Ventura Att Fees

Case 2:11-cv-05912-SVW-FMO Document 121 Filed 08/26/13 Page 1 of 31 Page ID #:3228
1 Peter Afrasiabi, Esq. (Bar No. 193336)

John Tehranian, Esq. (Bar No. 211616)
2 Christopher W. Arledge (Bar No. 200767)
Imran F. Vakil (Bar No. 248859)
3 ONE LLP
4000 MacArthur Blvd.
4 West Tower, Suite 1100
Newport Beach, CA 92660
5 Telephone: (949) 502-2870
Facsimile: (949) 258-5081
6
Jessica M. Pena, Esq. (AZ Bar No. 024995)
7 Pro Hac Vice
2010 North Camino Serna
8 Tucson, AZ 85715
Telephone: (520) 290-0910, Ext. 1103
9 Facsimile: (520) 258-4045
10 Attorneys for Plaintiff,
Ventura Content Ltd.
11
12 UNITED STATES DISTRICT COURT
13 CENTRAL DISTRICT OF CALIFORNIA
14 VENTURA CONTENT, LTD., an Anguilla Case No. CV11-05912 SVW (FMOx)
corporation, Hon. Stephen V. Wilson
15
Plaintiff, PLAINTIFF VENTURA CONTENT,
16 LTD.’S MEMORANDUM IN
v. OPPOSITION TO DEFENDANTS’
17 MOTION FOR AN AWARD OF
MOTHERLESS, INC., a New York ATTORNEYS’ FEES AND COSTS
18 corporation; JOSHUA “JOSH” LANGE, an
individual; and DOES 1-20, inclusive,
19 Date: September 16, 2013
Defendants. Time: 1:30 p.m.
20 Place: Courtroom 6 (2nd Floor)
21
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24
25
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27
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OPPOSITION TO DEFENDANTS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS

1 TABLE OF CONTENTS
2 I. INTRODUCTION ........................................................................................................1
3 II. PROCEDURALLY, DEFENDANTS’ FEES MOTION SHOULD BE DENIED......1
4 A. Defendants Willfully Failed to Comply with Local Rule 7-3 and 54-12. .........1
B. Defendants' Motion for Fees Was Also Not Timely Filed. ...............................2
5
III. THE PURPOSE OF THE COPYRIGHT ACT AND APPLICATION OF THE
6 FOGERTY FACTORS OVERWHELMINGLY CAUTION AGAINST FEES. ........3
7 A. The Degree of Success Obtained: Since Plaintiff Prevailed on Direct
Infringement and Injunctive Relief, Defendants’ Success Was Mixed. ............4
8 B. Frivolousness: There Was Nothing Remotely Frivolous about Plaintiff’s
9 Infringement Claims, as They Were Objectively Reasonable. ..........................6
1. Defendants Thought Plaintiff's claims were reasonable ..........................7
10 2. Right and Ability to Control.....................................................................8
11 3. Reasonable Termination Policy ...............................................................8
4. Plaintiff’s Claim Was Eminently Reasonable ..........................................9
12 C. Motivation: Plaintiff’s Copyright Claims Were Properly Motivated by a
13 Legitimate Need to Protect Its Valuable Rights Against Infringement. ..........10
D. Objective Reasonableness: Plaintiff’s Arguments Were Reasonable. ............12
14 E. Compensation and Deterrence: Policy Considerations Weigh Against Fees in
15 This Case as Plaintiff’s Claims Involved Complex and Novel Issues Whose
Resolution Benefits the Copyright Regime......................................................14
16
IV. THE FEE AMOUNTS ARE EXCESSIVE AND NOT REASONABLE. ................16
17 A. Defendants Vastly Exceed Expenditures for Similar Cases. ...........................16
18 B. Defendants’ Requested Fees Vastly Exceed Plaintiff’s Billing. ......................18
C. Defendants Cannot Meet Their Burden to Justify Their Time Spent as
19 Reasonable........................................................................................................18
20 1. The Time Spent on the MSJ Is Not Reasonable ....................................20
2. The Time Spent on Experts Is Not Reasonable. ....................................21
21 3. The Time Spent on Discovery-Depositions Is Not Reasonable. ............21
22 4. The Time Spent on the Fees Motion Is Not Reasonable........................22
5. There Is No Basis for Fees for Defendants’ New York Lawyer............23
23 D. In the Unlikely Event That This Court Grants Defendants’ Motion for Fees, a
24 Dramatic Deduction from Defendant’s Request Is Warranted. .......................23
E. Defendants’ Fees Request Is Deficient Because There is No Proof That
25 Defendants Have Ever Paid the Allegedly Invoiced Fees. ..............................23
26 F. Defendants Fail to Meet Their Burden to Apportion Fees...............................24
27 V. CONCLUSION...........................................................................................................25
28
i
1 TABLE OF AUTHORITIES
2
CASES
3
4 A&M Records, Inc. v. Napster, Inc.,
5 239 F.3d 104, 1024 (9th Cir. 2001) ..................................................................................... 8
6 Alcatel-Lucent USA Inc. v. Dugdale Communications, Inc.,
7 2009 WL 3346784 (C.D. Cal. Oct. 13, 2009)..................................................................... 2
8 Apple, Inc. v. Samsung Electronics Co., Ltd.,
9 2012 WL 5451411, at * (N.D. Cal. Nov. 7, 2012) ........................................................... 17
10 Cairns v. Franklin Mint Co.,
11 292 F.3d 1139, 1159 (9th Cir. 2002) ................................................................................. 18
12 Crescent Publ’g Group, Inc. v. Playboy Enters., Inc.,
13 246 F.3d 142, 150 (2d Cir. 2001) ............................................................................... 23, 24
14 Designing Health, Inc. v. Erasmus,
15 2002 WL 34536668 ............................................................................................................ 2
16 Entm’t Research Group, Inc. v. Genesis Creative Group, Inc.,
17 122 F.3d 1211, 1230 (9th Cir. 1997) ........................................................................... 12, 25
18 Ets-Hokin v. Skyy Spirits, Inc.,
19 323 F.3d 763, 766 (9th Cir. 2003) ....................................................................................... 4
20 Fantasy, Inc. v. Fogerty,
21 94 F.3d 553, 559 (9th Cir. 1996) ......................................................................................... 4
22 Fogerty v. Fantasy, Inc.,
23 510 U.S. 517.................................................................................................................. 3, 14
24 Fogerty v. MGM Group Holdings Corp, Inc.,
25 379 F.3d 348, 357 (6th Cir. 2004) ..................................................................................... 14
26 Fonovisa, Inc. v. Cherry Auction, Inc.,
27 76 F.3d 259, 262-63 (9th Cir. 1996) .................................................................................... 8
28
ii
1 GMA Accessories v., Inc. v. Olivia Miller, Inc.,

2 139 Fed. Appx. 301 (2d Cir. 2005) ................................................................................... 23
3 Halicki Films, LLC v. Sanderson Sales and Marketing,
4 547 F.3d 1213, 1231 (9th Cir. 2008) ........................................................................... 10, 11
5 Harris Custom Builders Inc. v. Hoffmeyer,
6 140 F.3d 728, 730-31 (7th Cir. 1998) ................................................................................ 14
7 Harris v. Emus Records Corp.,
8 734 F2d 1329 (9th Cir. 1984)............................................................................................. 23
9 Hensley v. Eckerhart,
10 461 U.S. 424, 437 (1983) ........................................................................................... passim
11 Hustler Magazine Inc. v. Moral Majority Inc.,
12 796 F.2d 1148, 1157 (9th Cir. 1986) ................................................................................. 16
13 International Korwin Corp. v. Kowalczyk,
14 665 F. Supp. 652 (N.D. Ill. 1987) ..................................................................................... 21
15 Kyle v. Campbell Soup Co.,
16 28 F.3d 928, 929-31 (9th Cir. 1994) .................................................................................... 3
17 L.A. Printex Industries, Inc. v. William Carter Co.,
18 2010 WL 4916634, at *8 (C.D. Cal. Dec. 1, 2010) .......................................................... 22
19 Lotus Dev. Corp. v. Borland Int’l, Inc.,
20 140 F.3d. 70, 75 (1st Cir. 1998) ......................................................................................... 16
21 Matthew Bender & Co., Inc. v. West Pub. Co.,
22 240 F.3d 116, 122 (2d Cir. 2011) ................................................................................. 4, 14
23 McCulloch v.Albert E. Price, Inc.,
24 823 F.2d 316 (9th Cir. 1987).............................................................................................. 14
25 Mitek Holdings, Inc. v. Arce Eng’g Co.,
26 198 F.3d 840, 842-43 (11th Cir. 1999) .............................................................................. 16
27 Mitroff v. Xomox Corp.,
28 631 F. Supp. 25, 28 (S.D. Ohio 1985) .............................................................................. 18
iii
1 Modular Arts, Inc. v. Interlam Corp,

2 2009 WL 151336, at *2 (W.D. Wash. 2009) .................................................................... 11
3 Montgomery v. Noga,
4 168 F.3d 1282, 1304 (11th Cir. 1999) .............................................................................. 23
5 Oviatt By and Through Waugh v. Pearce,
6 954 F.2d 1470, 1482-83 (9th Cir. 1992) ............................................................................ 22
7 Perfect 10, Inc. v. CCBill LLC,
8 488 F.3d 1102, 1120 (9th Cir. 2007) ................................................................................. 15
9 Perfect 10, Inc. v. Visa Int’l Serv. Ass’n,
10 2005 WL 2007932, *5 (N.D. Cal. Aug. 12, 2005), aff’d on other grounds, 494 F.3d 788
11 (9th Cir. 2007), cert. denied, 553 U.S. 1079 (2008) .......................................................... 11
12 Reed v. Peterson,
13 2005 WL 1522187, at *7 (N.D. Cal. June 27, 2005) ........................................................ 11
14 Robinson v. Lopez,
15 2003 WL 23162906, *3, 69 U.S.P.Q. 2d 1241, 1243 (C.D. Cal. Nov 24, 2003) ............. 24
16 Seltzer v. Green Day,
17 __ F.3d __ 2013 WL 4007803 (9th Cir. Aug. 7, 2013) ....................................... 6, 9, 10, 13
18 Singer v. Live Nation Worldwide, Inc.,
19 2012 WL 123146, *2 (C.D. Cal. Jan. 13, 2012) ................................................................. 2
20 Smith v. Jackson,
21 84 F.3d 1213, 1221 (9th. Cir. 1996) .................................................................................... 6
22 SOFA Entm’t, Inc. v. Dodger Prods., Inc.,
23 709 F.3d 1273, 1280 (9th Cir. 2013) ............................................................................. 6, 10
24 Suberbalife, Int’l v. Powerpay,
25 2008 WL 4559752 (C.D. Cal. 2008) .................................................................................. 2
26 T-Peg v. Vermont Timber Works, Inc.,
27 669 F.3d 59 (1st Cir. 2012) ................................................................................................ 23
28
iv
1 Twentieth Century Music Corp. v. Aiken,

2 422 U.S. 151 (1975) ............................................................................................................ 4
3 UMG Recordings, Inc. v. Shelter Capital Partners LLC,
4 718 F.3d 1006, 1026-27 (9th Cir. 2013) .............................................................................. 8
5 UMG Recordings, Inc. v. Veoh Networks Inc.,
6 2010 WL 255584, at *2 (C.D. Cal. Jan. 15, 2010) ........................................................... 15
7 View Engineering, Inc. v. Robotic Vision Systems, Inc.,
8 208 F.3d 981, 987 (Fed. Cir. 2000) .................................................................................. 17
9 Warner Bros. Inc. v. Dae Rim Trading, Inc.,
10 695 F. Supp. 100, 110 (S.D.N.Y. 1988) ........................................................................... 24
11
STATUTES
12
13 17 U.S.C. § 505 ................................................................................................................... 3, 4
14 17 U.S.C. § 512(i)(1)(A) ......................................................................................................... 9
15 18 U.S.C. § 2257 ................................................................................................................... 12
16 OTHER AUTHORITIES
17
5-14 Nimmer on Copyright, § 14.10[C] ................................................................................ 23
18
5-14 Nimmer on Copyright, § 14.10[D][1] ........................................................................... 15
19
20 RULES
21 Local Rule 54-12 ................................................................................................................. 1, 2
22 Local Rule 7-3 ..................................................................................................................... 1, 2
23
24
25
26
27
28
v
1 I. INTRODUCTION
2 Defendants’ procedurally and substantively deficient motion for fees should be
3 denied in full. Besides failing to conform to the basic meet and confer and timing
4 requirements of this Court, the motion fails out of hand because the five Fogerty factors
5 that govern the exercise of judicial discretion to award fees under Section 505 of the
6 Copyright Act strongly and uniformly militate against the award of fees.
7 II. PROCEDURALLY, DEFENDANTS’ FEES MOTION SHOULD BE DENIED.
8 A. Defendants Willfully Failed to Comply with Local Rule 7-3 and 54-12.
9 Defendants’ failure to comply with the critical meet and confer requirements of this
10 District alone warrants denial of its motion. Local Rule 7-3 mandates a pre-filing meet and
11 confer, which “shall take place at least seven (7) days prior to the last day for filing the
12 motion.” L.R. 7-3. In turn, Local Rule 54-12 provides that all fees motions are subject to
13 Local Rule 7-3. However, counsel for Defendants ignored these important rules.1
14 Counsel’s purported attempt to meet and confer on the day of the filing of the motion
15 does not cure his failure to do so under the requirements of Local Rule 7-3, which dictates
16 that the meet and confer occur seven (7) days prior to the filing of the motion, not later.
17 And it is not cured by counsel’s hollow provision of a hearing date seven days later than
18 intended so that counsel can meet and confer in the intervening time. Indeed, meeting and
19 conferring after a motion is completely written and on the day that it is actually going to be
20
21 1
The meet and confer requirements of this District are not optional. Furthermore, they do not
22 constitute some sort of empty procedural formality. Rather, they play a vital role for both this
Court and its litigants in ensuring the fair and orderly procession of civil disputes. For the Court,
23 the rule helps alleviate unwarranted and unnecessary motion practice (or claims made therein) and
24 it enables the court to more efficiently manage its docket. For litigants, it provides critical notice
about an upcoming motion so that the non-moving party can begin to prepare its arguments in
25 anticipation thereof (an especially important fact given the narrow time frame for filing an
opposition to a motion and the fact that a non-moving party only gets one formal opportunity to
26 make its arguments before a court while a moving party gets both a moving brief and a reply
27 brief). It also enables them to confer to eliminate overreaching requests and seek resolution of
issues without incurring the expenditure of attorneys’ fees and court time.
28
1
1 filed is, at the very best, disingenuous and, more pointedly, makes a mockery of the meet
2 and confer requirement; if permitted, everyone could file a motion an extra 7 days out and
3 then meet and confer post-filing. And it makes little sense to meet and confer on a motion
4 for fees after you have filed that motion for fees and, to add insult to injury, attempted to
5 charge the opposing party $36,746.00 for its preparation (Richman Decl., ¶35, Item No. 29
6 [Dkt. #113-1])—particularly where Defense Counsel’s billing records indicate that he
7 began working on Defendants’ fees motion at least as early as July 7, 2013—a full month
8 before it was filed. (Richman Decl., Exhibit 24, page 2 [Dkt. #113-3]). During the full
9 month, when counsel claims to have spent 99.6 hours on the fees motion, none of that time
10 was devoted to meeting and conferring, despite lead counsel having litigated for thirty-six
11 years in federal court.
12 The meet and confer requirements of this District are mandatory. Courts do not
13 excuse the blatant failure by counsel to comply with the requirements of Local Rule 7-3
14 and, instead, reject such infirm motions out of hand.2 Denial is particularly appropriate
15 here, where Defendants not only failed to conduct a meet and confer but did not even
16 mention that they were bringing such a motion until filing day.
17 B. Defendants’ Motion for Fees Was Also Not Timely Filed.
18 As Local Rule 54-12 provides, a motion for attorneys’ fees “shall be served and filed
19 within fourteen (14) days after the entry of judgment or other final order, unless otherwise
20 ordered by the Court.” When this Court granted summary judgment for Defendants on the
21
22
2
See, e.g., Singer v. Live Nation Worldwide, Inc., 2012 WL 123146, *2 (C.D. Cal. Jan. 13, 2012)
23 (“the motion is DENIED for failure to comply with Local Rule 7–3”); Suberbalife, Int’l v.
24 Powerpay, 2008 WL 4559752 (C.D. Cal. 2008) (“absent any evidence that a party attempted to
meet and confer in good faith, this Court is unwilling to excuse noncompliance with the Local
25 Rules”); Alcatel-Lucent USA Inc. v. Dugdale Communications, Inc., 2009 WL 3346784 (C.D. Cal.
Oct. 13, 2009) (“The meet and confer requirements of Local Rule 7-3 are in place for a reason,
26
and counsel is warned that nothing short of strict compliance with the local rules will be expected
27 in this Court. Thus, the motion is also denied for failure to comply with Local Rule 7-3.”);
Designing Health, Inc. v. Erasmus, 2002 WL 34536668 (striking motions and related papers for
28 failure to comply with the meet-and-confer requirements of Local Rule 7-3).
2
1 issue of the DMCA safe harbor on July 3, 2013, with the clerk entering the order on the
2 same day, it expressly dismissed all of plaintiff’s copyright claims in their entirety with
3 prejudice. Order Re Motion for Partial Summary Judgment [Dkt. #105] at 24 (“the Court
4 GRANTS Defendants’ motion for partial summary judgment as to Plaintiff’s copyright
5 claims, and DISMISSES those claims WITH PREJUDICE.”). Furthermore, the same order
6 unequivocally announced the Court’s decision to decline to exercise supplement
7 jurisdiction over the remaining claims in the case. Dkt. #105 at 25 (“Thus, the Court
8 declines to exercise supplemental jurisdiction over these claims.”). With the copyright
9 claims dismissed with prejudice and the court declining jurisdiction over any remaining
10 claims, the case was over in any meaningful way3 and the summary judgment order
11 represented the entry of a final (appealable) order. As such, Defendants had 14 days from
12 July 3, 2013 to bring their motion. But Defendants did not file the instant motion until
13 August 8—more than 22 days late. Where—as here—there is no excusable neglect for
14 Defendants’ untimely filing of their fees motion, courts routinely deny the motion. See,
15 e.g., Kyle v. Campbell Soup Co., 28 F.3d 928, 929-31 (9th Cir. 1994) (vacating an attorneys’
16 fees award on the grounds that the motion was not timely filed and served and the moving
17 party had failed to prove that the missed deadline was the product of excusable neglect).
18 III. THE PURPOSE OF THE COPYRIGHT ACT AND APPLICATION OF THE
19 FOGERTY FACTORS OVERWHELMINGLY CAUTION AGAINST FEES.
20 The grant of fees is discretionary, not mandatory. See 17 U.S.C. § 505 (a court “may
21 . . . award a reasonable attorney’s fees to the prevailing party) (emphasis added); Fogerty v.
22 Fantasy, Inc., 510 U.S. 517, 533-34 (1994) (“[A]ttorneys' fees are to be awarded to
23 prevailing parties only as a matter of the court's discretion.”). Moreover, “[t]he burden of
24 establishing entitlement to an attorney’s fees award lies solely with the claimant.” Hensley
25 v. Eckerhart, 461 U.S. 424, 437 (1983). The five Fogerty factors (referred to as the
26
27 3
The court did provide Plaintiff the option to exhume the case within twenty days by filing
28 demonstrating diversity jurisdiction, but the case was, for all intents and purposes, closed on July
3, 2013. And Plaintiff declined the opportunity to exhume the Section 17200 claim.
3
Case 2:11-cv-05912-SVW-FMO Document 121 Filed 08/26/13 Page 10 of 31 Page ID
#:3237
1 Jackson factors by Defendants)—degree of success, frivolousness, motivation, objective

2 reasonableness and policy considerations—guide a trial court’s discretionary determination
3 under § 505 to award fees to a prevailing party. However, contrary to Defendants’
4 assertions, the factors overwhelmingly caution against an award of fees in this suit.
5 Moreover, the Fogerty factors are non-exclusive and, above all, “the pivotal
6 criterion” guiding a court’s decision should be whether a court’s grant of fees would be
7 faithful “to the purposes of the Copyright Act.” Fantasy, Inc. v. Fogerty, 94 F.3d 553, 559
8 (9th Cir. 1996). Since the Copyright Act’s “ultimate aim is . . . to stimulate artistic
9 creativity for the general public good,” Twentieth Century Music Corp. v. Aiken, 422 U.S.
10 151 (1975), “the imposition of a fee award against a copyright holder with an objectively
11 reasonable litigation position will generally not promote the purposes of the Copyright
12 Act.” Matthew Bender & Co., Inc. v. West Pub. Co., 240 F.3d 116, 122 (2d Cir. 2011).
13 A. The Degree of Success Obtained: Since Plaintiff Prevailed on Direct
14 Infringement and Injunctive Relief, Defendants’ Success Was Mixed.
15 Defendants admittedly prevailed in some aspects of this case, specifically application
16 of the DMCA affirmative defense. But while Defendants claim that mere success on the
17 merits of a claim is enough to warrant award of fees in a copyright infringement suit, that is
18 simply not the case. See Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003)
19 (affirming a denial of a motion for fees under section 505 on the grounds that “[t]he only
20 factor to weigh in [defendant’s] favor is the degree of success obtained”). This is
21 especially true where—as here—the other Fogerty factors caution against fees and where a
22 grant of fees would stymie, rather than further, the purpose of the Copyright Act. And it is
23 particularly so where—as here—Plaintiff prevailed in several key areas of the case.
24 Indeed, while Defendants may have prevailed on their affirmative defense, they did
25 not prevail on other critical issues of liability and injunctive relief in this case. That is, this
26 Court held that Plaintiff was the owner of the thirty-three copyrighted works at question in
27 the suit, that “Defendants infringed upon Plaintiff’s exclusive right to ‘display’ said works”
28 and, all told, that Plaintiff had made out a prima facie case of direct copyright infringement
4
#:3238
1 against Defendant. Dkt. #105 at 5. The grant of summary judgment of direct infringement
2 to Plaintiff is a finding in Plaintiff’s favor—one that Defendants opposed and one that
3 Defendants have cross-appealed. See Notice of Appeal to 9th Circuit by Defendants [Dkt.
4 #110]. That very cross-appeal begs the question of how Defendants can contend they
5 completely prevailed, for those who win outright do not need to appeal anything.
6 Furthermore, while Plaintiff could not receive damages because of the safe harbor,
7 the Court held that Plaintiff was entitled to injunctive relief as set forth in Section 512(j) of
8 the Copyright Act because of its victory on the issue of direct infringement. Dkt. #105 at
9 23. As such, Plaintiff was granted the right to force the removal of documented infringing
10 materials from the Defendants’ website. Id. Indeed, as a direct result of the lawsuit,
11 Defendants have removed such works—something the Court has expressly noted. Id.
12 Injunctive relief was one of the key remedies that Plaintiff requested in its Complaint and,
13 consequently, one of the central issues in the case. See Complaint [Dkt. #1] at 14-16. As
14 such, the degree of Defendants’ success is far more mixed and equivocal than Defendants’
15 brief cares to admit, a fact that strongly cautions against an award of fees.
16 And it was not just the availability of formal injunctive relief that Plaintiff secured as
17 a result of the suit. Termination of repeat infringer accounts is one of the very bedrocks of
18 the DMCA and it was a key goal of the litigation for Plaintiff so that it could negate the
19 ability of the most egregious infringers on Defendants’ website to continue in their wanton
20 violation of Plaintiff’s copyrights. Arledge Decl., ¶16; Vivas Decl. ¶5. Unfortunately, it
21 was also a practice that Defendants resisted until nearly the very end of the suit.
22 Specifically, the termination of the accounts of numerous serial infringers on Defendants’
23 network was not achieved at the outset of litigation; rather, Defendants stubbornly refused
24 and it was not until multiple deposition inquiries into the continued failure of Defendants to
25 terminate these accounts that, finally, Defendants acquiesced and terminated said accounts
26 near the end of the litigation. Arledge Decl., ¶16. In short, without Plaintiff’s efforts in
27 litigating this case to the end, the termination of numerous accounts of serial infringers
28 would never have been achieved.
5
#:3239
1 B. Frivolousness: There Was Nothing Remotely Frivolous about Plaintiff’s

2 Infringement Claims, as They Were Objectively Reasonable.
3 Fee awards to a defendant in an infringement case are only appropriate when
4 plaintiffs “should have known from the outset that [its] chances of success in this case were
5 slim to none.” Seltzer v. Green Day, __ F.3d __ 2013 WL 4007803 (9th Cir. Aug. 7, 2013)
6 (quoting SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1280 (9th Cir. 2013));
7 see also Smith v. Jackson, 84 F.3d 1213, 1221 (9th. Cir. 1996) (affirming denial of section
8 505 fees motion on the grounds that, inter alia, the district court “did not find frivolousness
9 or that the suit was motivated by bad faith”). Without a doubt, this was not such a
10 situation, and Defendants do not offer any evidence to suggest otherwise. Indeed,
11 Plaintiff’s claims were more than just non-frivolous—they were eminently reasonable. To
12 wit, it is undisputed that defendant’s website is a repository of massive infringement of an
13 unparalleled scale—of dozens of Plaintiff’s works and millions of protected but unlicensed
14 works by other copyright holders. As such,
15  Defendants failed to contest Plaintiff’s copyright ownership of the works at issue;
 Defendants did not contest the valid federal registrations for the works at issue;
16  Defendants failed to contest whether exact copies of the Plaintiff’s works were
distributed, reproduced and publicly displayed on Defendants’ website;
17  Defendants did not and could not contest whether the underlying users who
uploaded the materials to the website had engaged in wanton and willful
18 infringement;
 Defendants did not and could not contest that one of the uploaders of Plaintiff’s
19 works was someone who had uploaded over 300,000 pieces of content in one
year, a staggering sum that simply cannot and does not constitute lawful
20 uploading;
 Defendants did not produce an expert to controvert Plaintiffs’ expert, who found
21 that nearly 90% of the uploads on Motherless were, to any reasonable observer,
unauthorized and illegitimate reproductions of copyrighted materials;
22  Defendants did not and could not assert that there was any fair use defense to
justify either their actions or those of its users (there plainly was not); and
23  Defendant did not and could not contest the fact that Plaintiff has lost millions of
dollars of revenues from the infringing activities and seen its business devastated
24 as a result of the widespread availability of infringing copies of its works on sites
such as Defendants’ (it plainly has).
25
26 Consequently, on summary judgment, this court formally held that “Defendants
27 infringed upon Plaintiff’s exclusive right” secured under the Copyright Act and that
28 Plaintiff was entitled to injunctive relief. Dkt. #105 at 5. Defendants were left with a
6
#:3240
1 single defense: that the complex safe-harbor provisions of the DMCA provided damages
2 (but not injunctive) immunity from what would otherwise be massive infringement
3 liability. And though they were awarded this limited affirmative defense, it was a close
4 call.
5 Courts have gone both ways on whether the safe harbor provisions of the DMCA
6 apply to websites, such as Defendants’, that are driven by—indeed, websites that are
7 intentionally built around—the distribution, reproduction, and public display of ‘user
8 generated’ content—content that, in reality, constitutes the copyrighted works of third
9 parties. And the product provided by Defendants hardly serves progress in the arts, as a
10 site like YouTube or a service like the VCR might. Indeed, Defendants are simply pirates
11 profiting from the unauthorized and uncompensated use of others’ content and their site
12 offers nothing new or transformative. As the arguments already raised in Plaintiff’s
13 summary judgment filings make clear, Plaintiff had ample basis, both factually and legally,
14 to make its claims. It prevailed on the issue of direct infringement and on the issue of
15 injunctive relief. And, based on a reasonable interpretation of the DMCA’s safe harbor
16 provisions embodied in § 512, the existing case law on the limitations of and prerequisites
17 for the safe harbor and the particular facts surrounding the Motherless website and its
18 activities, Plaintiff had an overwhelmingly reasonable basis to argue that Motherless did
19 not enjoy immunity.
20 1. Defendants thought Plaintiffs’ claims were reasonable
21 Among other things, the Plaintiff’s position was so objectively reasonable that
22 Defendants did not bring a motion for summary judgment until ordered by this Court to do
23 so. That is, Defendants themselves saw the matter as being inherently factual and worthy
24 of a trial, and so they allowed summary judgment cutoff to pass and the parties to go to the
25 pretrial phase. As Defendants claim, they have excellent counsel, so this decision to
26 forsake summary judgment for trial was a strategic one by a successful 36-year veteran
27 litigator who weighed the case’s facts under the law. This cuts against any conclusion that
28 Plaintiff’s position was not objectively reasonable.
7
#:3241
1 2. Right and Ability to Control

2 The rapidly evolving nature of DMCA jurisprudence further supports the objective
3 reasonableness of Plaintiff’s litigation position, especially at the time. Consider the issue
4 of whether Defendants had “right and ability to control” the infringing activity on its
5 website. If they did, because Defendants undoubtedly received a financial benefit from the
6 infringing activities on their site, Defendants would not enjoy the DMCA safe harbor.
7 Plaintiff argued, with eminent reason, that the appropriate test for determining “right and
8 ability to control” under Section 512(c)(1)(B) was the test for common-law vicarious
9 liability, as set forth in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262-63 (9th Cir.
10 1996) and A&M Records, Inc. v. Napster, Inc., 239 F.3d 104, 1024 (9th Cir. 2001); and
11 Plaintiff had clear and undisputed factual support to establish Defendants’ “right and ability
12 to control” the infringing activity under this common-law vicarious liability standard.
13 However, after the closing of summary judgment briefing in this case, the Ninth Circuit
14 issued its opinion in the UMG Recordings case. In an issue of first impression, the
15 ruling—decided on March 14, 2013 and several months after all of the briefing on
16 summary judgment was completed in this case—held that the common-law vicarious
17 liability standard does control Section 512(c)(1)(B). See UMG Recordings, Inc. v. Shelter
18 Capital Partners LLC, 718 F.3d 1006, 1026-27 (9th Cir. 2013). On the strength of this just-
19 decided case, this Court rejected Plaintiff’s position. This small example is emblematic of
20 this entire arena of law, where the contours of the DMCA safe harbor are still being hotly
21 contested through the federal court system, and it demonstrates the reasonableness of
22 Plaintiff’s position, particularly on an issue that was unresolved at the time of the litigation.
23 3. Reasonable Termination Policy
24 Plaintiff’s position was eminently reasonable in that Defendants did not have a
25 coherent termination policy for repeat infringers. Defendants did not even have one for
26 repeat infringers who violated Plaintiffs’ rights at issue here. Indeed, most of the users
27 who uploaded Plaintiff’s content had already been the subject of other take-down notices
28 yet were still active account holders, including one who had uploaded 307,000 distinct
8
#:3242
1 pieces of content in a year. See Dkt. #90 at 14. Those facts alone render the question of
2 whether Defendant has a “reasonable” policy (17 U.S.C. § 512(i)(1)(A)) objectively
3 reasonable and certainly not frivolous.
4 Worse yet, when deposed about its termination policy, Defendant literally lied:
5 - The 30(b)(6) witness—defendant Lange—first said Defendant always terminates
accounts if they receive more than one take down notice.
6 - When presented with the scenario of a takedown notice with 21 infringing works,
Defendant said such a person would be terminated.
7 - When presented with the existence of such a person (whose account was not
terminated), Defendant conceded it never terminated the account despite the
8 earlier testimony.
- Defendant then tried to blame the non-termination on technical glitch from a
9 supposed automated system that handled such terminations.
- Later, a different witness testified there was no such automated system.
10 - The 30(b)(6) then later admitted there was no such automated system.
- Yet Lange had no explanation for his earlier testimony.
11
Plaintiff’s Memorandum in Opposition to Defendants’ MSJ [Dkt. #90] at 11-14, quoting
12
testimony and undisputed facts in MSJ briefing; see also Arledge Decl., ¶19.
13
These are lies, black and white. A person who lies in a deposition under penalty of
14
perjury on a critical, key legal issue—even if they escape liability for other technical
15
reasons—is not entitled to the equitable powers of this Court in a fee motion. Even though
16
the Court granted summary judgment under the law, it cannot be said that Plaintiff’s view
17
of these facts was unreasonable or frivolous.
18
4. Plaintiff’s Claim Was Eminently Reasonable.
19
The recent Seltzer v. Green Day decision is illustrative of the proper approach to fees
20
motions under the Copyright Act where a prevailing defendant infringes but succeeds on an
21
affirmative defense. In the case, the Ninth Circuit reversed, for abuse of discretion, a
22
$200,000 award of attorneys’ fees to defendants who prevailed on a fair use defense against
23
claims of infringement stemming from the unauthorized use of an artist’s illustration as part
24
of a band’s stage backdrop. Seltzer v. Green Day, __ F.3d __, 2013 WL 4007803 (9th Cir.
25
Aug. 7, 2013). As the Ninth Circuit has made clear, an award of attorneys’ fees in a
26
copyright case is improper where there is mixed existing precedent relevant to the case. Id.
27
at *9 (noting that there was no reason that plaintiff-artist “‘should have known from the
28
9
#:3243
1 outset that [his] chances of success in this case were slim to none.’”) (quoting SOFA
2 Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1280 (9th Cir. 2013)). Moreover,
3 there—as here—the defendant infringed and it just happened to prevail on an affirmative
4 defense. But in Seltzer, the defendant at least had an actual transformative use-based
5 affirmative defense grounded in First Amendment policy concerns inherent in the fair use
6 calculus. And the unauthorized use was deemed not to be overly commercial. Despite this,
7 the Ninth Circuit still reversed the fee award and found it unjustified. By contrast, here,
8 Motherless and Lange had no such transformative use defense; they simply rebroadcast for
9 massive commercial gain copyrighted content to which they enjoy no rights. In short,
10 Seltzer makes clear that, although infringers may escape liability under an affirmative
11 defense, they are still infringers and certainly not worthy of fee solicitude. If a grant of a
12 fee award was an abuse of discretion in Seltzer, it is undoubtedly inappropriate here.
13 Ultimately, as the law of the Ninth Circuit dictates, where the plaintiff’s claims are
14 not “frivolous, unreasonable, or lacking in good faith,” a court should not grant fees.
15 Halicki Films, LLC v. Sanderson Sales and Marketing, 547 F.3d 1213, 1231 (9th Cir. 2008).
16 C. Motivation: Plaintiff’s Copyright Claims Were Properly Motivated by a
17 Legitimate Need to Protect Its Valuable Rights Against Infringement.
18 Plaintiff’s motivation for bringing infringement claims against Motherless has been
19 unflagging in its legitimacy throughout this suit: Plaintiff and other similarly situated
20 creators of high-end adult content have seen their businesses decimated over the past few
21 years because of the emergence of tube sites such as Motherless which facilitate massive
22 infringement of their copyrighted works. Vivas Decl., ¶2-5. As such, Plaintiff sought to
23 restore the rightful licensing market for its copyrighted work by stamping out the
24 unrelenting infringing activity on defendants’ website, which provides, for free, access to
25 unauthorized copies of Plaintiff’s works. Vivas Decl., ¶4. Such a motivation lies at the
26 heart of the Copyright Act’s purpose, which seeks to ensure that copyright holders enjoy
27 legitimate exploitation rights from the fruits of their creative endeavors. For these reasons,
28 the Ninth Circuit has cautioned that a plaintiff’s genuine desire to protect rights properly
10
#:3244
1 belonging to it represents a significant reason to deny fees to a defendant in a copyright

2 suit. See Halicki Films, LLC v. Sanderson Sales and Marketing, 547 F.3d 1213, 1230 (9th
3 Cir. 2008).
4 Indeed, in denying fees to a prevailing plaintiff in the Perfect 10 litigation involving
5 the DMCA safe harbor—a denial that was subsequently affirmed by the Ninth Circuit—the
6 trial court recognized that “the magnitude of allegations and potential liabilities” there
7 demonstrated that “both parties had important economic interest in the case and thus,
8 rightfully litigated their claims.” Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 2005 WL
9 2007932, *5 (N.D. Cal. Aug. 12, 2005), aff’d on other grounds, 494 F.3d 788 (9th Cir.
10 2007), cert. denied, 553 U.S. 1079 (2008).4 This is precisely the case here as well.
11 Plaintiff brought suit in an eminently reasonable effort to protect its economic interests as a
12 copyright holder so that it could protect its valuable intellectual property against
13 infringement—the indisputable infringement that takes place on a massive scale on
14 Defendants’ website; and Plaintiff had to fight to the bitter end to force Defendants to
15 terminate the accounts of users whom Defendants knew, from the day this suit was filed,
16 were serial infringers.
17 Furthermore, contrary to Defendants’ assertions, the existence of Plaintiff’s Section
18 17200 (2257) claim was ultimately wholly irrelevant to the disposition of this action. First
19 and foremost, at the very outset of this case, this Court bifurcated the proceedings and
20 stayed all issues relevant to the Section 17200 claim. Indeed, at the Case Management
21 Conference on November 21, 2011, the Court expressly forbade any and all discovery or
22 related work on the Section 17200 issue. As such, it makes no sense for Defendants to
23 argue that the inclusion of such claims in this suit adversely impacted their fees in any way.
24
25 4
See also Reed v. Peterson, 2005 WL 1522187, at *7 (N.D. Cal. June 27, 2005) (granting
26 motion for summary judgment in favor of defendant on all copyright claims but denying
fee shifting where “[p]laintiff’s copyright claim, while weak, was neither frivolous nor
27 motivated by anything other than Plaintiff’s desire to gain the protection of his copyrighted
work that he believed he was entitled to”); Modular Arts, Inc. v. Interlam Corp, 2009 WL
28 151336, at *2 (W.D. Wash. 2009) (deeming, as an entirely proper motivation, the bringing
of an infringement suit “to maintain a competitive business advantage”).
11
#:3245
1 Moreover, Defendants’ request for fees, which is grounded in the Copyright Act
2 alone, is, by law, limited to fees expended on just the copyright claim. Indeed, there can be
3 no recovery under the Copyright Act for work performed on “distinctively different claims
4 for relief that are based on different facts and legal theories.” Entm’t Research Group, Inc.
5 v. Genesis Creative Group, Inc., 122 F.3d 1211, 1230 (9th Cir. 1997) (quoting Hensley v.
6 Eckerhart, 461 U.S. 424, 434-35 (1983)).
7 Plaintiff raised its claim under 17200 to attack Defendants’ undisputed failure to
8 comply with the strictures of 18 U.S.C. § 2257 – the federal government’s regime to
9 combat child pornography and protect against the exploitation of minors in sexually
10 explicit works. As such, the 17200 claim was based on entirely different facts and legal
11 theories than the infringement claim—a determination already made by this Court. Dkt.
12 #105 at 25 (noting that Plaintiff’s 17200 allegations “do not share a ‘common nucleus of
13 operative fact’ with Plaintiff’s copyright claims”). The mere existence of the 17200
14 claim—on stay for nearly the entire duration of the case—should have no bearing here.
15 And if anything, Plaintiff’s inclusion of a 17200 claim in this suit suggests its good
16 faith motivations and its desire to not just vindicate its own economic interests but also to
17 help give teeth to the government’s efforts against the dissemination of child pornography.
18 Indeed, the Attorney General of New York was looking into this very Defendant and
19 reached out to Plaintiff in this case for discovery materials into Defendant and for
20 assistance, precisely because Defendants’ website is so far beyond the pale. See Vivas
21 Decl., ¶8. Plaintiff had every right to ensure that its business is not jeopardized by
22 association with a website that so openly curries favor with child pornographers.
23 D. Objective Reasonableness: Plaintiff’s Arguments Were Reasonable.
24 As detailed in our analysis of the non-frivolous nature of Plaintiff’s infringement
25 claims, Plaintiff’s legal and factually arguments were objectively reasonable. Indeed, the
26 objective reasonableness was evidenced by Defendants’ own procedural decisions.
27 Recognizing that Plaintiff had brought an eminently legal claim for copyright infringement
28 and had stated specific facts to support such a claim, Defendants did not bring any motion
12
#:3246
1 to dismiss or motion to strike. Clearly, such an election was not driven by finances, as they
2 had no problem apparently accumulating over half a million dollars in fees. Furthermore,
3 recognizing the merits to plaintiff’s claim, Defendants had no intention to bring a motion
4 for summary judgment and were content to try the fact issues to the jury. Indeed, they
5 initially elected not to bring such a motion and let the Court’s deadline for such motions—
6 April 2, 2012 [Dkt. #25]—pass.
7 Like Plaintiff, Defendants always anticipated a trial in this suit—a further indication
8 that Defendants acknowledged the merits of Plaintiff’s claim (and thus the absence of any
9 frivolity or unreasonableness). Specifically, this case was set for trial on November 6,
10 2012 (see Minutes of Trial Setting Conference [Dkt. #31]), and the parties held a Pre-Trial
11 Conference on both October 29, 2012 [Dkt. #75] and November 1, 2012 [Dkt. #76]. It was
12 only five days before trial, on November 1, 2012, that this Court vacated the trial date and,
13 sua sponte, set aside its previous deadline for dispositive motions and gave the Defendants
14 an additional opportunity to bring a motion for summary judgment on the DMCA—an
15 opportunity it had previously declined. See Minutes of Pretrial Conference [Dkt. #76].
16 Thus, Plaintiff’s infringement claim was objectively reasonable as even oppposing
17 counsel’s litigation decisions demonstrate that they viewed Plaintiff’s infringement claims
18 as eminently plausible and their DMCA defenses as requiring a trial.
19 Existing precedent strongly disfavors an award of fees to a prevailing defendant in a
20 copyright infringement claim that is objectively reasonable. Time and time again, post-
21 Fogerty, the federal circuits have consistently reversed grant of fees to a prevailing
22 defendant when a plaintiff’s position was objectively reasonable. See, e.g., Seltzer v. Green
23 Day, __ F.3d __, 2013 WL 4007803 (9th Cir. Aug. 7, 2013) (reversing an award of fees to
24 prevailing plaintiff as an abuse of discretion because, inter alia, there was no reason for
25 plaintiff to “’have known from the outset that [its] chances of success in this case were slim
26 to none’”); Fogerty v. MGM Group Holdings Corp, Inc., 379 F.3d 348, 357 (6th Cir. 2004)
27 (reversing an award of fees to a prevailing defendant in a copyright suit in that it was an
28 abuse of the trial court’s discretion because plaintiff’s claim was objectively reasonable);
13
#:3247
1 Matthew Bender & Co., Inc. v. West Pub. Co., 240 F.3d 116, 122 (2d Cir. 2001) (reversing
2 an award of fees to a prevailing defendant in a copyright suit where district court admitted,
3 and circuit court agreed, there “was a non-frivolous basis” for plaintiff’s claim); Harris
4 Custom Builders Inc. v. Hoffmeyer, 140 F.3d 728, 730-31 (7th Cir. 1998) (reversing an
5 award of fees to a prevailing defendant in a copyright suit as an abuse of discretion because
6 plaintiff’s claim was objectively reasonable). Indeed, the emphasis on the plaintiff’s
7 objective reasonableness in such cases stems from the Supreme Court’s admonition in
8 Fogerty that any award of fees must be “faithful to the purposes of the Copyright Act.”
9 Fogerty, 510 U.S. at 534, n.19; Matthew Bender, 240 F.3d at 122. As such, the objective
10 reasonableness of Plaintiff’s infringement claims precludes an award of fees to Defendants.
11 E. Compensation and Deterrence: Policy Considerations Weigh Against
12 Fees in This Case as Plaintiff’s Claims Involved Complex and Novel
13 Issues Whose Resolution Benefits the Copyright Regime.
14 Finally, policy considerations of compensation and deterrence strong disfavor a grant
15 of fees here. Specifically, “the presence of a complex or novel issue of law” in a copyright
16 suit “justif[ies] the denial of [a] fee[] motion.” See McCulloch v.Albert E. Price, Inc., 823
17 F.2d 316 (9th Cir. 1987). Resolution of this case turned on interpretation of DMCA safe
18 harbor provisions that did not exist fifteen years ago, as applied to a technology that is
19 less than a decade old, based on a reading of a narrow body of case law that has only
20 emerged in the last few years, and as applied to a specific series of facts for which there
21 is no directly apposite precedent. In short, the novelty and complexity of the claims in this
22 case strongly militate against any fees award.
23 Critically, Plaintiff’s research is unable to locate a single reported decision where a
24 court granted fees to a defendant when it was found to have infringed yet prevailed due to
25 application of the DMCA safe harbor defense. For example, in UMG’s litigation against
26 Veoh, a district court ultimately found that Veoh (just like the defendants here) enjoyed a
27 DMCA safe harbor for the infringing activities of its users. Nevertheless, the district court
28 rejected Veoh’s motion for fees under section 505 and noted that challenges on the scope of
14
#:3248
1 the DMCA safe harbor, even if unsuccessful for a plaintiff, actually “can lead to
2 clarification and more predictable application of principles of secondary copyright
3 liability.” UMG Recordings, Inc. v. Veoh Networks Inc., 2010 WL 255584, at *2 (C.D.
4 Cal. Jan. 15, 2010), aff’d on other grounds in UMG Recordings, Inc. v. Shelter Capital
5 Partners LLC, 781 F.3d 1006 (9th Cir. 2011) (noting that defendant did not even appeal the
6 denial of fees under section 505). This fact strongly weighs against an award of fees to a
7 defendant for prevailing on a safe harbor defense. Id.
8 The logic of UMG makes eminent sense. Courts have consistently declined to grant
9 awards of fees to prevailing defendants in DMCA safe harbor cases because such cases are
10 novel, involve complex issues of copyright law for which there are not yet ready answers
11 and understandably involve plaintiffs bringing action to protect their intellectual property
12 rights from infringement of a massive scale. For example, in Perfect 10 Inc. v. CCBill
13 LLC, Perfect 10 sought to hold payment processors liable for the infringing web activities
14 of their customers. The defendants prevailed on the DMCA defense. Nevertheless, the
15 district court declined to award fees, a measure affirmed by the Ninth Circuit. Perfect 10,
16 Inc. v. CCBill LLC, 488 F.3d 1102, 1120 (9th Cir. 2007). As the Ninth Circuit reasoned, the
17 complexities of the DMCA safe harbor provisions provided “ample support” for a finding
18 that the plaintiff’s “legal claims are not frivolous or objectively unreasonable.” Id.
19 The leading treatise on the law of copyright, Nimmer on Copyright, is in accord. As
20 Nimmer explains, fees motions are particularly inappropriate in novel or close cases. 5-14
21 Nimmer on Copyright, § 14.10[D][1]. Indeed, the litigation of such close cases actually
22 advances the purposes of the Copyright Act: “When close infringement cases are litigated,
23 copyright law benefits from the resulting clarification of the doctrine’s boundaries.” Lotus
24 Dev. Corp. v. Borland Int’l, Inc., 140 F.3d. 70, 75 (1st Cir. 1998). Indeed, an award of fees
25 against a plaintiff in such cases would have a “chilling effect” against the advancement of
26 “reasonable, albeit unsuccessful, claim[s].” Id. An award of fees in this case would indeed
27 deter future litigation brought by legitimate rights-holders against websites that
28 indisputably contain massive quantities of infringing content—and which are reproducing,
15
#:3249
1 making available for download, and publicly displaying such content—in an effort to test
2 the metes and bounds of the DMCA safe harbor. The Copyright Act encourages parties to
3 raise “objectively reasonable claims and defenses . . . [both] to deter infringement and to
4 ensure ‘that the boundaries of copyright law [are] demarcated as clearly as possible’ in
5 order to maximize the public exposure to valuable works.” Mitek Holdings, Inc. v. Arce
6 Eng’g Co., 198 F.3d 840, 842-43 (11th Cir. 1999) (quoting Fogerty, 510 U.S. at 526-27).
7 As the Ninth Circuit has asserted, “Section 505 is intended in part to encourage the
8 assertion of colorable copyright claims and to deter infringement.” Hustler Magazine Inc.
9 v. Moral Majority Inc., 796 F.2d 1148, 1157 (9th Cir. 1986).
10 IV. THE FEE AMOUNTS ARE EXCESSIVE AND NOT REASONABLE.
11 In the unlikely event that this Court grants Defendants’ motion for attorneys’ fees,
12 there is strong reason to curtail the requested amount substantially. Simply put,
13 Defendants’ requested fees are wildly excessive. As a starting matter, the burden falls upon
14 the motioning party to document and prove its entitlement. Hensley, 461 U.S. at 437
15 (“[t]he burden of establishing entitlement to an attorney’s fees award lies solely with the
16 claimant”). And courts should exclude all “[h]ours that are excessive, redundant, or
17 otherwise unnecessary,” or not properly documented. Id. at 433–34.
18 A. Defendants Vastly Exceed Expenditures for Similar Cases.
19 Defendants’ requested fees vastly exceed two widely recognized measures of
20 reasonableness: (1) the median expense for litigating similar cases, as compiled by the
21 American Intellectual Property Law Association (AIPLA)’s annual Report of the Economic
22 Survey; and (2) the amount and time the non-moving party spent litigating the same case.
23 On the first, the AIPLA’s Report is regularly used by courts to determine the
24 reasonableness of fees requests, as it represents a broadly accepted valuation of IP litigation
25 expenditures. See, e.g., View Engineering, Inc. v. Robotic Vision Systems, Inc., 208 F.3d
26 981, 987 (Fed. Cir. 2000) (approving of the use of the AIPLA Report); Apple, Inc. v.
27 Samsung Electronics Co., Ltd., 2012 WL 5451411, at * (N.D. Cal. Nov. 7, 2012) (noting
28 that “courts in this district have looked to the American Intellectual Property Law
16
#:3250
1 Association's (“AIPLA”) annual survey of hourly rates to ascertain the reasonableness

2 of fees”) (citations omitted). According to the AIPLA’s 2013 Report of the Economic
3 Survey, the median expenditure to litigate an average copyright case (with $1m-$10m at
4 stake)5 through the end of discovery (i.e., to motions for summary judgment, as here) is
5 $350,000. See 2013 Report of the Economic Survey, at I-171. Yet, Defendants’ fee request
6 is a startling 45% higher than that figure.
7 The fees requested by Defendants are particularly egregious when one considers that
8 they are requesting far more than this figure for a matter that was hardly litigated with the
9 vigor of any average copyright case. To wit, there was only a single set of motions decided
10 in this case (cross motions for summary judgment) and, for the Defendants, the motion was
11 brought only on a single issue: its eligibility for the DMCA safe harbor. There were no
12 motions to dismiss, no motions to strike, no discovery disputes to speak of, and no motions
13 to compel. Arledge Decl.,¶13. Defendants took the depositions of only two individuals
14 (Allison Vivas and Frederick Lane), defended the depositions of only three individuals
15 (Josh Lange, Robert Straussburg, and Sean Hickey), and participated in the very short
16 deposition of third party Brian Hoffpaiur. Even the documents produced here were narrow
17 and simple: essentially emails between Defendant and third parties and DMCA take-down
18 notices. Defendants did not even present an expert. Arledge Decl., ¶14, The issues
19 addressed in the case were narrow because, as the Court correctly observed at the outset of
20 this dispute, its entire resolution likely rested on whether the Defendants qualified for the
21 DMCA safe harbor. (Dkt. #21. As such, the Court presciently limited the initial round of
22 discovery to that single issue and almost all work on the case related to that single issue.
23 Indeed, at the time of the decision on the summary judgment motion, the case occupied a
24 meager 105 entries in this Court’s ECF docket system. Arledge Decl., ¶13. As such, any
25
26 5
There were infringements of 33 videos at dispute in this suit, see Pretrial Stipulation [Dkt. #73],
27 thereby allowing for a potential maximum statutory damages award of $4,950,000 ($150,000
multiplied by 33) and placing this case squarely in the mid-range ($1m-$10m at stake) of
28 copyright infringement suits.
17
#:3251
1 reasonable fee request should amount to substantially less than the average figure of
2 $350,000, let alone Defendants’ inflated number.
3 B. Defendants’ Requested Fees Vastly Exceed Plaintiff’s Billing.
4 On the second comparison point, a non-moving party’s fees are directly probative of
5 the reasonableness on a moving party’s fees as the numbers on each side reflect work on
6 identical legal and factual issues by attorneys employed in the same legal market. See, e.g.,
7 Mitroff v. Xomox Corp., 631 F. Supp. 25, 28 (S.D. Ohio 1985). As the Ninth Circuit has
8 held, an opposing party’s fees expenditures are directly relevant to assessing the
9 reasonableness of a fees request. Cairns v. Franklin Mint Co., 292 F.3d 1139, 1159 (9th
10 Cir. 2002). In ordinary circumstances, the expenditures on both sides should be roughly
11 commensurate. Here, however, they are not. Rather, they are shockingly different.
12 Specifically, as the attached records indicate, Plaintiff’s counsel has billed a total of
13 $346,161.50 in attorneys’ fees to date in this case. Arledge Decl., ¶3. By contrast,
14 Defendants request fees in the amount of $485,895.996—a whopping 40.0% more than
15 Plaintiff’s counsel. Experienced attorneys may charge higher billing rates, but that is
16 because they are typically deemed to be far more efficient. Although counsel was charging
17 a premium rate based on his extensive, 36 years of experience litigating in federal court, it
18 does not appear—unfortunately—to have translated into efficiency. And Plaintiff’s fees
19 were a function of taking most of the case’s depositions (as opposed to defending) and
20 having to collect and analyze all the documents for those depositions, and work with an
21 expert—none of which Defendants did. Arledge Decl., ¶14.
22 C. Defendants Cannot Meet Their Burden to Justify Their Time Spent as
23 Reasonable.
24
25
26
27 6
Defendant is requesting $468,521.00 for fees allegedly incurred by Mr. Richman’s firm and
28 $17,374.99 for fees allegedly incurred by the Lynn Firm, for a grand total of $485,895.99. See
Richman Decl. at Paragraph 34.
18
#:3252
1 Indeed, there is no sound basis to rationalize defense counsel’s excessive figures.

2 While Defendants’ fees motion spends much time justifying its counsel’s billing rates—
3 rates that we do not challenge as unreasonable—Defendants’ motion does not spend a
4 single sentence explaining why or demonstrating how the time allegedly expended by its
5 counsel was reasonable in any way whatsoever. And “[t]he burden of establishing
6 entitlement to an attorney’s fees award lies solely with the claimaint.” See Hensley, 461
7 U.S. at 437. Instead, the motion is only filled with a series of conclusory statements that
8 deem the attorneys’ activities as “necessary and appropriate” and laude their work as
9 “diligent[] and efficient[].” (Defendants’ Motion for Attorneys’ Fees [Dkt. #113] at 24).
10 Summary conclusions about counsel’s diligence and efficiency and the necessity and
11 appropriateness of its actions do not meet Defendants’ basic burden of proof. In fact, even
12 a cursory examination of defense counsel’s billing statements calls into question these self-
13 serving and unsubstantiated conclusions.
14 Limitations on briefing, the interests of brevity and the wise admonition that “[a]
15 request for attorney’s fees should not result in a second major litigation,” Id. at 437, caution
16 against us from going through each and every entry, but what follows are illustrative:
17 Action Category Plaintiff Defendants’ Percentage By Which
Attorney Time Attorney Time Defendant’s Time & Fees
18
& Dollars Billed & Dollars Billed Exceed Plaintiff’s
19 No. 7 [Preparing 7.9 hours 16.3 hours Hours: 106.4% higher
Written Discovery] ($1670.50) ($8216.50) Fees: 391.9% higher
20
No. 8 [Responding 18.6 hours 56.6 hours Hours: 204.3% higher
21 to Discovery] ($4747.00) ($28,526.00) Fees: 500.1% higher
22 No. 13 [Frederick 9.9 hours 21.9 hours Hours: 121.2% higher
Lane Deposition] ($4900.50) ($11,059.50) Fees: 125.7% higher
23 No. 14 [Invest., 3.7 hours 16.7 hours Hours: 351.4% higher
24 Communications & ($1387.50) ($8433.50) Fees: 507.8% higher
Other Expert Tasks]
25 No. 27 [Summary 113.5 hours 188.1 hours Hours: 65.7% higher
26 Judgment Work] ($55,006.50) ($94,960.50) Fees: 72.6% higher
GRAND TOTAL $346,161.50 $485,895.99 Fees: 40.0% higher
27 OF ALL CASE
28 WORK
19
#:3253
1
Defendants’ Attorney ADDITIONAL ISSUE
2
Time & Dollars Billed
3 No. 24 [Preparing Trial 40.4 hours ($20,402.00) NOT APPORTIONED
Brief] BETWEEN COPYRIGHT AND
4
SECTION 17200 CLAIMS
5 No. 29 [Preparing Fees 99.6 hours ($36,746.00) WILDLY EXCESSIVE UNDER
6 Motion] COURT PRECEDENT, FAILED
TO MEET AND CONFER AND
7 BILLING IRREGULARITIES
8
9 1. The Time Spent on the MSJ Is Not Reasonable
10 While Plaintiff’s counsel spent $55,006.50, representing 113.5 hours of attorney
11 time, for all work related to summary judgment in this case, Defendants spent a mind-
12 boggling $94,960.50, representing 188.1 hours of pneumatic attorney time. (See Arledge
13 Decl., ¶8, and Richman Decl. [Dkt. #113-1] at 10). In short, Defendants expended
14 approximately double the time and money of Plaintiff on the issue of summary judgment.
15 As such, a 188.1 hour fees request is spectacularly unreasonable and particularly suspect.
16 First, during the Pre-trial conference held on November 1, 2012, this Court ordered
17 the Defendants to file a motion for summary judgment. The Court gave Defendants 13
18 days to do so, making the motion due on November 13, 2012. See Dkt. #76. It strains all
19 credulity to believe that so much attorney time could be generated in such little real time.
20 Second, defense counsel’s own billing records suggest that the numbers are vastly
21 inflated. The entries indicate that counsel spent 6.8 hours on November 3rd to start to draft
22 its motion for summary judgment and then spent 8.7 hours on November 4th to complete its
23 draft of the motion. See Richman Decl., Exh.16 [Dkt. #113-3] at 2. These numbers—15.5
24 hours for the drafting of such a motion—are entirely reasonable, especially for a motion
25 limited to a single issue—the DMCA safe harbor. Unfortunately, however, counsel
26 followed this work with an additional 85.3 hours of time (entries from November 5th
27 through November 13th, the filing date) to take the draft and prepare it and accompanying
28 exhibits, statements and declarations for filing. See Richman Decl., Exh.16 [Dkt. #113-3]
20
#:3254
1 at 2-4. Admittedly, such things take time; but they should not require five times as much
2 time as the actual drafting of the motion itself.
3 Furthermore, courts have struck far lower requests for time for preparing summary
4 judgment motions in copyright cases, deeming them unreasonable. See, e.g., International
5 Korwin Corp. v. Kowalczyk, 665 F. Supp. 652 (N.D. Ill. 1987) (holding unreasonable and
6 excessive, in a copyright infringement case, the billing of 18.25 hours of attorney time for
7 preparing a motion for summary judgment and 14.8 hours for reply to the opposition brief).
8 2. The Time Spent on Experts Is Not Reasonable.
9 Defendants did not designate any experts in this case. Nevertheless, they seek
10 $8,433.50 in fees (representing 16.7 hours of attorney time) for experts they never retained
11 or used. By sharp contrast, Plaintiff’s only spent a total of $1,387.50 in fees (representing
12 9.9 hours of attorney time) on billing in the same category (investigation, communications,
13 and other tasks relating to potential experts), even though Plaintiff retained and designated
14 an expert in this case. See Arledge Decl., ¶7.
15 3. The Time Spent on Discovery-Depositions Is Not Reasonable.
16 For depositions where the Plaintiff was taking, and the Defendants were defending,
17 respective counsel spent roughly equivalent amounts of time and money (see Arledge
18 Decl., ¶¶9-11; Richman Decl.[Dkt. #113-1] at 10), even though it is universally
19 acknowledged that taking a deposition requires much more work than defending one.
20 However, when Defendants took depositions, their fees vastly exceeded those of Plaintiff’s.
21 For example, for the Frederick Lane deposition, while Plaintiff counsel spent a total of
22 $4,900.50 (representing 9.9 hours) preparing and defending his deposition (Arledge Decl.,
23 ¶6), Defendants incurred more than twice the fees ($11,059.50) and hours (21.9 hours) in
24 preparing for and taking the deposition.
25 Meanwhile, time and fees spent on drafting and responding to discovery were
26 remarkably different. Thus, while Plaintiff spent $1,670.50 (representing 7.9 hours)
27 preparing two different rounds of written discovery, Defendants spent more several times
28 as much—$8,216.50 (representing 16.3 hours)—preparing only a single set of written
21
#:3255
1 discovery. And while Plaintiff spent $4,740.00 (representing 18.6 hours) responding to
2 discovery, Defendants spent several times as much—$28,526.00 (representing 56.6
3 hours)—responding to discovery. Arledge Decl., ¶¶4-5. Such an alleged expenditure of
4 time is beyond the pale, and not the mark of efficiency or reasonableness.
5 4. The Time Spent on the Fees Motion Is Not Reasonable.
6 The requested hours for preparing the fees motion itself are not reasonable and the
7 billing record is replete with irregularities. This Court has previously held that 45.3 hours
8 is a reasonable number for time spent on a complicated copyright fees motion involving
9 multiple declarations and numerous invoices. See L.A. Printex Industries, Inc. v. William
10 Carter Co., 2010 WL 4916634, at *8 (C.D. Cal. Dec. 1, 2010). See also Oviatt By and
11 Through Waugh v. Pearce, 954 F.2d 1470, 1482-83 (9th Cir. 1992) (affirming the rejection
12 as excessive and unreasonable of a request for 21 hours in attorney time (and instead
13 awarding 10 hours)). But Defendants request more than twice that amount—a whopping
14 99.6 hours for this narrow fee motion. In particular, defense counsel’s billing records
15 indicate that they spent a startling 30.9 hours7 doing nothing more than reviewing and
16 analyzing the invoices of the Theodora firm. See Richman Decl., Exh. 24 & 25 [Dkt. #113-
17 3]. As Exhibits 13-25 indicate, there were only 13 invoices in total from the firm over the
18 course of the litigation. Spending almost two and a half hours of time on the review and
19 analysis of each invoice is patently unreasonable. It is similarly unclear why defense
20 counsel would be billing 10.3 hours of attorney time for drafting a motion for fees in
21 December 20128—more than seven months before this Court even decided the motion for
22 summary judgment. See Richman Decl., Exh.17 [Dkt. #113-3] at 3. Further, any award of
23 fees for the preparation of the fees motion itself is inappropriate given the failure to meet
24 and confer as well as the fact that Defendant did not even prevail on the contested
25 infringement claim on Plaintiff’s case-in-chief.
26
27 7
7.8 hours on 7/13, 7.9 hours on 7/14, 2.4 hours on 7/19, 3.7 hours on 7/26, 2.8 hours on 7/29, 1.4
28 hours
8
on 8/4, and 4.9 hours on 8/5
3.3 hours on 12/6, 2.0 hours on 12/7, 3.0 hours on 12/8, and 2.0 hours on 12/9.
22
#:3256
1 5. There Is No Basis for Fees Defendants’ New York Lawyer.

2 There is no basis to justify fees to Defendants’ New York lawyer. He did nothing on
3 the case, and never attended a single deposition, even when they were in New York.
4 D. In the Unlikely Event That This Court Grants Defendants’ Motion for
5 Fees, a Dramatic Deduction from Defendant’s Request Is Warranted.
6 All told, even when courts choose to exercise their discretion and grant fees in a
7 copyright suit, they routinely cut the amount requested substantially. See, e.g., Harris v.
8 Emus Records Corp., 734 F2d 1329 (9th Cir. 1984) (affirming a 50% percent cut from the
9 actual attorneys’ fees expended by a prevailing party); T-Peg v. Vermont Timber Works,
10 Inc., 669 F.3d 59 (1st Cir. 2012) (reducing an award of fees to $35,000 from more than
11 $200,000 requested—a reduction of 82.5%—to a prevailing defendant); GMA Accessories
12 v., Inc. v. Olivia Miller, Inc., 139 Fed. Appx. 301 (2d Cir. 2005) (affirming a 91.4%
13 reduction in requested fees—from $37,000 to just $5,000—to a prevailing plaintiff). In the
14 unlikely event that this Court exercises its discretion and awards fees to Defendants, the
15 examples highlighted above dictate that the amount requested by Defendants should be
16 reduced dramatically.
17 E. Defendants’ Fees Request Is Deficient Because There is No Proof That
18 Defendants Have Ever Paid the Allegedly Invoiced Fees.
19 As Nimmer has noted, the amount of a section 505 fees award—to the extent that it
20 is granted at all—“should be based on the reasonable value of the services rendered,
21 without adding any additional amount by way of penalty.” 5-14 Nimmer on Copyright §
22 14.10[C] (citing Crescent Publ’g Group, Inc. v. Playboy Enters., Inc., 246 F.3d 142, 150
23 (2d Cir. 2001); Montgomery v. Noga, 168 F.3d 1282, 1304 (11th Cir. 1999)). In other
24 words, an award of attorneys’ fees should not serve as a windfall. Consequently, a court
25 should not—and indeed cannot—grant an award of fees beyond what defendant actually
26 paid for counsel’s services. As the Second Circuit has cautioned, “for prevailing parties
27 with private counsel, the actual billing arrangement is a significant, though not
28 necessarily controlling, factor in determining what fee is ‘reasonable.’” Crescent Publ’g
23
#:3257
1 Group, Inc. v. Playboy Enters., Inc., 246 F.3d 142, 151 n.8 (2d Cir. 2001). And, in citing
2 this holding from the Crescent Publishing decision with approval, this Court has pointed
3 out that it is the actual billing arrangement—not what an attorney might invoice a client but
4 fail to collect—that “provides a strong indication of what private parties believe a
5 ‘reasonable’ fee would be.” See Robinson v. Lopez, 2003 WL 23162906, *3, 69 U.S.P.Q.
6 2d 1241, 1243 (C.D. Cal. Nov 24, 2003).
7 In this case, there is no proof provided that Defendants are actually paying the fees
8 allegedly invoiced and documented in its motion. Indeed, quite conspicuously, defense
9 counsel’s declarations never state that that their client has ever paid a single penny of the
10 purported fee statements appended to its fees motion. To determine the actual
11 reasonableness of a fees request, it is incumbent for a moving party to provide information
12 on what fees it has actually paid. See Warner Bros. Inc. v. Dae Rim Trading, Inc., 695 F.
13 Supp. 100, 110 (S.D.N.Y. 1988) (adopting the general principle that “the prevailing party
14 may not make a profit in payment of an attorneys' fee over and above the amount which the
15 client actually paid to the attorney.”) (emphasis added). In neglecting to provide such
16 proof, Defendants have failed to carry their burden and have threatened to transform its
17 fees request into a windfall recovery.9
18 F. Defendants Fail to Meet Their Burden to Apportion Fees.
19 In the unlikely event that Defendants are granted fees at all, an apportionment
20 deduction must also be made to account for all the time Defendants spent on their
21 unsuccessful claims (which Plaintiff prevailed on [infringement, injunctive relief] or which
22 were dismissed without prejudice [17200/2257]). Hensley, 461 U.S. at 436 (when a party
23 achieves “only partial or limited success,” its fees should be commensurately reduced). As
24 noted earlier, Defendants’ success was far from total, as they were found to have directly
25
26 9
And if Defendants now try to substantiate their motion with additional filings, those filings are
27 late as both Federal and Local Rules require that a fee motion be filed within 14 days of entry of
the final order. See Fed. R. Civ. P. 54(d)(2)(B)(i) & L. R. 54-12. The current motion is deficient
28 and a new motion that provides the requisite material would be well past the 14-day deadline.
24
#:3258
1 infringed all of the copyrighted works at issue in the case and the Court deemed Plaintiff
2 eligible to receive injunctive relief under § 512(j) as needed.
3 As such, a proper fee motion must allocate hours properly between the areas where
4 Defendants achieved success (the DMCA safe harbor) and those where they clearly did not
5 (the issue of direct infringement, the issue of injunctive relief, the termination of the
6 accounts of repeat infringers). In addition, fees should be apportioned between the
7 copyright-related claims (which come under the scope of a Section 505 request) and the
8 Section 17200 claims (which do not). See Entm’t Research Group, Inc. v. Genesis Creative
9 Group, Inc., 122 F.3d 1211, 1230 (9th Cir. 1997) (there can be no recovery under the
10 Copyright Act for work performed on “distinctively different claims for relief that are
11 based on different facts and legal theories”). For example, Defendants claim to have spent
12 $20,402.00 in fees (representing 40.4 attorney hours) on their trial brief , but we are never
13 told what portion of that time was dedicated to the Section 17200 claims (or to defending
14 infringement) and we cannot even speculate as to that amount because, as Defendants
15 admit, their trial brief was never filed. See Richman Decl. [Dkt. #113-1], p. 10 at Item No.
16 24.
17 All told, despite apparently spending more than $36,000 and almost 100 hours in
18 preparing the fees motion, Defendants’ motion does not make even the most basic attempt
19 at apportionment. This burden is squarely with the moving party on a fees motion,
20 Hensley, 461 U.S. at 436-37 and, in failing to meet this burden, Defendants have not
21 justified any grant of fees.
22 V. CONCLUSION
23 For the foregoing reasons, Defendants’ motion for fees should be denied.
24 Dated: August 26, 2013 ONE LLP
25
26 By: /s/ John Tehranian
John Tehranian
27
28
25

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Case 2:11-cv-05912-SVW-FMO Document 121 Filed 08/26/13 Page 1 of 31 Page ID #:3228

1 Peter Afrasiabi, Esq. (Bar No. 193336)

OPPOSITION TO DEFENDANTS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS

5 239 F.3d 104, 1024 (9th Cir. 2001) ..................................................................................... 8

6 Alcatel-Lucent USA Inc. v. Dugdale Communications, Inc.,

7 2009 WL 3346784 (C.D. Cal. Oct. 13, 2009)..................................................................... 2

8 Apple, Inc. v. Samsung Electronics Co., Ltd.,

9 2012 WL 5451411, at * (N.D. Cal. Nov. 7, 2012) ........................................................... 17

10 Cairns v. Franklin Mint Co.,

11 292 F.3d 1139, 1159 (9th Cir. 2002) ................................................................................. 18

12 Crescent Publ’g Group, Inc. v. Playboy Enters., Inc.,

13 246 F.3d 142, 150 (2d Cir. 2001) ............................................................................... 23, 24

14 Designing Health, Inc. v. Erasmus,

15 2002 WL 34536668 ............................................................................................................ 2

16 Entm’t Research Group, Inc. v. Genesis Creative Group, Inc.,

17 122 F.3d 1211, 1230 (9th Cir. 1997) ........................................................................... 12, 25

18 Ets-Hokin v. Skyy Spirits, Inc.,

19 323 F.3d 763, 766 (9th Cir. 2003) ....................................................................................... 4

20 Fantasy, Inc. v. Fogerty,

21 94 F.3d 553, 559 (9th Cir. 1996) ......................................................................................... 4

22 Fogerty v. Fantasy, Inc.,

23 510 U.S. 517.................................................................................................................. 3, 14

24 Fogerty v. MGM Group Holdings Corp, Inc.,

25 379 F.3d 348, 357 (6th Cir. 2004) ..................................................................................... 14

26 Fonovisa, Inc. v. Cherry Auction, Inc.,

27 76 F.3d 259, 262-63 (9th Cir. 1996) .................................................................................... 8

1 GMA Accessories v., Inc. v. Olivia Miller, Inc.,

1 Modular Arts, Inc. v. Interlam Corp,

1 Twentieth Century Music Corp. v. Aiken,

14 17 U.S.C. § 512(i)(1)(A) ......................................................................................................... 9

15 18 U.S.C. § 2257 ................................................................................................................... 12

1 Jackson factors by Defendants)—degree of success, frivolousness, motivation, objective

1 B. Frivolousness: There Was Nothing Remotely Frivolous about Plaintiff’s

1 2. Right and Ability to Control

1 belonging to it represents a significant reason to deny fees to a defendant in a copyright

1 Association's (“AIPLA”) annual survey of hourly rates to ascertain the reasonableness

1 Indeed, there is no sound basis to rationalize defense counsel’s excessive figures.

1 5. There Is No Basis for Fees Defendants’ New York Lawyer.

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