Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 1 of 5
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`Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 1of 5
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`Larry W. McFarland (Bar No. 129668)
`E-Mail:
`bmcfarland@kmwlaw.com
`No. 155407)
`Dennis Wilson (Bar
`E-Mail:
`dwilson@kmwlaw.com
`David K.
`Caplan (Bar No.
`con
`181174)
`E-Mail:
`E-Mail: dcaplan@kmwlaw.com
`(Bar No. 256079)
`Tara D. Rose
`toseaakmvlaw
`AND & WILSON LLP
`KEATS McF
`9720 Wilshire Boulevard
`Penthouse Suite
`Beverly Hills, California 90212
`248-3830
`Telephone: (310)
`Facsimile: (310) 860-0363
`
`Attomeysfor Plaintiff
`ZYNGA INC.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`ZYNGAINC.,
`
`a Delaware Corporation,
`
`CASE NO. CV11-2959 EJD
`
`Plaintiff,
`
`Vv.
`
`a Delaware Cosporation;
`VOSTU USA,INC.,
`a Delaware Corporation; VOSTU,
`VOSTU LLC,
`a Delaware Corporation; VOSTU, LTD.,
`a
`LLC,
`Cayman Islands
`Corporation; and DOES1-5,
`
`Defendants.
`
`DECLARATION OF MANOELJ. PEREIRA
`DOS SANTOSIN OPPOSITION TO
`DEFENDANTS’ APPLICATION FOR
`TEMPORARYRESTRAINING ORDER
`
`Noted For Hearing:
`DATE:
`TIME;
`PLACE:
`
`Courtroom 1,5" Floor
`
`————————————
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`Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 2 of 5
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`Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 2 of 5
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`I, Professor ManoelJ. Pereira dos Santos, hereby declare as follows:
`lam a Professor of Law in the graduate programsof the School of Law ofthe
`1.
`in Sao Paulo, where I coordinate an Intellectual Property
`Fundagdo Getilio Vargas (FGY)located
`in Intemet and other Mass Media. I am overthe age of 18
`Program and a course on Civil Liability
`and am
`competentto testify. I have been retained by ZyngaInc. (“Zynga”)
`provide expert
`at issue in the defendants’ (“Vostu”)
`
`to
`
`testimony in the Brazilian lawsuit (the “Brazilian Action”)
`instant application for a
`temporary restraining order (the “Application”)
`I received a J.D. degree,
`a Master of Laws degree and a Doctor of Laws degree from
`2.
`the University of Sdo Paulo Law School, and a Master of Comparative Jurisprudence degree from
`the New York University School of Law.
`Thave published several articles and books on Intellectual Property law, particularly
`copyright law issues, and on Intemet related matters. Since 2003 I have contributed the Brazil
`of the International Copyright Law and Practice, (Paul Edward Geller ed., Lexis Nexis
`
`3.
`
`Chapter
`
`2010).
`
`4,
`
`I am familiar with the copyright laws of both Brazil and the United States, and I
`have worked with the Brazilian governmentin the revision of the Brazilian copyrightlegislation.
`served as former chairman ofthe First Chamber and Counselorof the Brazilian National Copyright
`
`I
`
`Council.
`5.
`
`A true and correct copy of my curriculum vitae is attached hereto as Exhibit 1.
`
`6.
`
`I submitted an
`
`expert report to the Court in the Brazilian Action supporting Zynga’s
`
`claims before the Civil Court of the State of Sao Paulo.
`
`7.
`
`I have reviewed the documents submitted by Vostu in support of its Application,
`including butnot limited to the “Declaration of Ronaldo Lemos in Support of Vostu’s Ex Parte
`Application for Temporary Restraining Order Enjoining Zynga From
`Pursuing Brazilian Litigation”
`Declaration”) and the “Memorandum ofPoints and Authorities in Support of Vostu’s
`Application for Temporary Restraining Order Enjoining Zynga from Pursuing Brazilian
`
`(the “Lemos
`
`Ex Parte
`
`
`
`|
`
`
`
`

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`Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 3 of 5
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`Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 3 of 5
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`8,
`
`on a
`
`Litigation” (the “Memorandum”).
`In my
`copyright infringement claim by
`opinion,a ruling
`under United States law may havea different outcome when compared with a
`ruling
`copynght
`a Brazilian court under Brazilian law, In reality, Brazilian courts may
`infringementclaim by
`and apply copyright concepts in
`distinctly different ways in infringementcases,
`interpret
`notwithstandingthe fact that both United States and Brazil are
`on Trade-
`to the Agreement
`subject
`ofIntellectual Property Rights (the “TRIPS Agreement”) and the Beme
`Related Aspects
`
`a United States court
`
`on a
`
`Convention for the Protection of Literary and Artistic Works (the
`Convention”).
`nor the Beme Convention for the Protection of
`
`9.
`
`Neither the TRIPS Agreement,
`
`“Beme
`
`(i)
`
`provide
`
`Literary and Artistic Works (the “Beme Convention”), whichis incorporated into the TRIPS
`Agreement, require memberstates’ copyright lawsto be so similar that a claim in one
`jurisdiction
`would be decided in the same way in anotherjurisdiction. The TRIPS Agreement and the Beme
`as
`a minimum standard of protection
`to
`Convention merely require each memberstate
`provide the same
`to
`defined under the TRIPS Agreement and the Berne Convention,and(ii)
`to its own nationals. See Beme
`
`to
`
`foreign copyright holders that it provides
`substantive rights
`Convention, Article V(1). In fact, the Berne Convention expressly contemplates that memberstates
`will enact different substantive copyright laws, and expressly authorizes “greater protection [than
`.
`
`Convention] which maybe granted bylegislation in a
`specified by the Beme
`Berme Convention, Art. 19.
`
`country of the Union.”
`
`10.
`
`infringement
`
`As amatter of practice, Courts may adopt different approaches
`case because commonlaw andcivil law are still distinct systems of law in spite
`In addition, the United States
`affinities that the
`globalization has improved.
`copyrightlaw still
`preserves more differences than other common law countries when compared
`to the European
`
`to decide over an
`
`ofthe
`
`copyright laws, from which the Brazilian copyright law derives. For instance, the United States
`as
`
`laws conceptualize copyright broadly
`property while the civil law countries apply the dualism of
`the original French system, which comprises both economicandthe so-called “moral rights”. Those
`
`
`
`

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`Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 4 of 5
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`Case 5:11-cv-02959-EJD Document 36 ‘Filed 08/10/11 Page 4 of 5
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`originality,
`
`confront
`
`always
`
`different approachesbear on the application ofbasic copyright concepts, such as
`authorship and limiting doctrines.
`out on the question of originality particularly:
`As one scholar pointed
`11.
`“Do suchcriteria oforiginality and creativity, although abstractlyformulatedin
`body oflaw to another, lead to much the sameresults
`one
`language that varies
`from
`when appliedto concrete cases? It would seem so in the most
`ordinary and easy
`as one moves on
`to answer this question
`cases, but it becomes increasingly difficult
`difficult cases, especially those involving types ofproductionsthat courts
`to
`Nor do the results in these borderline cases
`as matters
`offirst impression.
`in legalcriteria, but rather on
`on express differences
`often-implicit
`or,still less clearly, ofculture and tastes”. Paulo Edward Geller,
`judgments ofpolicy
`Intemational Copyright: An Introduction § 2[2][c][i}, in Intemational Copyright Law
`and Practice (Paul Edward Geller ed., Lexis Nexis 2010),
`There are additional significant differences between the copyright laws of Brazil and
`typical of the common law systems. While comparable
`the United States. Equitable defenses are
`doctrines may beavailable in civil law countries, the history of the Brazilian case law has shown a
`pattern ofprotectionism towards authors in infringementactionsthatonly recently has been
`weakened. Fair use defense is framed in
`terms underthe United States Copyright Act,
`open-ended
`as the European and Latin American countries, adopts the closed-list system and
`a restrictive analysis. In case of violation of the copyright moral rights
`generally enforces it through
`a
`the Brazilian courts have granted the so-called moral damages,
`monetary award that goes beyond
`But courts are not as generous in granting
`copyright royalties and other economic compensation.
`such award as would a United States court do.
`
`depend
`
`12,
`
`but Brazil,
`
`13.
`
`lunderstand that Vostu claims that its games are hosted on servers that are located
`within the United States. In my opinion, the location of Vostu’s servers has no
`legal
`the Brazilian Action because Vostu’s infringing games are directed toward, and displayed to,
`
`relevance in
`
`users
`
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`Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 5 of 5
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`Case 5:11-cv-02959-EJD Document 36 Filed 08/10/11 Page 5of5
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`||in Brazil. It would be contrary to Brazilian law and public policy if a company such as Vostu could
`evade Brazilian copyright law simply by hostingits infringing materialoutside ofBrazil.
`
`I declare under penalty ofperjury underthe Jaws of the United States of Americathat the
`foregoing is true and correct.
`
`Executedthis g day ofAugust, 2011, at LB
`
`eubeSPBane
`
`Prof, ManoelJ. Pereira dos Santos, Ph.D.
`
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