Free Motion for Leave to Appeal - District Court of California - California

Case 5:07-cv-03783-JF

Document 47-2

Filed 08/29/2008

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KELLY M. KLAUS (SBN 161091) [email protected] AMY C. TOVAR (SBN 230370) [email protected] MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Defendants UNIVERSAL MUSIC CORP., UNIVERSAL MUSIC PUBLISHING, INC., and UNIVERSAL MUSIC PUBLISHING GROUP UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA 11 12 STEPHANIE LENZ, 13 Plaintiff, 14 vs. 15 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28
5831638.1

CASE NO. CV 07-03783-JF [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION [1] TO CERTIFY AUGUST 20, 2008 ORDER FOR INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(b) AND [2] TO STAY PENDING RESOLUTION OF § 1292(b) PROCEEDINGS Date: Time: Judge: Courtroom: N/A N/A Honorable Jeremy Fogel 3

UNIVERSAL MUSIC CORP., UNIVERSAL MUSIC PUBLISHING, INC., and UNIVERSAL MUSIC PUBLISHING GROUP,

[PROPOSED] ORDER CASE NO. CV 07-03783-JF

Case 5:07-cv-03783-JF

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Filed 08/29/2008

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The Court, having considered the motion of Defendants Universal Music Corp., Universal Music Publishing, Inc. and Universal Music Publishing Group ("Defendants") for an Order [1] certifying the Court's August 20, 2008 Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and [2] staying proceedings in this Court pending the Ninth Circuit's resolution of the § 1292(b) appeal, Plaintiff's Opposition thereto, Defendants' Reply, and good cause appearing therefor, Orders as follows: [1] The Court is of the opinion that its August 20, 2008 Order involves a controlling

question of law: "whether 17 U.S.C. § 512(c)(3)(A)(v) requires a copyright owner to consider the fair use doctrine in formulating a good faith belief that `use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.'" Aug. 20, 2008 Order at 4:25-28. The Court is further of the opinion that there is substantial ground for difference of opinion with the Court's resolution of that question, and that an immediate appeal from the August 20, 2008 Order may materially advance the ultimate termination of the litigation. The Court therefore certifies the August 20, 2008 Order for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). [2] All further proceedings in this Court are hereby stayed pending the Ninth Circuit's

resolution of Defendants' application to the Court of Appeals and, if the appeal is granted, the Ninth Circuit's resolution of the appeal. If the Ninth Circuit denies Defendants' application for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b), Defendants shall file their Answer to Plaintiffs' Second Amended Complaint within ten (10) court days of the Ninth Circuit's Order denying such appeal, and the stay granted by this Order shall terminate. IT IS SO ORDERED. DATED:

UNITED STATES DISTRICT JUDGE

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[PROPOSED] ORDER CASE NO. CV 07-03783-JF