JENNER&BLOCK January 5, 2012 Jenner & Block 12 cviage th Third Avene Lon Anges gah Floor New ork NewYork 10088-3908 Wathington, oc HAND DELIVERY Tela Sotr600 soennercom Honorable William H. Pauley III gece Bar USS. District Court eas Souther District of New York palmer com Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street, Room 2210 ‘New York, New York 10007 Re: Capitol Records, LLC et al. v. MP3tunes, LLC, et ano, No. 07 Civ. 9931 (WHP) Dear Judge Pauley: We write on behalf of all plaintiffs (collectively “EMI”) in the above captioned matter to bring to the Court’s attention new authority that supports EMI's November 8, 2011 request that the Court certify an interlocutory appeal of its order dated October 25, 2011 (the “Order”), ‘The first issue upon which EMI sought interlocutory certification was the issue of whether claims for common law copyright infringement related to sound recordings first fixed before February 15, 1972 (“Pre-72 Recordings”) may be limited by the safe harbor provisions of Section 512 of the Copyright Act (commonly referred to as the “DMCA”). After the Court issued its Order determining that the DMCA does limit remedies for Pre-72 Recordings, the Copyright Office released a long awaited, congressionally mandated study reaching the opposite conclusion. See Exhibit A at 130-32.' ‘The Copyright Office began its analysis by noting that the limitations in Section 512, by their express terms, only apply to claims for “copyright infringement.” ‘The Copyright Office further found that “the statute’s plain text reveals a narrow definition of ‘copyright infringement” which is buttressed by the language of section 301(c).” Id. at 132. Specifically, Section 501(a) of the Copyright Act defines the term “infringement of copyright” to mean a violation of the Copyright Act. Therefore, the Copyright Office concluded that “the fact that the term ‘infringement of copyright’ only refers to infringement of rights protected under [the Copyright Act}, and does not include infringement of rights protected under common law or statute of any State, could not be more clear.” Id. at 131-32 (emphasis added). In addition, the Copyright Office closely analyzed this Court’s Order and expressed its opinion that the Order conflicted with two applicable rules of statutory constructions: (1) the rule that exemptions from liability are to be narrowly construed; and (2) the rule that one section of a statute should not be read to implicitly repeal another. {dat 132. ' The Copyright Office’s report is over 200 pages long and covers all aspects of the Copyright Act’s application to Pre-72 Recordings. In order to avoid burdening the Court, EMI has attached only the introductory pages and the pages relevant to Section 512. ‘The full text of the report is available at http://www copyright. gov/docs/sound/pre-72-report pdf,Honorable Judge William H. Pauley III January 5, 2011 Page 2 The Copyright Office ultimately concluded that the Copyright Act clearly prevents the application of Section 512 to state common law claims and there was no evidence that Congress intended section 512(c) to apply to pre-1972 sound recordings. Id. The Copyright Office added that “it is for Congress, not the courts, to extend the Copyright Act to pre-1972 sound recordings, both with respect to the rights under the Act and the limitations on those rights (such as section 512) as set forth in the Act.” /d. at 132 (parenthetical in original). As EMI discussed in its November 8, 2011 letter, an interlocutory appeal may be certified when an order involves a “substantial ground for difference of opinion,” such as where “the authority on a point of law is in conflict, or when there is a ‘relative lack of authority on the precise question.’” Jn Re Fosamax, 2011 U.S. Dist. LEXIS 72123, at *12 citing In re Prudential Lines, Inc., No. 93 Civ. 1481 (CSH), 1995 U.S. Dist. LEXIS 2056, at *1 (S.D.N.Y. Feb. 22, 1995). The Copyright Office’s report, which is entitled to deference from federal courts, see United States v. Mead Corp., 533 U.S. 218, 234 (2001); Morris v. Bus. Concepts, Inc., 283 F.3d 502, 505-06 (2d Cir.2002), clearly contributes to a direct conflict on the precise question EMI has raised. For the foregoing reasons and the reasons stated in EMI’s November 8 letter, EMI requests that the Court certify an interlocutory appeal of the Order or, in the alternative, hold a pre-motion conference to discuss EMI’s request for certification. Respectfully submitted, aah Ul Sart /m Andrew H. Bart ce: Greg Gulia, Esq. (via email) ‘Vanessa Hew, Esq. (via email) Frank Scibilia, Esq. (via email)Exhibit A