pursued this alternative. Indeed, it is only today that we received a letter from Defendants asking about a duplication service. See Exh. A (attached). V. THE REQUESTED DATA IS IRRELEVANT TO THE FAIR USE ISSUE. None of the requested data is relevant to the only issue to be decided on the parties’ respective cross-motions: fair use. Defendants argue that, by posting unauthorized copies of Plaintiffs’ copyrighted articles, they are causing persons to visit Plaintiffs’ respective websites who otherwise would not. On this basis, Defendants argue that the fourth fair use factor favors Defendants because they are allegedly increasing traffic to Plaintiffs’ websites and thus their advertising revenue. Even if Defendants could prove this, their argument ignores long-settled copyright principles. See, e.g., DC [begin page 8] Comics Inc. v. Reel Fantasy, Inc., 698 F.2d 24, 28 (2d Cir. 1982) (rejecting arguments that the fourth fair use factor favored Defendants, and explaining, “Since one of the benefits of ownership of copyrighted material is the right to license its use for a fee, even a speculated increase in DC’s comic book sales as a consequence of [defendant’s] infringement would not call the fair use defense into play as a matter of law. The owner of a copyright is in the best position to balance the prospect of increased sales against revenue from a license.”). Accord Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 569 (1985) (“Any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work . . . . But Congress has not designed, and we see no warrant for judicially imposing, a ‘compulsory license’ “ to copyrighted works.”); Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 81 n.16 (2d Cir. 1997) (“Even if the unauthorized use of plaintiff’s work in the televised program might increase poster sales, that would not preclude her entitlement to a licensing fee.”); Storm Impact, Inc. v. Software of the Month Club, 13 F.Supp. 2d 782, 790 (N.D. Ill. 1998) (“This argument that increased distribution of an author’s work is a benefit to the author has been rejected by the Supreme Court.”).It is as if Defendants had stolen a copyrighted movie, shown it to a paying audience of influential directors and producers, and then tried to deny liability for copyright infringement by arguing that the unauthorized showing resulted in favorable publicity for the copyright owner. It is for Plaintiffs, not Defendants, to decide when and how to exploit their copyrighted works. Thus, the data that Defendants claim they still need is not even relevant to their fair use motion. VI. DEFENDANTS SHOULD NOT BE REWARDED FOR VIOLATING THE COURT’S EXPRESS ORDER. Defendants failed to comply with the Court’s express order that they file their cross-motion for summary judgment on Monday, October 4, 1999. This violation should [begin page 9] not relieve Defendants of their obligation to file an opposition to Plaintiffs’ motion on Monday, October 11, 1999, as required by this Court’s Order, and the Local Rules.If Defendants really want the two weeks of extended log data from the Los Angeles Times (which is the only data they do not have), they only need to call us to agree to an appropriate third party copy service. If Defendants really want this data, this is the easy solution to this issue, which we have offered many times before. If after reviewing this data Defendants conclude that there is something worth bringing to the Court’s attention, Plaintiffs have no objection to Defendants’ filing a supplemental brief on this point, so long as Plaintiffs have a reasonable opportunity to respond. Plaintiffs have offered this simple alternative before, but Defendants have refused to accept it. It is not hard to guess the real reason that Defendants are refusing to consider this easy and obvious solution: Despite numerous continuances, Defendants are still not ready to file their fair use motion. They may never be. Copyright Tech Law Journal.
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