Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 1 of 31 ) ) ) ) ) ) ) ) ) ) )

Transcription

1 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 1 of 31 PUBLIC VERSION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK HARPERCOLLINS PUBLISHERS LLC, Plaintiff, v. OPEN ROAD INTEGRATED MEDIA, LLP, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:11-cv NRB MEMORANDUM OF LAW IN SUPPORT OF HARPERCOLLINS PUBLISHERS LLC S MOTION FOR A PERMANENT INJUNCTION, STATUTORY DAMAGES, ATTORNEYS FEES, AND COSTS

2 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 2 of 31 TABLE OF CONTENTS Page PRELIMINARY STATEMENT...1 BACKGROUND...2 A. Factual Background and the Parties Arguments...2 B. The Court s Summary Judgment Ruling...5 C. Open Road s Subsequent Conduct...7 ARGUMENT...7 I. THE COURT SHOULD ENTER A PERMANENT INJUNCTION...7 II. III. HARPERCOLLINS IS ENTITLED TO A MAXIMUM STATUTORY DAMAGE AWARD, ENHANCED DUE TO OPEN ROAD S CONTINUED WILLFUL INFRINGEMENT...12 THE COURT SHOULD GRANT HARPERCOLLINS ITS REASONABLE ATTORNEYS FEES...17 A. An Award of Attorneys Fees Is Warranted...17 B. The Amount of Fees Requested Is Reasonable...21 IV. THE COURT SHOULD AWARD HARPERCOLLINS FULL COSTS...23 CONCLUSION...25 i

3 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 3 of 31 TABLE OF AUTHORITIES Page(s) Cases 16 Casa Duse, LLC v. Merkin, No. 12 Civ (RJS), 2013 WL (S.D.N.Y. Sept. 27, 2013)...18, 20 All-Star Mktg. Group, LLC v. Media Brands Co., Ltd., 775 F. Supp. 2d 613 (S.D.N.Y. 2011)...13 Arbor Hill Concerned Citizens Neighborhood Ass n v. Cnty. of Albany, 522 F.3d 182 (2d Cir. 2008)...21, 22 Arista Records LLC v. Usenet.com, Inc., No. 07 Civ (HB)(THK), 2010 WL (S.D.N.Y. Feb. 2, 2010), report and recommendation adopted, No. 07 Civ. 8822(HB), 2010 WL (S.D.N.Y. Sept. 16, 2010)...15, 16 Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)...24 Barrera v. Brooklyn Music, Ltd., 346 F. Supp. 2d 400 (S.D.N.Y. 2004)...23, 24 BBY Solutions v. Schwartz, No. 11 Civ. 0947(ADS)(ETB), 2011 WL (E.D.N.Y. Nov. 17, 2011)...21 Boosey & Hawkes Music Publ rs, Ltd. v. Walt Disney Co., 145 F.3d 481 (2d Cir. 1998)...6, 19 Bryant v. Media Right Prods., Inc., 603 F.3d 135 (2d Cir. 2010)...13 Complex Sys., Inc. v. ABN Amro Bank N.V., No. 08 Civ (KBF), 2014 U.S. Dist. LEXIS (S.D.N.Y. May 9, 2014)...9, 10, 11 Contractual Obligation Prods., LLC v. AMC Networks, Inc., 546 F. Supp. 2d 120 (S.D.N.Y. 2008)...18 Crescent Publ g Group, Inc. v. Playboy Enters., Inc., 246 F.3d 142 (2d Cir. 2001)...21 ebay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)...8 ii

4 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 4 of 31 TABLE OF AUTHORITIES (cont d) Page(s) Cases EMI April Music Inc. v. 4MM Games, LLC, No. 12 Civ (DLC)(JLC), 2014 WL (S.D.N.Y. Jan. 13, 2014), report and recommendation adopted, No. 12 Civ. 2080(DLC), 2014 WL (S.D.N.Y. Apr. 7, 2014)... passim Farberware Licensing Co. LLC v. Meyer Marketing Co., Ltd., No. 09 Civ (HB), 2009 WL (S.D.N.Y. Dec. 30, 2009), aff d, 428 F. App x 97 (2d Cir. 2011)...23 Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)...17, 18 Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992)...22 Harrell v. Van Der Plas, No. 08 Civ (GEL), 2009 WL (S.D.N.Y. Nov. 9, 2009)... passim Hensley v. Eckerhart, 461 U.S. 424 (1983)...21 Hounddog Prods., L.L.C. v. Empire Film Group, Inc., 826 F. Supp. 2d 619 (S.D.N.Y. 2011)...8 LaSalle Bank Nat l Ass n v. Nomura Asset Capital Corp., 424 F.3d 195 (2d Cir. 2005)...19 LeBlanc-Sterling v. Fletcher, 143 F.3d 748 (2d Cir. 1998)...24 Matthew Bender Co., Inc. v. West Publ g Co., 240 F.3d 115 (2d Cir. 2001)...17, 18 Microsoft Corp. v. AGA Solutions, Inc., No. 05 Civ. 5769(DRH)(MLO), 2010 WL (E.D.N.Y. Mar. 22, 2010)...14 Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235 (S.D.NY. 1993)...24 Miroglio S.P.A. v. Conway Stores, Inc., 629 F. Supp. 2d 307 (S.D.N.Y. 2009)...13, 18, 20 MiTek Holdings, Inc. v. Arce Eng g Co., 198 F.3d 840 (11th Cir. 1999)...18 iii

5 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 5 of 31 TABLE OF AUTHORITIES (cont d) Page(s) Cases Muller v. Twentieth Century Fox Film Corp., No. 08 Civ (DC), 2011 WL (S.D.N.Y. Aug. 22, 2011)...21 N.Y. State Ass n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983)...23 Nat l Football League v. Primetime 24 Joint Venture, No. 98 Civ. 3778LMM, 1999 WL (S.D.N.Y. Sept. 27, 1999)...11 Omega Importing Corp. v. Petri-King Camera Co., 451 F.2d 1190 (2d Cir. 1971)...16 Pannonia Farms, Inc. v. USA Cable ( Pannonia I ), No. 03 Civ. 7841(NRB), 2004 WL (S.D.N.Y. June 8, 2004)...17 Pannonia Farms, Inc. v. USA Cable ( Pannonia III ), No. 03 Civ. 7841(NRB), 2006 WL (S.D.N.Y. Oct. 5, 2006)...17, 21, 23 Paramount Pictures Corp. v. Carol Publ g Group, 11 F. Supp. 2d 329 (S.D.N.Y. 1998)...11 Pearson Educ., Inc. v. Ishayev, 963 F. Supp. 2d 239 (S.D.N.Y. 2013)...8 Pearson Educ., Inc. v. Vergara, No. 09 Civ. 6832(JGK)(KNF), 2010 WL (S.D.N.Y. Sept. 17, 2010)...9 Porto v. Guirgis, 659 F. Supp. 2d 597 (S.D.N.Y. 2009)...18 Psihoyos v. John Wiley & Sons, Inc., Nos cv(L), cv(XAP), 2014 WL (2d Cir. Apr. 4, 2014)...13 Random House, Inc. v. Rosetta Books LLC, 150 F. Supp. 2d 613 (S.D.N.Y. 2001), aff d, 283 F.3d 490 (2d Cir. 2002)... passim Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)...8, 11, 12 Scanlon v. Kessler, 23 F. Supp. 2d 413 (S.D.N.Y. 1998)...13 Silverstein v. Penguin Putnam, Inc., 368 F.3d 77 (2d Cir. 2004)...10, 11 iv

6 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 6 of 31 TABLE OF AUTHORITIES (cont d) Page(s) Cases Software Freedom Conservancy, Inc. v. Best Buy Co., Inc., No. 09 Civ (SAS), 2010 WL (S.D.N.Y. Jul. 27, 2010)...17 Syrnik v. Polones Const. Corp., No. 11 Civ. 7754(KBF), 2012 WL (S.D.N.Y. Sept. 19, 2012)...24 Tom Doherty Assoc., Inc. v. Saban Entm t., Inc., 60 F.3d 27 (2d Cir. 1995)...8 Tradescape v. Shivaram, 77 F. Supp. 2d 408 (S.D.N.Y. 1999)...8, 10 Twin Peaks Prods., Inc. v. Publ s Int l, Ltd., 996 F.2d 1366 (2d Cir. 1993)...12, 17 United States v. W.T. Grant Co., 345 U.S. 629 (1953)...10 United States Football League v. Nat l Football League, 887 F.2d 408 (2d Cir. 1989)...24 Warner Bros. Entm t Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008)...8, 10, 11, 12 Williams v. Crichton, 891 F. Supp. 120 (S.D.N.Y. 1994)...24 Statutes 17 U.S.C , 7, 8, U.S.C , 12, U.S.C passim 28 U.S.C , U.S.C Other Authorities Fed. R. Civ. P , 23, NLJ Billing Survey, NAT L L.J. (Dec. 2013)...22 v

7 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 7 of 31 Pursuant to the Court s March 14, 2014 Memorandum and Order, 17 U.S.C. 502, 504, and 505, 28 U.S.C. 1920, and Federal Rule of Civil Procedure 54(d)(1), Plaintiff HarperCollins Publishers LLC ( HarperCollins ) respectfully submits this memorandum of law in support of its motion for an award of a permanent injunction, statutory damages, attorneys fees, and costs. PRELIMINARY STATEMENT This copyright infringement action arose out of the publication by Defendant Open Road Integrated Media Inc. ( Open Road ) of an electronic edition of acclaimed children s novel Julie of the Wolves by Jean Craighead George (the Work ), despite HarperCollins exclusive right to publish or license publication of electronic editions of the Work under its 1971 agreement with George (the Agreement ). Although HarperCollins advised Open Road repeatedly that such conduct would violate HarperCollins exclusive rights, Open Road fully aware of the legal risk nevertheless proceeded to publish its e-book version of the Work in or about August In granting HarperCollins motion for summary judgment on its infringement claim and denying Open Road s cross-motion, the Court found that the Agreement unambiguously granted HarperCollins the exclusive right to license e-book versions of the Work. In so holding, the Court declined Open Road s invitation to ignore both the plain meaning of the 1971 Agreement and the interpretive principles established by this Circuit s new use precedents, which, the Court held, strongly supported HarperCollins position. Notwithstanding the Court s emphatic rejection of Open Road s arguments, Open Road to this day (more than two months later) persists in violating HarperCollins exclusive electronic rights by continuing to hold itself out as an authorized publisher of the Work. HarperCollins seeks entry of a permanent injunction to protect its exclusive rights in the Work and statutory damages of not less than $30,000 for Open Road s blatant infringement. As the prevailing party, and particularly in light of the objective unreasonableness of Open Road s

8 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 8 of 31 litigation position, HarperCollins also seeks an award of attorneys fees in the amount of $1,089, and costs in the amount of $7, As explained below and in the accompanying Declaration of R. Bruce Rich, dated May 23, 2014 ( Rich Decl. ), HarperCollins believes these remedies are necessary and appropriate to compensate it for harm sustained as the result of Open Road s infringing conduct; to prevent such conduct from continuing with respect to Julie of the Wolves and from occurring in the future with respect to that and other works; and to deter Open Road and others from acting without regard for clear grants of electronic publication rights to third parties and thereby interfering with the rightful exploitation of those rights. BACKGROUND A. Factual Background and the Parties Arguments HarperCollins learned of George s intention to enter into an agreement with Open Road, a digital book publisher, for the publication of an e-book version of Julie of the Wolves in approximately December See Rich Decl. 3. Over the ensuing months, HarperCollins repeatedly advised George and her literary agent, Ginger Knowlton of Curtis Brown, Ltd., that HarperCollins held the exclusive right to license electronic publishing rights in the Work to third parties and that any publication of the Work by Open Road would constitute copyright infringement. Id. 4, 7 & Ex. F. In a meeting between the parties counsel, HarperCollins counsel identified the specific provisions of the Agreement that unambiguously granted these rights exclusively to HarperCollins, gave Open Road fair notice of HarperCollins reservation of all its legal rights, and indicated HarperCollins intent to sue for copyright infringement should Open Road proceed with its plan to publish a Julie of the Wolves e-book. Id. 8. The relevant provisions of the Agreement granted HarperCollins the exclusive English language rights to publish the Work in book form and also granted HarperCollins the exclusive 2

9 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 9 of 31

10 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 10 of 31 take and defend six depositions. See id. 19. In addition, after Open Road insisted on submitting expert reports, HarperCollins was required to work extensively with its expert, Dr. Andries van Dam, in connection with the preparation of his responsive report. See id. 20. On March 18, 2013, the parties cross-moved for summary judgment comprising nearly 100 pages of briefing and more than 140 exhibits. Id. 21. HarperCollins motion was supported by declarations from one fact witness and one expert witness. In its summary judgment papers, Open Road argued that HarperCollins itself had not been granted the right to publish e-book versions of the Work because, according to Open Road, e-books were not encompassed by the Agreement s broad grant of rights to publish the Work in book form. Dkt. 22 at This argument in addition to being irrelevant, because only HarperCollins right to license third parties was at issue was premised on the factually distinguishable, more-than-decade-old case Random House, Inc. v. Rosetta Books LLC, 150 F. Supp. 2d 613 (S.D.N.Y. 2001), aff d, 283 F.3d 490 (2d Cir. 2002). See Dkt. 22 at In that case, the district court refused to enjoin another e-book publisher, Rosetta Books, from publishing novels to which Random House held the rights to print, publish and sell in book form ; none of the publishing contracts at issue in that case mentioned electronic publication. Concerning the salient portions of Paragraph 20 of the Agreement, Open Road urged the Court to effectively rewrite it by striking the and/or so that the language concerning information and storage and retrieval systems was merely modified by the remainder of the provision whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented rather than the electronic means clause having independent significance. See Dkt. 35 at So interpreted, Open Road maintained that Paragraph 20 did not compass e-books because information and storage and retrieval systems 4

11 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 11 of 31 was limited to systems in which books and other publications would be analyzed, indexed, classified, and abstracted, including by computers. Dkt. 22 at 21; Dkt. 25 (Declaration of Michael J. Boni In Support of Defendant Open Road s Motion for Summary Judgment) Ex. 33 (Amended Declaration and Expert Report of David Farber ( Farber Decl. )) 18. Such systems, Open Road contended, were confined to the functional equivalent of a more advanced library card retrieval system. Farber Decl. 18. B. The Court s Summary Judgment Ruling On March 14, 2014, the Court granted HarperCollins motion for summary judgment and denied Open Road s cross-motion for summary judgment. In doing so, the Court squarely rejected each of Open Road s arguments. Dkt. 46. First, the Court rejected Open Road s attempt to redirect the Court s attention away from Paragraph 20 to Paragraph 1 and to Rosetta Books a case that, the Court noted, did not directly address the issues in this case. Id. at 20. The Court found that the Agreement s broad and unqualified grant to HarperCollins of the right to publish the Work in book form was distinguishable from the arguably more limited print, publish and sell grant language that Rosetta Books had successfully argued denoted a paper copy. Id. at 16 (emphasis added). 3 The Court determined, however, that it did not need to decide whether the in book form grant by itself covered e-book publication rights because Paragraph 20 left no doubt that HarperCollins held the exclusive right to license third parties to publish electronic editions of the Work. Paragraph 20, the Court explained, explicitly grant[ed] HarperCollins certain rights 3 The Court s suggestion that Open Road s attempt to avoid Paragraph 20 was disingenuous (see id. at 20 (attributing Open Road s focus on Paragraph 1 to its apparent[] recogni[tion of] the breadth of the language in Paragraph 20 )) is bolstered by the fact that Open Road s counsel, who also was counsel to Rosetta Books, argued in Rosetta Books that e-book rights had not been conveyed to Random House because none of the contracts anywhere addressed electronic rights. See Dkt. 23 Ex. 46 at The Agreement contains the very reference to electronic rights that Open Road s counsel thus recognized would have dictated a different result in Rosetta Books. 5

12 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 12 of 31 associated with use by electronic means, thereby creating a critical distinction from Rosetta Books, whose contract made no mention of electronic exploitation at all. Dkt. 46 at 17. The Court further found that Paragraph 20, by encompassing the forward-looking reference to technologies now known or hereafter invented, was sufficiently broad to draw within its ambit e-book publication. Id. E-book technology, the Court stated, encompasses a laterinvented version of the very computer, computer-stored, mechanical or other electronic means provided by Paragraph 20. Id. The court held this conclusion was reinforced by this Circuit s new use cases, as the expansive contractual language in the Agreement was at least as broad as that previously found to be sufficient to encompass a later-developed new use. Id. at 18. Indeed, the Court noted that by expressly providing for anticipated electronic means that might be hereafter invented, Paragraph 20 was greater in breadth with respect to new uses than contracts at issue in the new use cases that lacked such a future-use provision but nonetheless were found to be broad enough to encompass new electronic uses. Id. at To the extent Open Road did address Paragraph 20, the Court found that it attempt[ed] to rewrite it by excising the and/or language that George s own literary agent had insisted on including and by limiting its analysis to the portion of the provision addressing information and storage and retrieval systems. Id. at The Court noted that it was, in any event, far from clear that treating the electronic means language as a mere modifier would support Open Road s position, finding it plausible that storage and retrieval and information systems alone could encompass e-book technology under the new use precedents. See id. at The Court also rejected Open Road s contention that a foreseeability analysis was required as part of the new use contract assessment, noting that, contrary to Open Road s contention, whether foreseeability of the new use is required remains an open question. Id. at 25 (quoting Boosey & Hawkes Music Publ rs, Ltd. v. Walt Disney Co., 145 F.3d 481, 486 (2d Cir. 1998)). 6

13 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 13 of 31 Finally, the Court readily disposed of Open Road s remaining arguments, concluding that: Open Road s claims regarding the purported lack of a publication grant or a royalty rate in Paragraph 20 were irrelevant attempts to redirect attention to... a question not before this Court and not germane to this litigation, id. at 23; the parties course of performance under the Agreement did not favor Open Road (and in fact likely favored HarperCollins), as Open Road s only examples of George licensing electronic uses of the Work were undertaken without HarperCollins knowledge or consent, id. at 27; and Open Road s argument that subsequent contracts containing different language should bear on the construction of the 1971 Agreement had no merit, id. at 28. C. Open Road s Subsequent Conduct Despite the Court having found its publication of the Work to be infringing, Open Road continues to hold itself out to the public as an authorized publisher of the Julie of the Wolves e- book. As of the date of this motion, Open Road s website continues to invite consumers to Buy the EBook of the Work through a variety of channels, including Amazon, Apple, and Google. See Rich Decl. 15 & Ex. K. As recently as May 1, 2014 (some six weeks after this Court s summary judgment decision), the Julie of the Wolves e-book remained available for sale on each of these channels. Id. 14 & Ex. I. Even today, Google Play continues to display Open Road s version of the e-book and invites consumers to add it to their Wishlist. Id. 16 & Ex. L. Based on the Court s ruling in its favor, as well as Open Road s subsequent continued infringing conduct, HarperCollins now moves for appropriate remedies as the prevailing party in this action. ARGUMENT I. THE COURT SHOULD ENTER A PERMANENT INJUNCTION HarperCollins seeks the entry of a permanent injunction against Open Road s continuing and future infringement of HarperCollins exclusive electronic publishing rights. Section 502 of 7

14 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 14 of 31 the Copyright Act authorizes the Court to enter a final injunction on such terms as it may deem reasonable to prevent or restrain infringement of a copyright. 17 U.S.C A plaintiff seeking a permanent injunction must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. ebay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 5 HarperCollins easily meets this standard. First, there can be little question that HarperCollins will suffer irreparable harm without an injunction. Harm may be irreparable for many reasons, including that a loss is difficult to replace or difficult to measure, or that it is a loss that one should not be expected to suffer. Salinger, 607 F.3d at 81; see also Tom Doherty Assoc., Inc. v. Saban Entm t, Inc., 60 F.3d 27, 38 (2d Cir. 1995) (affirming grant of injunction based on finding that publishing company would be irreparably harmed by being prevented from taking advantage of market opportunity to which it had a right and finding damages caused by lost opportunity would be difficult to quantify); Tradescape v. Shivaram, 77 F. Supp. 2d 408, 411 (S.D.N.Y. 1999) (finding irreparable harm where long-term damage to plaintiff s market share and reputation would be impossible to quantify ); accord EMI April Music Inc. v. 4MM Games, LLC, No. 12 Civ. 2080(DLC)(JLC), 2014 WL , at *9 (S.D.N.Y. Jan. 13, 2014), report and recommendation adopted, No. 12 Civ. 2080(DLC), 2014 WL (S.D.N.Y. Apr. 7, 2014) (finding irreparable harm because, 5 Although the Second Circuit has not expressly held that the ebay standard applies to permanent injunctions in the copyright context, it has held that it applies to preliminary injunctions in copyright cases, Salinger v. Colting, 607 F.3d 68, 77 (2d Cir. 2010), and there would appear to be no basis for finding it inapplicable to a copyright permanent injunction. Indeed, courts in this District have held that it applies. See, e.g., Pearson Educ., Inc. v. Ishayev, 963 F. Supp. 2d 239, 254 (S.D.N.Y. 2013); Warner Bros. Entm t Inc. v. RDR Books, 575 F. Supp. 2d 513, (S.D.N.Y. 2008); Hounddog Prods., L.L.C. v. Empire Film Grp., Inc., 826 F. Supp. 2d 619, 632 (S.D.N.Y. 2011). 8

15 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 15 of 31 inter alia, defendant had refused to properly license works at issue, and plaintiff could not control defendant s illegal use of copyrighted works); Pearson Educ., Inc. v. Vergara, No. 09 Civ. 6832(JGK)(KNF), 2010 WL , at *4 (S.D.N.Y. Sept. 27, 2010) (finding irreparable harm based on determination that plaintiff publisher should not be expected to suffer decline in sales and profits of books due to defendant s infringement). HarperCollins plainly is suffering irreparable harm, and will continue to do so if a permanent injunction is not entered. Open Road s continued unlicensed offering and sale of the Work following the summary judgment ruling, and its ongoing representation to consumers that it is an authorized publisher of the Work, in violation of what the Court found to be HarperCollins exclusive electronic publication rights, interfere with HarperCollins ability to sell or license publication of the Work and thus its ability to take advantage of a market opportunity that it and only it is entitled to exploit. By its unlawful competition, Open Road has harmed HarperCollins to an extent that is impossible to quantify and that HarperCollins cannot control. See Complex Sys., Inc. v. ABN Amro Bank N.V., No. 08 Civ (KBF), 2014 U.S. Dist. LEXIS 64467, at *39 (S.D.N.Y. May 9, 2014) ( Direct competition may... constitute irreparable harm. ) (citation omitted). HarperCollins should not be expected to continue to incur this harm as a result of Open Road s ongoing infringing conduct. Second, HarperCollins has no adequate remedy at law. A plaintiff has no adequate remedy at law where, absent an injunction, the defendant is likely to continue the infringement. See EMI April Music, 2014 WL , at *9 (finding no evidence defendant would stop its infringing activities where it failed to cease its infringing activities even after being notified of its infringement ); Pearson Educ. v. Vergara, 2010 WL , at *4 (finding award of 9

16 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 16 of 31 monetary damages would not adequately compensate plaintiffs where there was no evidence to suggest defendant would cease infringing activity). Open Road has shown no sign it will stop its infringing conduct unless it is enjoined from doing so. Even following issuance of the Court s strongly worded summary judgment ruling, Open Road continued to make the Work available for sale through links on its website to various online retailers until at least May 1, 2014 some six weeks after the Court s ruling. Rich Decl. Ex. 14 & Ex. I. Even today, Open Road continues to represent that consumers can Buy the EBook via its website, and at least one of its vendors maintains a page dedicated to Open Road s e-book edition of the Work and permits putative purchasers to place it on their Wishlist, implicitly suggesting that the e-book will be available from Open Road in the future. Id & Exs. K-L. Hence, it is clear that if an injunction is not issued, Open Road is likely to continue infringing HarperCollins copyright rights. 6 See Warner Bros., 575 F. Supp. 2d at 553. Given the significant threat of future infringement in this case, it is apparent that HarperCollins cannot be compensated by monetary relief alone. EMI April Music, 2014 WL , at *9. 7 The principle that injunctive relief should be granted where denying it would amount to a forced license to use the creative work of another, see Silverstein v. Penguin Putnam, Inc., 368 F.3d 77, 84 (2d Cir. 2004); Complex Sys., 2014 U.S. Dist. LEXIS 64467, at *34-35, further 6 The fact that Open Road appears to have instructed its retailers to cease actually selling the Julie of the Wolves e-book does not lessen the need for a permanent injunction: Open Road s prior conduct indicates its proclivity for flouting the Court s summary judgment ruling, and voluntary cessation of illegal or infringing conduct does not prevent the granting of a permanent injunction. See, e.g., Tradescape.com, 77 F. Supp. 2d at 410 n.2 (granting permanent injunction in copyright action, noting [v]oluntary cessation of unlawful conduct alone does not moot an application for an injunction ) (citing United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). 7 HarperCollins is concerned not only with Open Road s continued infringement of its rights in Julie of the Wolves but also with protecting its rights to other works as to which it holds comparable exclusive rights. 10

17 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 17 of 31 compels entry of an injunction. Indeed, the failure to issue an injunction would be tantamount to the creation of a compulsory license, future damages... becoming a sort of royalty. Silverstein, 368 F.3d at 84; see also Paramount Pictures Corp. v. Carol Publ g Grp., 11 F. Supp. 2d 329, 338 (S.D.N.Y. 1998) (rejecting argument that damages would be sufficient remedy for infringing publication, since [a]llowing this argument to prevail would, in effect, make any copyright holder an involuntary licensor of the copyright to any entity that could be relied on to pay damages ). Such a judicially-sanctioned, involuntary license is neither a desirable practice nor consistent with the objectives of the Copyright Act. See Nat l Football League v. Primetime 24 Joint Venture, No. 98 Civ LMM, 1999 WL , at *4 (S.D.N.Y. Sept. 27, 1999). Plainly, without an injunction, HarperCollins will effectively become a forced licensor of Open Road, with any future damages obtained through litigation its only royalty. Third, the balance of hardships weighs heavily in favor of HarperCollins. The harm to HarperCollins in the absence of an injunction the deprivation of its exclusive right to publish or license publication of the Work in electronic form is clear, while any harm an injunction would cause to Open Road would consist solely of its inability to continue infringing HarperCollins copyright rights. The law does not protect this type of hardship. Warner Bros., 575 F. Supp. 2d at 553; see also Complex Sys., 2014 U.S. Dist. LEXIS 64467, at *51 (finding balance of hardships weighed in favor of permanent injunction where defendant s only hardship was being prevent[ed]... from doing that which it has no right to do ). Fourth, the public interest will be served by entry of a permanent injunction. The purpose of copyright law is to promote the store of knowledge available to the public. Salinger, 607 F.3d at 82. To the extent copyright law accomplishes this end by providing individuals a financial incentive to contribute to the store of knowledge, the public interest 11

18 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 18 of 31 may well be already accounted for by the plaintiff s interest. Id. In order to advance the public interest in access to literary works, copyright law must prevent the misappropriation of the skills, creative energies, and resources which are invested in the protected work. Warner Bros., 575 F. Supp. 2d at 553. Here, a permanent injunction protecting HarperCollins exclusive electronic rights in the Work, as well as in any other works to which it holds commensurate rights, will enable and encourage HarperCollins to continue to meet public demand for digital versions of important backlist literary works like Julie of the Wolves without the threat of unlawful direct competition. Toward this end, HarperCollins proposed permanent injunction (see Rich Decl. Ex. A) would enjoin Open Road from publishing or contracting to publish the Work and holding itself out as an authorized publisher of the Work. It would require Open Road to discontinue the sale and offering for sale of the Work through any and all sales channels; to delete or destroy all copies of the Work (or any portion thereof) in its possession, custody, or control; and to remove the Work from the sales catalogs, websites, and any other sources that list works available for sale or download from Open Road. It would require Open Road to notify all third parties with which it has contracted or otherwise arranged to offer the Work for sale to promptly stop doing so. Finally, it would prevent Open Road from publishing, or contracting to publish, any other work for which HarperCollins holds the exclusive right to publish in book form together with the exclusive electronic rights conveyed to HarperCollins in the Agreement. II. HARPERCOLLINS IS ENTITLED TO A MAXIMUM STATUTORY DAMAGE AWARD, ENHANCED DUE TO OPEN ROAD S CONTINUED WILLFUL INFRINGEMENT HarperCollins has elected to recover statutory damages in lieu of actual damages under section 504 of the Copyright Act. See 17 U.S.C. 504(c); see also, e.g., Twin Peaks Prods., Inc. v. Publ ns Int l, Ltd., 996 F.2d 1366, (2d Cir. 1993). Statutory damages are available 12

19 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 19 of 31 without proof of actual damages. All-Star Mktg. Grp., LLC v. Media Brands Co., 775 F. Supp. 2d 613, 626 (S.D.N.Y. 2011). For each work infringed, a prevailing copyright plaintiff may recover statutory damages of from $750 to $30,000, and the award may be increased up to $150,000 per work where the infringement is willful. 17 U.S.C. 504(c)(1)-(2). Courts enjoy wide discretion in setting the amount of statutory damages. Bryant v. Media Right Prods., Inc., 603 F.3d 135, 143 (2d Cir. 2010) (quotation and alteration omitted); see also EMI April Music, 2014 WL , at *4. Notwithstanding Open Road s blatant infringement, HarperCollins initially was not inclined to seek enhanced statutory damages based on willful infringement. However, Open Road s continued infringing conduct following the Court s summary judgment ruling has led HarperCollins to believe that a statutory damages award should incorporate a willfulness component. Accordingly, HarperCollins requests a statutory damage award of at least the maximum for non-willful infringement ($30,000) but urges the Court to enhance that award by an amount in its discretion in view of Open Road s continued infringing conduct. 8 In setting an award of statutory damages under section 504, courts in this Circuit consider the following factors: (1) the infringer s state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer s cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties. Bryant, 603 F.3d at 144; see also Psihoyos v. John Wiley & Sons, Inc., Nos cv(L), The appropriateness of an award of attorneys fees, as discussed in Section III, infra, is unaffected by the Court s determination as to willfulness. See Miroglio S.P.A. v. Conway Stores, Inc., 629 F. Supp. 2d 307, (S.D.N.Y. 2009); see also Scanlon v. Kessler, 23 F. Supp. 2d 413, 416 (S.D.N.Y. 1998) ( [T]he court s finding of lack of wilfulness on the part of [the defendant] does not prevent plaintiff from being awarded attorney s fees and costs. Wilfulness goes to the issue of damages and not to the ultimate issue of determining whether defendants violated the Act by infringing on [the plaintiff s] copyrights. ). 13

20 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 20 of 31

21 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 21 of 31 Ex. 41 at OR ; see also Dkt. 19 (Declaration of Kate Jackson In Support of HarperCollins Motion for Summary Judgment) Open Road nonetheless proceeded with publication of the e-book version of the Work notwithstanding the evident reservations of its counsel and of George s agent as to the potential violation of HarperCollins contractual rights. See Dkt. 23 Ex. 21 at OR000739; id. Ex. 18 at OR000504; id. Ex. 4 (Deposition of Ginger Knowlton, dated Nov. 29, 2013), at 73:24-74:3. Indeed, it was not until Open Road that Open Road s publication of the Work moved forward. Id. Ex. 21 at OR In short, Open Road s infringement was hardly innocent. Deterrence (Factor 4) also strongly favors a significant statutory award. Courts must consider the deterrent effect on both other potential infringers as well as Defendants themselves, Arista Records LLC v. Usenet.com, Inc., No. 07 Civ. 8822(HB)(THK), 2010 WL , at *6 (S.D.N.Y. Feb. 2, 2010), report and recommendation adopted, No. 07 Civ. 8822(HB), 2010 WL (S.D.N.Y. Sept. 16, 2010), and deterring similar conduct by other enterprises requires a substantial award. EMI April Music, 2014 WL , at *4. A meaningful award is called for to deter Open Road and others from arrogating to themselves the new-media publication rights of legitimate licensees like HarperCollins. An orderly market for electronic publication rights requires respect for the rights of those who have bargained for such rights, particularly given the increasing consumer demand for access to valuable backlist titles in new electronic formats. See, e.g., Dkt This case will surely be looked to as an important precedent in this area. Hence, a sizeable statutory damage award coupled with the other remedies sought in this motion will send an appropriately strong message to digital publishers 15

22 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 22 of 31

23 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 23 of 31 III. THE COURT SHOULD GRANT HARPERCOLLINS ITS REASONABLE ATTORNEYS FEES A. An Award of Attorneys Fees Is Warranted Section 505 of the Copyright Act authorizes a court in its discretion to award a reasonable attorney s fee to the prevailing party. 17 U.S.C. 505; see also Matthew Bender & Co. v. West Publ g Co., 240 F.3d 116, 121 (2d Cir. 2001) (holding that granting attorneys fees under section 505 is within district court s broad discretion). The Second Circuit has interpreted section 505 in a manner that is very favorable to prevailing parties, and fees are generally awarded to a prevailing plaintiff in this Circuit. Twin Peaks Prods., 996 F.2d at 1383; Software Freedom Conservancy, Inc. v. Best Buy Co., No. 09 Civ (SAS), 2010 WL , at *3 (S.D.N.Y. July 27, 2010) ( [B]ecause the Copyright Act intended to encourage suits to redress infringement, fees are generally awarded to a prevailing plaintiff. ). The U.S. Supreme Court has identified several factors for courts to consider in determining whether a fee award is appropriate: frivolousness, motivation, objective unreasonableness (both factual and legal), and the need in particular circumstances to advance considerations of compensation and deterrence. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994); Matthew Bender & Co., 240 F.3d at 121; Pannonia Farms, Inc. v. USA Cable ( Pannonia I ), No. 03 Civ. 7841(NRB), 2004 WL , at *6 (S.D.N.Y. June 8, 2004) (Buchwald, J.); Pannonia Farms, Inc. v. USA Cable ( Pannonia III ), No. 03 Civ. 7841(NRB), 2006 WL , at *1 (S.D.N.Y. Oct. 5, 2006) (Buchwald, J.). These factors are neither mandatory nor exclusive; rather, they may be used to guide courts discretion and are to be applied in a manner faithful to the purposes of the Copyright Act. Fogerty, 510 U.S. at 534 n.19; Harrell v. Van Der Plas, No. 08 Civ (GEL), 2009 WL , at *3 (S.D.N.Y. Nov. 9, 2009). 17

24 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 24 of 31 The Second Circuit has held that objective unreasonableness should be given substantial weight in determining whether an award of attorneys fees is warranted. Matthew Bender & Co., 240 F.3d at 121. This Circuit s emphasis on objective unreasonableness is firmly rooted in Fogerty s admonition that any factor a court considers in deciding whether to award attorneys fees must be faithful to the purposes of the Copyright Act, namely, to encourage the origination of creative works by attaching enforceable property rights to them. Id. (citation omitted). The touchstone of the court s exercise of its discretion under section 505 is whether a fee award will further the interests of copyright law by encouraging the raising of objectively reasonable claims and defenses. MiTek Holdings, Inc. v. Arce Eng g Co., 198 F.3d 840, 842 (11th Cir. 1999) (citing Fogerty, 510 U.S. at ). A copyright claim or defense is objectively unreasonable when it is clearly without merit or otherwise patently devoid of a legal or factual basis. Porto v. Guirgis, 659 F. Supp. 2d 597, 617 (S.D.N.Y. 2009); see also Contractual Obligation Prods., LLC v. AMC Networks, Inc., 546 F. Supp. 2d 120, 125 (S.D.N.Y. 2008) (same). Courts in this District have awarded attorneys fees to prevailing plaintiffs under section 505 based solely on the objective unreasonableness of the defendant s position. See, e.g., 16 Casa Duse, LLC v. Merkin, No. 12 Civ. 3492(RJS), 2013 WL , at *17 (S.D.N.Y. Sept. 27, 2013) (awarding attorneys fees based on defendant s objectively unreasonable claim that copyright owner did not in fact own rights asserted); Harrell, 2009 WL , at *4 (awarding attorneys fees based on finding defendant s argument that its infringing activity was authorized objectively unreasonable); Miroglio, 629 F. Supp. 2d at 311 (recommending award of attorneys fees based on objective unreasonableness of defendants position that infringing work was not substantially similar when it was nearly identical to plaintiff s work). 18

25 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 25 of 31 For reasons explained thoroughly in the Court s summary judgment ruling and summarized above, Open Road s defenses in this case were objectively unreasonable. Notably, the Court s ruling rested on a plain reading of the contractual language, which, the Court found, clearly granted HarperCollins the exclusive right to license third parties to publish e- book versions of Julie of the Wolves. Dkt. 46 at The Court readily found that Paragraph 20, which conveyed to HarperCollins control over uses of the Work by electronic means now known or hereafter invented, was sufficiently broad to draw within its ambit e-book publication. Id. at 17. Because the Court found the Agreement unambiguous with respect to electronic rights, Open Road s advocacy of a contrary interpretation of the Agreement was necessarily objectively unreasonable. See LaSalle Bank Nat l Ass n v. Nomura Asset Capital Corp., 424 F.3d 195, 207 (2d Cir. 2005) (defining an unambiguous contract as one that is not reasonably capable of more than one meaning ). This conclusion is bolstered by the Court s finding that Open Road s attempt to elide the plain meaning of Paragraph 20 was at variance with the generally-applied heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties. Dkt. 46 at 21 (citation omitted). The Court found Open Road s proposed reading of the Agreement particularly unwarranted in light of the Second Circuit s new use case law, under which the parties should be entitled to rely on the words of the contract. Id. (quoting Boosey & Hawkes, 145 F.3d at 488). In addition, the Court was appropriately critical of Open Road s litigation tactics. For example, it ascribed Open Road s strategy of largely ignor[ing] Paragraph 20 to its recognition of the breadth of the language of that provision, Dkt. 46 at 20, which, the Court observed, led Open Road to try to redirect the Court s attention to Paragraph 1 and to Rosetta Books. But 19

26 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 26 of 31

27 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 27 of 31 * * * In sum, Open Road violated HarperCollins rights in a blatant and knowing manner. Its defense was both clearly without merit and patently devoid of a legal or factual basis, Harrell, 2009 WL , at *3, yet it forced HarperCollins to invest substantial resources in protecting the value of its copyrights before the Court. As a sanction for Open Road s clear-cut infringement, as compensation for HarperCollins, and as a deterrent to Open Road and others who would seek unlawfully to exploit electronic uses of literary works, an award of attorneys fees is warranted. B. The Amount of Fees Requested Is Reasonable Courts calculate a presumptively reasonable attorney s fee by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Harrell, 2009 WL , at *1 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); see also Muller v. Twentieth Century Fox Film Corp., No. 08 Civ (DC), 2011 WL , at *2 (S.D.N.Y. Aug. 22, 2011); BBY Solutions, Inc. v. Schwartz, No. CV (ADS)(ETB), 2011 WL , at *5 (E.D.N.Y. Nov. 17, 2011). The reasonable hourly rate is the rate a paying client would be willing to pay. Harrell, 2009 WL , at *5 (citing Arbor Hill Concerned Citizens Neighborhood Ass n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)). The Second Circuit has held that for prevailing parties with private counsel, the actual billing arrangement is a significant... factor in determining what fee is reasonable. Crescent Publ g Grp., Inc. v. Playboy Enters., Inc., 246 F.3d 142, 151 (2d Cir. 2001); see also Pannonia III, 2006 WL , at *2 ( the actual billing arrangement between counsel and client provides a strong indication of what constitutes a reasonable fee ). HarperCollins seeks the reimbursement of attorneys fees in the amount of $1,089,371.50, which represents 70% of the total fees HarperCollins paid Weil, Gotshal & 21

28 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 28 of 31 Manges LLP ( Weil ) in connection with its work on this matter. Although HarperCollins believes it is entitled to recover the total fees actually paid to its counsel in this action, in an effort to be conservative in this submission, HarperCollins is requesting an award of only 70% of that amount. Based on the nature and amount of the work performed, the fees actually billed to and paid by HarperCollins (totaling $1,556,245.00), and Weil s peer law firms rates in this District, this fee request is reasonable. The rates used to compute the requested fee award are based on amounts HarperCollins actually paid, and they reflect the standard hourly rates that generally are charged to Weil s feepaying clients. Specifically, the hourly rates charged to HarperCollins range from $1,175 per hour (for R. Bruce Rich, a senior partner at Weil, head of the firm s Intellectual Property & Media Litigation practice group, and lead day-to-day partner on this case) to $265 per hour (for Crystal Cromwell McCray, a senior paralegal at the firm). See Rich Decl These rates appropriately reflect the experience, expertise, and skill of the Weil attorneys and staff involved and are commensurate with the market rates charged by Weil s peer firms in this District. Id. 37; see also 2013 NLJ Billing Survey, NAT L L.J. (Dec. 2013) (Rich Decl. Ex. M) (listing partner billing rates in 2013 of up to $1,800 and associate billing rates of up to $975 in New York City). After assessing reasonable rates, the Court then determines whether the hours billed to the matter were reasonable in order to calculate the presumptively reasonable fee. Harrell, 2009 WL , at *6 (citing Arbor Hill, 522 F.3d at ). In considering whether the hours expended were reasonable, the inquiry is based not... on what effort appears necessary in hindsight, but rather on whether at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures. Id. (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). 22

29 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 29 of 31 The Rich Declaration accompanying this motion attaches contemporaneous time records from the early assessment of HarperCollins claim in the summer of 2011 through the issuance of the Court s summary judgment ruling on March 17, Rich Decl. 2(b) & Ex. B. HarperCollins time records specify, for each attorney, the date, the hours expended, and the nature of the work done. See N.Y. State Ass n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, (2d Cir. 1983); Pannonia III, 2006 WL , at *2 ( In this Circuit, all fee applications must be supported by contemporaneous records specifying by attorney, the date, the hours expended and the nature of the work done. ). The hours expended by Weil on this litigation are reasonable. HarperCollins engaged in substantial discovery, including document productions, depositions, and the preparation and analysis of expert reports; prepared letter briefs in connection with Open Road s efforts to stay and/or dismiss the case in favor of arbitration; prepared briefs in connection with cross-motions for summary judgment; prepared letter briefs in connection with Open Road s effort to introduce new evidence ; and prepared for oral argument on the motions for summary judgment. Rich Decl All of these activities were necessary, particularly in view of Open Road s unnecessarily-complicating approach to the case. See id. 18, 20, 22. IV. THE COURT SHOULD AWARD HARPERCOLLINS FULL COSTS Under section 505 of the Copyright Act, as a prevailing party HarperCollins also is entitled to its full costs. Section 505 provides the court with explicit statutory authority to award costs pursuant to a violation of the Copyright Act. Barrera v. Brooklyn Music, Ltd., 346 F. Supp. 2d 400, 404 (S.D.N.Y. 2004). Under Fed. R. Civ. P. 54, costs are awardable to a prevailing party as of course, and the losing party has the burden to show that costs should not be imposed. Farberware Licensing Co. v. Meyer Mktg. Co., No. 09 Civ. 2570(HB), 2009 WL 23

30 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 30 of , at *3 (S.D.N.Y. Dec. 30, 2009), aff d 428 F. App x 97 (2d Cir. 2011) (citations omitted). [A]lthough the authority to award costs in [a copyright infringement] action is derived from 505, Fed. R. Civ. P. 54 and 28 U.S.C provide[] guidance as to the types of costs deemed recoverable. Barrera, 346 F. Supp. 2d at 405; see also Williams v. Crichton, 891 F. Supp. 120, (S.D.N.Y. 1994) (applying both 17 U.S.C. 505 and Fed. R. Civ. P. 54 in determining that prevailing party was entitled to recover certain costs). The costs recoverable under Rule 54(d)(1) include: (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and the costs of making copies of any material where the copies are necessarily obtained for use in the case; [and] (5) docket fees under 28 U.S.C Syrnik v. Polones Constr. Corp., No. 11 Civ. 7754(KBF), 2012 WL , at *3 (S.D.N.Y. Sept. 19, 2012) (citing 28 U.S.C. 1920; Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 298 (2006)). Recoverable costs also may include reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients. LeBlanc-Sterling v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (quoting United States Football League v. Nat l Football League, 887 F.2d 408, 416 (2d Cir. 1989)); see also Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235, 239 (S.D.N.Y. 1993) ( Attorneys may be compensated for reasonable out-of-pocket expenses incurred and customarily charged to their clients, as long as they were incidental and necessary to the representation of those clients. ). As set out more fully in the accompanying Rich Declaration, HarperCollins seeks recovery of its taxable costs in the amount of $7,

31 Case 1:11-cv NRB Document 50 Filed 05/23/14 Page 31 of 31 CONCLUSION For the foregoing reasons, HarperCollins respectfully requests that the Court: (1) enter a permanent injunction in the form attached as Exhibit A to the Rich Declaration; (2) award HarperCollins statutory damages in the amount of at least $30,000.00; and (3) award HarperCollins reasonable attorneys fees in the amount of $1,089, and costs in the amount of $7, Dated: New York, New York May 23, 2013 Respectfully submitted, WEIL, GOTSHAL & MANGES LLP By: /s/ R. Bruce Rich R. Bruce Rich (RBR-0313) Jonathan Bloom (JB-7966) Sabrina A. Perelman (SP-2268) 767 Fifth Avenue New York, New York Tel: (212) Fax: (212) Attorneys for Plaintiff HarperCollins Publishers LLC 25