IV. CONCLUSION For all these reasons, Puerto 80 respectfully requests the Court to amend its order to state that the requirements of 28 U.S.C. § 1292(b) have been satisfied, and certify for appeal to the Second Circuit the controlling legal question of whether linking to another website—by purposefully aggregating links to extremely specific content and actively organizing those links in a focused, logical manner—satisfies the element of “copying” sufficient to state a claim for direct copyright infringement under 17 U.S.C. § 506(a). Case 1:11-cv-04139-PAC Document 33 Filed 12/27/11 Page 9 of 10 7 Dated: December 27, 2011 By: Respectfully submitted, DURIE TANGRI LLP /s/ Johanna Calabria David Spears Charlita Mays SPEARS & IMES LLP 51 Madison Avenue, 25th Floor New York, NY 10010 Tel. (212) 213-6996 Attorneys for Claimant PUERTO 80 PROJECTS, S.L.U. Johanna Calabria Mark A. Lemley (Pro Hac Vice) Ragesh K. Tangri (Pro Hac Vice) Johanna Calabria (SBN JC3915) Genevieve P. Rosloff (Pro Hac Vice) 217 Leidesdorff Street San Francisco, CA 94111 Tel. (415) 362-6666 Attorneys for Claimant PUERTO 80 PROJECTS, S.L.U. Case 1:11-cv-04139-PAC Document 33 Filed 12/27/11 Page 10 of 10

Danjaq LLC v. Sony Corp., 263 F.3d 942, 959 (9th Cir. 2001). “To hold that willfulness must be inferred whenever an alleged infringer uses an intellectual property in the face of disputed title would turn every copyright claim into willful infringement . . . .” Id., also 17 U.S.C. § 506 (a)(2) (“[E]vidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.”).

A. The Amended Complaint Alleges the Commission of Copyright Infringement Offenses Title 17, United States Code, Section 506(a) provides in relevant part that "[a]ny person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed for purposes of commercial advantage or private financial gain." 17 U.S.C. § 506(a)(1)(A).6 "Though the Government's burden in a criminal copyright infringement case is to persuade beyond a reasonable doubt, [there is] no reason why the elements to be proven are more than those in a civil copyright infringement case - ownership of a valid copyright and copying." United States v. Larracuente, 952 F.2d 672, 673 (2d Cir. 1992).

Moreover, on the copyright application, Cummings was reminded of the law: “Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.” Id.; 17 U.S.C. § 506(e). Case 2:10-cv-03246-JFW-JC Document 20 Filed 07/09/10 Page 17 of 24 Page ID #:368 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA2058506.2 214183-10001 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS OPP.

It alleges that the broadcasts ran “on a live stream from another website” and those broadcasts were “not authorized by the relevant copyright holders,” AC ¶17(g), but pleads no other facts regarding these acts of alleged infringement. Because the government has now—correctly—abandoned its original theory that Puerto 80’s activities constitute a violation of 17 U.S.C. § 506, it must allege other acts of direct infringement by someone who had a willful intent. Having failed to do so, the Amended Complaint should be dismissed.

Puerto 80 might reasonably have relied on the facts that two courts had already held that the Rojadirecta website was legal, and that every United States court to date had held that the linking conduct alleged by the government is not even civil copyright infringement. Accord Kelly v. L.L. Cool J., 145 F.R.D. 32, 39 (S.D.N.Y. 1992), aff’d, 23 F.3d 398 (2d Cir. 1994) (“[C]onduct that does not support a civil action for infringement cannot constitute criminal conduct under 17 U.S.C. § 506(a).”).

17 U.S.C. § 506(a)(1). Because criminal copyright infringement requires proof of all the elements of civil copyright infringement, "conduct that does not support a civil action for infringement cannot constitute criminal conduct under 17 U.S.C. § 506(a)." Kelly v. L.L. Cool J., 145 F.R.D. 32, 39 (S.D.N.Y. 1992), aff’d, 23 F.3d 398 (2d Cir. 1992).

’” Id., 2011 U.S. Dist. LEXIS 27881 at *6-7 (quoting Donald Frederick Evans & Assocs., Inc. v. Continental Homes, Inc., 785 F.2d 897, 913 (11th Cir. 1986) (citing legislative history)). See also Barnhart v. Federated Dep’t Stores, Inc., 2005 U.S. Dist. LEXIS 3631 (S.D.N.Y. Mar. 8, 2005) (“There is no corresponding private right of action . . . under 17 U.S.C. § 506(e) for making false claims to the Copyright Office.”); Ashton- Tate Corp. v. Ross, 728 F. Supp. 597, 602 (N.D. Cal. 1989) (“Section 506(e) is solely a criminal statute that does not provide a private cause of action”), aff’d, 916 F.2d 516 (9th Cir. 1990).

“J”. Falsely claiming copyrights in public domain works is a criminal offense pursuant to 17 U.S.C. § 506 (c); making knowingly false statements in a copyright application is a criminal offense pursuant to § 506 (e). Plaintiff is fully aware of the consequences of publication without proper copyright notice under the 1909 Act, especially with regard to album covers.

Criminal copyright infringement under 17 U.S.C. § 506(a)(1) is committed if the person infringes a copyright: A. for purposes of commercial advantage or private financial gain; B. by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total value of more than $1,000; or C. by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution. See Internet Archive v. Shell, 505 F.Supp.2d 755, 768 (D.Colo. 2007), citing 17 U.S.C. § 506(a)(1). PMB 351958.9 12 CoStar v. Mark Field, et al. Case No.: 8:08-CV-00663-AW Lawson’s Motion and Supporting Memorandum To Dismiss Amended Complaint Again, Count VIII of Plaintiffs’ Complaint contains nothing more than conclusory allegations that Defendants’ (including Lawson) infringement of Plaintiffs’ copyright was willful, for the purpose of commercial advantage or private financial gain, and was thus criminal.