Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 1 of 15
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`Civil Action No. 12-CV-1543 (AJN)
`[rel. 12-CV-1540 (AJN)]
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`ECF CASE
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`WNET, THIRTEEN, FOX TELEVISION
`STATIONS, INC., TWENTIETH CENTURY
`FOX FILM CORPORATION, WPIX, INC.,
`UNIVISION TELEVISION GROUP, INC.,
`THE UNIVISION NETWORK LIMITED
`PARTNERSHIP, and PUBLIC
`BROADCASTING SERVICE,
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`
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`Plaintiffs/Counterclaim Defendants,
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`v.
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`AEREO, INC., f/k/a BAMBOOM LABS, INC.,
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` Defendant/Counterclaim Plaintiff.
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`REPLY MEMORANDUM IN SUPPORT OF DEFENDANT AEREO, INC.’S
`MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 2 of 15
`Case 1:12—cv—01543—AJN Document 64
`Filed 04/23/12 Page 2 of 15
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`TABLE OF CONTENTS
`TABLE OF CONTENTS
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`INTRODUCTION ...........................................................................................................................1
`INTRODUCTION ......................................................................................................................... ..1
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`ARGUMENT .................................................................................................................................2
`ARGUMENT ............................................................................................................................... ..2
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`I.
`I.
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`II.
`II.
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`III.
`III.
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`REGULATION OF PRIVATE PERFORMANCES IS PREEMPTED BY THE
`REGULATION OF PRIVATE PERFORMANCES IS PREEMPTED BY THE
`CLEAR LANGUAGE OF SECTION 301. .........................................................................2
`CLEAR LANGUAGE OF SECTION 301. ....................................................................... ..2
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`PLAINTIFFS MISSTATE SECOND CIRCUIT LAW.......................................................6
`PLAINTIFFS MISSTATE SECOND CIRCUIT LAW..................................................... ..6
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`PERMITTING STATES TO REGULATE PRIVATE PERFORMANCE
`PERMITTING STATES TO REGULATE PRIVATE PERFORMANCE
`CONFLICTS WITH THE PURPOSES OF THE COPYRIGHT ACT...............................8
`CONFLICTS WITH THE PURPOSES OF THE COPYRIGHT ACT. ............................ ..8
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`CONCLUSION..............................................................................................................................10
`CONCLUSION ............................................................................................................................ ..10
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`i
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 3 of 15
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Am. Soc’y of Composers, Authors, & Publishers v. Pataki,
`930 F.Supp. 873 (S.D.N.Y. 1996)............................................................................................10
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`Barclays Capital Inc. v. Theflyonthewall.com, Inc.,
`650 F.3d 876 (2d Cir. 2011)...............................................................................................1, 7, 9
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`Computer Assocs. Int’l, Inc. v. Altai, Inc.,
`982 F.2d 693 (2d Cir. 1992).......................................................................................................5
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`Harper & Row Publishers, Inc. v. Nation Enters.,
`723 F.2d 195 (2d Cir. 1983)...................................................................................................2, 7
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`National Basketball Ass’n v. Motorola,
`105 F.3d 841 (2d Cir. 1997)...................................................................................................2, 7
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`Sony Corp. of America v. Universal City Studios,
`464 U.S. 417 (1984).................................................................................................................10
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`STATUTES
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`17 U.S.C. § 301...................................................................................................................... passim
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`OTHER AUTHORITIES
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`BRUCE P. KELLER ET AL., COPYRIGHT LAW: A PRACTITIONER’S GUIDE (2012) ..........................7, 8
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`MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT (2011) ....................................6
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`AMERICAN HERITAGE COLLEGE DICTIONARY (3d ed. 1997) ...........................................................3
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`H.R. Rep. No. 94-1476 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 ................................ passim
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`ii
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 4 of 15
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`INTRODUCTION
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`The Fox Plaintiffs acknowledge in their opposition that their “alternative” claim for
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`unfair competition rests on the same factual allegations that purportedly give rise to their
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`copyright claim, yet they argue that this Court should not find the claim preempted. Incredibly,
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`they urge this Court to hold that “state laws relating to non-public performance are not
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`preempted.” Plaintiffs’ Mem. in Opposition to Aereo’s Motion for Partial Judgment on the
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`Pleadings (hereinafter, “Opp.”) at 2. According to Plaintiffs, preemption under the Copyright
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`Act is quite narrow, and stops at the precise limits of those acts that would actually infringe the
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`public performance right: Ҥ 301 ties the limits of preemption to the exclusive rights specified in
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`§ 106.” Id.
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`Plaintiffs’ reading of the Copyright Act is flatly wrong as a matter of plain language, and
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`would lead to absurd results, obviously in conflict with the structure and intent of the Copyright
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`Act. First, Plaintiffs’ argument ignores the plain language of § 301, which extends preemption to
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`those legal rights that are equivalent to the exclusive rights “within the general scope of
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`copyright as specified by section 106” 17 U.S.C. § 301(a) (emphasis added). The Plaintiffs
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`ignore the words “general scope,” but by its express terms § 301’s preemption is not limited, as
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`the Plaintiffs argue, to the specific scope of what is expressly protected by copyright. The
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`Plaintiffs’ argument would render the “general scope” language meaningless.
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`Plaintiffs’ position is also inconsistent with the rulings of the Second Circuit. Those
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`rulings simply do not support Plaintiffs’ contention that preemption only applies where the acts
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`at issue “would infringe” one of the express § 106 rights. To the contrary, the Plaintiffs’ reading
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`of § 301 would have led to different outcomes in both Barclays Capital Inc. v.
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`Theflyonthewall.com, Inc., 650 F.3d 876 (2d Cir. 2011) and Nat’l Basketball Ass’n v. Motorola,
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`1
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 5 of 15
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`Inc., 105 F.3d 841 (2d Cir. 1997), as in each of those cases the acts at issue did not infringe any
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`of the § 106 rights, yet preemption still applied. And indeed, the Second Circuit in NBA
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`expressly noted that the Copyright Act’s preemption provision extended to preventing “‘state
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`protection of material not meeting federal statutory standards.’” 105 F.3d 841, 849 (quoting
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`Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d 195, 200 (2d Cir. 1983) rev’d on
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`other grounds by 471 U.S. 539 (1985)).
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`Finally, the folly of the Fox Plaintiffs’ position can be seen in the practical implications
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`of their assertion that any “private performance” of copyrighted material is fair game for state
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`regulation. For example, if states are free to regulate private performances, states could force
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`individuals to obtain a license any time they sit in their living room and “privately perform” a
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`television program; states could require consumers to pay royalties every time they watch a
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`DVD; or even (as absurd as it seems) require an accounting every time a mother sings a
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`copyrighted song to her child. This would directly conflict with Congress’s stated intent to
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`create a clear, uniform, national regime regulating the rights of authors in copyrighted works.
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`Accordingly, Plaintiffs’ unfair competition claim is preempted.
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`ARGUMENT
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`I.
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`
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`Regulation of Private Performances Is Preempted By The Clear Language Of
`Section 301.
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`Section 301(a) preempts “all legal or equitable rights that are equivalent to any of the
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`exclusive rights within the general scope of copyright.” 17 U.S.C. § 301(a) (emphasis added).
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`Contrary to the Fox Plaintiffs’ argument, the scope of Section 301 preemption does not end at
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`the exact boundary of those rights that were expressly granted to copyright holders in Section
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`106. Rather, it applies to all state law rights within the “general scope” of copyright—including
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`those rights that Congress decided not to convey. The Fox Plaintiffs’ argument that Section 301
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`2
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 6 of 15
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`only preempts claims based on conduct that constitutes a copyright violation would write the
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`word “general” right out of the statute. Reading Section 301(a) as a whole, it is clear that the
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`term “general”—which means “concerned with . . . or affecting the whole or every member of a
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`class or category,” or “[n]ot limited in scope, area, or application” (AMERICAN HERITAGE
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`COLLEGE DICTIONARY (3d ed. 1997))—must be construed to modify the “scope” of copyright.
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`Thus the statute preempts not only the rights that are equivalent to the “specific” copyright rights
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`that are enumerated in Section 106, but also any rights within the “general scope” of copyright—
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`for example, rights to control performances of copyrighted works, whether public or private.
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`This is the only interpretation of Section 301 that is supported by the legislative history.
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`Congress’s intent in enacting Section 301 could not have been clearer:
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`[S]ection 301 is intended to be stated in the clearest and most unequivocal
`language possible, so as to foreclose any conceivable misinterpretation of its
`unqualified intention that Congress shall act preemptively, and to avoid the
`development of any vague borderline areas between State and Federal
`protection.
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`H.R. Rep. No. 94-1476, at 130 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5746 (emphasis
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`added). To allow the Fox Plaintiffs to assert a state law unfair competition claim based on
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`private performances of copyrighted works, where Congress expressly declined to grant any such
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`rights to copyright holders, would reintroduce exactly the “vague borderline areas between State
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`and Federal protection” that Congress eliminated over thirty-five years ago.
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`Moreover, Congress expressly acknowledged that the effect of Section 301 would be to
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`prohibit state laws—such as those governing private performances of copyrighted works—that
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`grant rights broader than what is available to copyright owners under federal copyright law:
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`The preemption of rights under State law is complete with respect to any work
`coming within the scope of the bill, even though the scope of exclusive rights
`given the work under the bill is narrower than the scope of common law rights in
`the work might have been.
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`3
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 7 of 15
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`Id. at 131. The Fox Plaintiffs argue that this language was part of a discussion about only the
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`“subject matter” requirement, because the preceding and following paragraphs do not concern
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`the “general scope” requirement.1 Opp. at 16. Plaintiffs’ argument is wrong. This cited passage
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`is plainly discussing the “scope” of the federal copyright rights; Congress clearly states that
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`preemption is complete even if “the scope of exclusive rights given the work under the bill”
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`(that is, the scope of rights granted under Section 106) is “narrower than the scope of common
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`law rights in the work”—thus acknowledging that even for a work that is protected by federal
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`copyright law, preemption may operate to deprive that work of broader protection that might
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`have been granted by state law in the absence of preemption. See H.R. Rep. No. 94-1476, at 131
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`(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5747 (emphases added).
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`The Fox Plaintiffs’ reliance on Section 301(b) to justify their flawed reading of the
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`preemption statute is equally tortured. Section 301(b) states:
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`Nothing in this title annuls or limits any rights or remedies under the common law
`or statutes of any State with respect to—
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`(1) subject matter that does not come within the subject matter of copyright as
`specified by sections 102 and 103, including works of authorship not fixed in any
`tangible medium of expression; or
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`. . .
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`(3) activities violating legal or equitable rights that are not equivalent to any of the
`exclusive rights within the general scope of copyright as specified by section
`106.
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`17 U.S.C. § 301(b) (emphasis added).
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`Plaintiffs claim that subsection (b)(3) saves a state law claim from preemption if it
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`“concerns activities that do not violate the exclusive rights within the scope of copyright
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`1
`The prior paragraph concerns works falling outside of sections 102 and 103, and the following paragraph
`concerns the practical problems posed by preemption, such as having to obtain registrations and sue in federal,
`rather than state court. See id.
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`4
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`specified in § 106.” Opp. at 4-5 (emphasis added). But that is not what the statute says. Rather,
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`subsection (b)(3) allows claims to survive if they are based on “activities violating legal or
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`equitable rights that are not equivalent to any of the exclusive rights within the general scope of
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`copyright as specified by section 106.” 17 U.S.C. § 301(b)(3) (emphasis added). Section
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`301(b) “represents the obverse of subsection (a)”: “Its purpose is to make clear . . . that
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`preemption does not extend to causes of action, or subject matter outside the scope of the
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`revised Federal copyright statute.” H.R. Rep. No. 94-1476, at 131 (1976), reprinted in 1976
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`U.S.C.C.A.N. 5659, 5747 (emphasis added). By its plain language, this section merely allows
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`states to act in areas outside “the general scope of copyright”; it does not, as Plaintiffs claim,
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`open the door for state law claims based on any activities that do not violate the exclusive rights
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`in Section 106. As Congress explained in the legislative history for Section 301, subsection
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`(b)(3) was intended to protect states’ ability to provide “rights and remedies that are different in
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`nature from the rights comprised in a copyright.” Id. at 132 (emphasis added).2
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`Plaintiffs’ reading of subsection (b)(3) as permitting state law claims based on any
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`activities that do not violate copyright law is also undermined by Plaintiffs’ own admission that
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`copyright preemption extends to claims based on material that is not protected by federal
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`copyright law. See, e.g., Opp. at 6 (“Because the subject matter requirement focuses on the work
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`as a whole, it is met even when the particular material that is copied from an original work of
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`authorship is not itself protected by copyright, such as the facts taken from copyrighted works
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`that were at issue in Theflyonthewall.com and NBA.”). If Plaintiffs’ reasoning were applied to
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`Section 301(b)(1), which permits state law claims based on “subject matter that does not come
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`2
`As discussed in Section II, the Second Circuit developed the “extra element” test to determine whether a
`state law claim survives preemption because it is “different in nature” from copyright and thus outside the “general
`scope” of copyright. Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir. 1992) (“A state law claim
`is not preempted if the ‘extra element’ changes the ‘nature of the action so that it is qualitatively different from a
`copyright infringement claim.’”) (internal citation omitted) (emphasis in original).
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`5
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`within the subject matter of copyright as specified by sections 102 and 103,” then subsection
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`(b)(1) should permit state law claims pertaining to works that do not meet the requirements of
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`Sections 102 and 103. As Plaintiffs concede, that is plainly not the case. Opp. at 6-7, 20.
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`Plaintiffs try to make much of the fact that a previous version of Section 301(a) referred
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`to “all rights in the nature of copyright” rather than “all legal or equitable rights that are
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`equivalent to any of the exclusive rights within the general scope of copyright,” also to no avail.
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`See Opp. at 18. As explained in Nimmer, even in that earlier version of the statute, Section
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`301(b) provided that there would be no preemption of claims based on “activities violating rights
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`that are not equivalent to any of the exclusive rights within the general scope of copyright as
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`specified by Section 106,” and the subsequent change to Section 301(a) was done merely so that
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`subsection (a) could track the language of subsection (b). MELVILLE B. NIMMER & DAVID
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`NIMMER, NIMMER ON COPYRIGHT § 1.01[B][1], n. 48 (2011).3
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`II.
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`Plaintiffs Misstate Second Circuit Law.
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`Plaintiffs also misstate Second Circuit case law as holding that only those actions which
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`are found to infringe one of the rights under § 106 can be preempted. Plaintiffs fixate on a single
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`phrase found in the Second Circuit cases including Theflyonthewall.com, to the effect that
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`copyright law “preempts only those state law rights that ‘may be abridged by an act which, in
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`and of itself, would infringe one of the exclusive rights’ provided by federal copyright law.”
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`Opp. at 7 (emphasis by Plaintiffs). They argue from this language that the Second Circuit
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`established an absolute legal standard that limits preemption to cases where copyright law
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`already provides a remedy to the copyright owner. Id. Plaintiffs, however, have not cited to a
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`single Second Circuit case, or a case from any other jurisdiction, in which preemption was not
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`3
`Indeed, while Professor Nimmer recognized that someone could theoretically make the argument that the
`Fox Plaintiffs make, he viewed it as so weak that he still highlighted state action regulating “private performances”
`as a quintessentially preempted state law. Id.
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`6
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 10 of 15
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`found merely because a copyright claim based on identical facts failed. Plaintiffs’ reading of
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`Second Circuit case law is not only wrong, it is also contradicted by the very cases Plaintiffs rely
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`on.
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`Other Second Circuit cases make clear that preemption does not stop at the limits of the
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`Copyright Act. For example, in NBA, the Second Circuit plainly states that preemption must
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`apply to any state law claim that addresses the same general subject matter as the Section 106
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`rights of copyright because otherwise “states would be free to expand the perimeters of copyright
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`protection to their own liking, on the theory that preemption would be no bar to state protection
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`of material not meeting federal statutory standards.” 105 F.3d at 849 (quoting Harper & Row
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`Publishers, Inc., 723 F.2d at 200 (2d Cir. 1983)).
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`The facts of Theflyonthewall.com and NBA further illustrate the point that Plaintiffs read
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`unintended meaning into the phrase “in and of itself.” See Opp. at 10. In both cases the Second
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`Circuit found that the plaintiffs’ state law claims were preempted—even though the conduct
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`underlying those claims did not infringe any of the Section 106 rights. See, e.g., NBA, 105 F.3d
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`at 847; Theflyonthewall.com, 650 F.3d at 902. Under Plaintiffs’ reading of the above language,
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`the state law claims in both of these cases should not have been preempted—and yet they were,
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`because they did not contain an “extra element” that took them out of the “general scope” of
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`copyright. Under the proper application of Section 301, however, the result in those cases—as
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`the result should be here—was that the state law claim was preempted and plaintiffs were left
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`without a remedy because the defendants did not infringe any of the rights in Section 106.4
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`4
`While not entirely clear, the language Plaintiffs focus on seems to concern a different, but related, concept:
`the extra element test. The Second Circuit asks whether the state law claim can be infringed by an act that, standing
`alone, would also infringe copyright—or whether the state law claim requires something extra. Thus, what
`Plaintiffs have tried to portray as an irrelevant exception—the “extra element” test—is actually the Second Circuit’s
`application of the “general scope” requirement in Section 301:
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`7
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 11 of 15
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`In short, Plaintiffs’ unfair competition claim here is based on the alleged commercial
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`exploitation of Plaintiffs’ copyright programming by providing performances of that
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`programming to customers. See Complaint ¶ 61. Plaintiffs have acknowledged in their
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`opposition that there are no “additional facts” that form the basis of their unfair competition
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`claim but rather the “alternative” claim for unfair competition is based on the same factual
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`allegations and circumstances as form the alleged basis for the copyright claim. Opp. at 1.
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`There is no “extra element” that makes this claim “qualitatively different” from Plaintiffs’
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`copyright claim; indeed, the two claims are based on identical allegations.5 Moreover, the
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`“right” asserted by the Fox Plaintiffs (i.e. the alleged “right” not to have Aereo “compete”6 with
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`the Fox Plaintiffs by performing their works) may be abridged by an act which, by itself, would
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`violate one of the Section 106 rights—namely, the act of publicly performing the works. In fact,
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`Plaintiffs’ primary allegation in this case is that Aereo’s actions infringe their right of public
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`performance. It is thus within the “general scope” of copyright and is preempted.
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`Permitting States To Regulate Private Performance Conflicts With The Purposes Of
`The Copyright Act.
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`Finally, to allow Plaintiffs’ unfair competition claim to proceed would undermine a
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`III.
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`fundamental purpose of the 1976 Copyright Act, which was to create a single, comprehensive,
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`nationwide system governing the rights of authors in their works. As Congress stated, “[b]y
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`When performing the second step of the preemption analysis, courts often confront difficult issues
`in determining whether a claim seeks to vindicate rights that “are equivalent to” one of the
`copyright owner’s exclusive rights. To grapple with that, they have developed what is known as
`the “extra-element” test to ascertain whether the state-law cause of action is, in fact, “qualitatively
`different” from a claim of copyright infringement. If it is not, the claim will be preempted.
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`BRUCE P. KELLER ET AL., COPYRIGHT LAW: A PRACTITIONER’S GUIDE § 11.3.3 (2012); see also id. at § 2:13.2.
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` 5
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` Notably, Plaintiffs do not claim any extra element in their opposition.
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`6
`The Fox Plaintiffs do not explain how Aereo “competes” with them when it merely allows consumers to
`view the over-the-air broadcasts they are entitled to receive.
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`8
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`substituting a single Federal system for the present anachronistic, uncertain, impractical, and
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`highly complicated dual system, the bill would greatly improve the operation of the copyright
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`law and would be much more effective in carrying out the basic constitutional aims of uniformity
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`and the promotion of writing and scholarship.” H.R. Rep. No. 94-1476, at 129 (1976), reprinted
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`in 1976 U.S.C.C.A.N. 5659, 5745. The creation of a uniform system was particularly important
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`in light of speed and ease with which copyrighted works could be widely disseminated. See id.
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`To allow states to regulate private performances of copyrighted works because Congress
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`had determined not to grant that right to copyright owners would wreak havoc on the
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`comprehensive national regime that was carefully created by Congress. Under the Plaintiffs’
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`theory, even though Congress has expressly determined that copyright owners do not have the
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`right to prevent private performances of their copyrighted works, states would be free to
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`(1) mandate a viewing license for individuals who wish to watch television programs in their
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`own living room; (2) establish a royalty system that charges a consumer each time he or she
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`plays a DVD; (3) require a payment by each commuter who listens to the radio in his or her car
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`on the way to work; (4) require that an individual art collector purchase a license to display, in
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`his or her own home, each work of art that he or she owns; and (5) charge aspiring actors a fee
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`each time they rehearse a copyrighted work in their own homes, with no audience but
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`themselves.7
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`These are precisely the types of absurd results that the Copyright Act was intended to
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`eliminate, and any state regulation that allows for this uncertainty undermines the fundamental
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`7
`Under Plaintiffs’ system, each state would also be free to determine how, and the extent to which, they
`regulate private performances or display of copyrighted works. Thus, a college student may be free to listen to
`music that he purchased and downloaded onto a music player while he is studying in his dorm room in Florida, but
`he may have to pay license fees to do the same if he is visiting his parents in New York. Parents who give their
`children a DVD to watch in the car on road trips may have to pay royalties on part of that viewing depending on
`when they cross state lines.
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`9
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 13 of 15
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`purpose of the Copyright Act. See Theflyonthewall.com, 650 F.3d at 898 (“It is this sort of
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`patchwork protection that the drafters of the Copyright Act preemption provisions sought to
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`minimize, and that counsels in favor of locating only a ‘narrow’ exception to Copyright Act
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`preemption.”). Thus, if state law “hinder[s] the realization of the federal copyright scheme,”
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`whether or not it falls within an express preemption statute, it is preempted because it “stands as
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`an ‘obstacle to the accomplishment and execution of the full purposes and objectives of
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`Congress.’” Am. Soc’y of Composers, Authors, & Publishers v. Pataki, 930 F. Supp. 873, 878
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`(S.D.N.Y. 1996) (internal citations omitted) (where law requiring notice of copyright
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`investigation hindered plaintiff’s ability to enforce its members’ copyrights, plaintiff was entitled
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`to preliminary injunction as it was likely to succeed on its argument that the law was
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`preempted).8
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`CONCLUSION
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`For the foregoing reasons, Aereo respectfully requests that this Court dismiss the Fox
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`Plaintiffs’ unfair competition claim (Count III), with prejudice.
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`8
`Plaintiffs also assert with false confidence, that “Congress plainly did not intend to give immunity to any
`kind of blatant commercial exploitation of Plaintiffs’ original works of authorship” and that “[t]he very idea that a
`mass-marketed subscription service for performing copyrighted works might arguably fall outside the ambit of the
`public performance right under § 106 would have been inconceivable to Congress.” Opp. at 2 n.1; 9. But Plaintiffs
`cite no authority whatsoever for their assertions of Congressional intent. That is because Plaintiffs’ argument
`amounts to the assertion that states may regulate private performances if there is some sort of (undefined)
`“commercial exploitation” included, and such an argument is clearly wrong. Indeed, Sony Corp. of America v.
`Universal City Studios, 464 U.S. 417 (1984), is based on the fundamental assumption that Congress did not intend to
`preclude commercial entities like Sony and Aereo from building a business based on facilitating and enabling
`consumers’ exercise of their fair use rights. Plaintiffs’ theory of unfair competition would upset this balance, and
`undermine the federal system of copyright that Congress carefully crafted.
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 14 of 15
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`Dated: April 23, 2012
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`Respectfully submitted,
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`AEREO, INC.
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`By its attorneys,
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`/s/ R. David Hosp
`R. David Hosp (DH 3344)
`John C. Englander (admitted pro hac vice)
`Mark S. Puzella (admitted pro hac vice)
`Yvonne W. Chan (admitted pro hac vice)
`GOODWIN PROCTER LLP
`Exchange Place
`Boston, MA 02109
`617.570.1000 (tel.)
`617.523.1231 (fax)
`rhosp@goodwinprocter.com
`jenglander@goodwinprocter.com
`mpuzella@goodwinprocter.com
`ychan@goodwinprocter.com
`Seth Greenstein (admitted pro hac vice)
`CONSTANTINE | CANNON, LLP
`One Franklin Square
`1301 K Street, NW, Suite 1050 East
`Washington, DC 20005
`202.204.3514 (tel.)
`202.204.3500 (fax.)
`sgreenstein@constantinecannon.com
`Michael S. Elkin
`Thomas Patrick Lane
`WINSTON & STRAWN LLP
`200 Park Avenue
`New York, New York 10166
`212.294.6700 (tel)
`212.294.4700 (fax)
`melkin@winston.com
`tlane@winston.com
`Jennifer A. Golinveaux (admitted pro hac vice)
`WINSTON & STRAWN LLP
`101 California Street
`San Francisco, California 94111
`415.591.1000 (tel)
`415.591.1400 (fax)
`jgolinveaux@winston.com
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`Case 1:12-cv-01543-AJN Document 64 Filed 04/23/12 Page 15 of 15
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`CERTIFICATE OF SERVICE
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`I hereby certify that the foregoing document filed through the ECF system will be sent
`electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
`and paper copies, via first class mail, postage pre-paid, will be sent to those indicated as non
`registered participants on April 23, 2012.
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`/s/ R. David Hosp
`R. David Hosp
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`12