Case 3:20-cv-01602-SRU Document 67 Filed 12/01/22 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNETICUT
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`Case No. 3:20-cv-01602-SRU
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`December 1, 2022
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`YOUT LLC,
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`Plaintiff,
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`vs.
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`THE RECORDING INDUSTRY
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`ASSOCIATION OF AMERICA, INC. and
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`DOE RECORD COMPANIES 1-10
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`Defendants
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`__________________________________________)
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`PLAINTIFF’S MOTION TO STAY DEFENDANT RIAA’S
`MOTION FOR ATTORNEYS’ FEES
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`NOW COMES THE PLAINTIFF YOUT LLC (“Plaintiff’ or “Yout”), by and through its
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`attorneys, Mudd Law Offices, and files this Motion to Stay this matter with respect to Defendant
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`The Recording Industry Association of America, Inc.’s (“RIAA”) Motion for Attorneys’ Fees
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`(“Motion”) pursuant to Rule 62 of the Federal Rules of Civil Procedure and in support hereof
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`shows the Court the following:
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`FACTUAL AND PROCEDURAL BACKGROUND
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`Plaintiff Yout is a small, Connecticut limited liability company with its principal place of
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`business in Hartford, Connecticut. Second Am. Compl. ¶ 2. Defendant RIAA is a large trade
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`organization incorporated under the laws of the State of New York, headquartered in Washington
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`D.C. that “supports and promotes the creative and financial vitality of the major music
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`companies.” Id. at ¶¶ 3-4, n. 1. Further, the RIAA reports that the recording industry it represents
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`enjoyed $15 billion in revenue in 2021 alone. See https://www.riaa.com/wp-
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`content/uploads/2022/03/2021-Year-End-Music-Industry-Revenue-Report.pdf, last visited
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`November 30, 2022.
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`Case 3:20-cv-01602-SRU Document 67 Filed 12/01/22 Page 2 of 9
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`Plaintiff Yout filed the Second Amended Complaint on September 14, 2021. See
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`generally Pl.’s Second Am. Compl., ECF No. 45. Defendant RIAA answered and filed a Motion
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`to Dismiss on October 20, 2021. See generally Defs. Mot. Dismiss, ECF No. 48. On December
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`1, 2021, Plaintiff Yout filed its Response in Opposition to Defendant RIAA’s Motion to Dismiss.
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`See generally Pl.’s Resp. Opp’n to Defs.’ Mot. Dismiss, ECF No. 55. On January 5, 2022,
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`Defendant RIAA filed its Reply in Support of Defendant RIAA’s Motion to Dismiss. Defs.’
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`Reply Supp. Defs.’ Mot. Dismiss, ECF No. 56. On September 30, 2022, the Court granted
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`Plaintiff RIAA’s Motion to Dismiss with Prejudice. ECF No. 61-62. Plaintiff Yout filed a Notice
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`of Appeal on October 20, 2022. ECF No. 63. Then, on October 31, 2022, Plaintiff RIAA filed
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`their Motion for Attorneys’ Fees. ECF No. 65.
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`LEGAL ARGUMENT
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`The district court has the discretionary power to stay proceedings pursuant to its
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`“inherent power to control its docket.” Miller v. City of Ithaca, Docket No. 3:10-cv-00597
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`(BKS/DEP), 2019 U.S. Dist. LEXIS 57184, at *4 (N.D.N.Y. Apr. 3, 2019) (citing Landis v. N.
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`Am. Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 81 L. Ed. 153 (1936)). Absent a bond, the Court
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`has discretion to grant the requested stay. See FRCP 62. To determine whether a stay of
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`attorneys’ fees pending appeal is appropriate, district courts in the Second Circuit look to four
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`factors: “(1) whether the stay applicant has made a strong showing that it is likely to succeed on
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`the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
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`issuance of the stay will substantially injure the other parties interested in the proceeding; and (4)
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`where the public interest lies.” Estevez v. Berkeley College, Docket No. 18-CV-10350 (CS),
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`2022 U.S. Dist. LEXIS 100828, at *3 (S.D.N.Y. June 6, 2022) (quoting In re World Trade Ctr.
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`Disaster Site Litig., 503 F.3d 167, 170 (2d. Cir. 2007)); see also Nken v. Holder, 556 U.S. 418,
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`Case 3:20-cv-01602-SRU Document 67 Filed 12/01/22 Page 3 of 9
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`434 (2009). Further, courts look at the factors like a sliding scale and “more of one [factor]]
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`excuses less of the other.” Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002).
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`A. The Public Interest Weighs Significantly in Favor of a Stay of
`Attorneys’ Fees Pending Appeal.
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`“Copyright law ultimately serves the purpose of enriching the general public through
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`access to creative works.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994); Warner Bros.
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`Entm’t Inc. v. RDR Books, 575 F. Supp. 2d 513, 553 (S.D.N.Y 2008) (“to serve the public
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`interest, copyright law must prevent the misappropriation of the skills, creative energies, and
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`resources which are invested in the protected work.”); see generally U.S. Const. Art. 1, s. 8, c. 8
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`(“to promote the progress of science and useful arts…”). Thus, generally, allowing Yout to
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`proceed on an appeal related to a novel question in Copyright law serves the public interest.
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`More specifically, many content creators use Plaintiff Yout’s services to record their own
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`original videos and they further encourage their audience and fans to use Plaintiff Yout to record
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`and play back their original content. Second Am. Compl. ¶¶ 80 – 81. Given the substantial
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`reputational and monetary harm, as discussed above, Plaintiff Yout will be unable to continue to
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`provide the Yout service that allows content creators the ability to record and create original
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`content if it is not allowed to appeal the Court’s holding. Id.
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`As noted throughout this litigation, Yout’s service is based on a modified version of the
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`open-source project youtube-dll. See, e.g., ECF Doc. 45, n5. Most significantly, it is in the public
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`interest that the appellate court determines if services such as Yout, and others that are also based
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`upon the open-source software project youtube-dll (whether commercially exploited or coded
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`and deployed by individual users) constitute circumvention pursuant to the DMCA as held by
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`this Court. The legality of software based on youtube-dll has not been fully litigated and
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`Case 3:20-cv-01602-SRU Document 67 Filed 12/01/22 Page 4 of 9
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`reviewed by any appellate court on the merits thus far. As explained in the Wikipedia entry for
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`youtube-dll:
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`youtube-dl is a free and open-source download manager for video and audio from
`YouTube and over 1,000 other video hosting websites. It is released under the
`Unlicense software license. As of September 2021, youtube-dl is one of the most
`starred projects on GitHub, with over 100,000 stars. According to libraries.io, 308
`other packages and 1.43k repositories depend on it.
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`See https://en.wikipedia.org/wiki/Youtube-dl, last viewed on November 30, 2022
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`(citations omitted).
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`Given that the reach of this Court’s holding in this matter goes far beyond just this one
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`small business software provider, it is in the public interest that the Second Circuit reviews the
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`merits on appeal. This important and necessary review will be crippled if the instant matter
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`concerning attorneys’ fees is not stayed. This factor weighs strongly in favor of granting a stay
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`and as such, Plaintiff respectfully requests that the Court grant Plaintiff Yout’s Motion to Stay
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`this matter, specifically with respect to attorneys’ fees and costs pending appeal.
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`B. Plaintiff Yout Will Be Irreparably Harmed Absent a Stay of
`Attorneys’ Fees Pending Appeal; and a Stay Will Not Substantially
`Harm Defendant RIAA
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`To demonstrate irreparable harm such that a stay is necessary, a party must show that it
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`will suffer injury which “cannot be remedied” absent a stay. Grand River Enter, Six Nations,
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`Ltd. v. Pryor, 481 F.3d 60, 65 (2d. Cir. 2007). “Irreparable harm is ‘injury that is neither remote
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`nor speculative, but actual and imminent and that cannot be remedied by an award of monetary
`damages.’” New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 660 (2d. Cir. 2015)
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`(quoting Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 153 (2d Cir.
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`1999). Further, “irreparable harm exists ‘where, but for the grant of equitable relief, there is a
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`substantial chance that upon final resolution of the action the parties cannot be returned to the
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`positions they previously occupied.” United States SEC v. Daspin, 557 F. App'x 46, 48 (2d Cir.
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`2014) (citations omitted).
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`In the instant case, Plaintiff Yout created and operates a service by which a person can
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`enter a url linked to publicly accessible, unencrypted Web Content in certain limited formats and
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`create a personal copy on the person’s computing device without storing any of the Web Content
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`on Yout’s platform or service. Second Am. Compl. ¶¶ 34 – 35. Many content creators use
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`Plaintiff Yout’s services to record their own original videos and they further encourage their
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`audience and fans to use Yout to record and play back their original content. Id. at ¶¶ 80 – 81.
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`Defendant RIAA sent multiple DMCA notices to Google with the purpose of causing Google to
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`delist Yout’s software platform. Id. at ¶¶ 83 – 88, 143, Exs. A-C (copies of notices). Defendant
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`RIAA’s DMCA notices have blocked Yout users’ ability to use the service with all works, not
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`just those unidentified works of RIAA’s members companies. Id. at ¶¶ 82 – 89. 16, 141.
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`Defendant RIAA’s DMCA Notices have caused third parties to believe it is engaging in
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`illegal and unlawful conduct. Id. at ¶ 108. In response, Yout’s customers cancelled their
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`subscriptions, and PayPal shut down Yout’s account, all causing Yout significant damages. Id. at
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`¶¶ 108 – 111.
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`Additionally, the Yout service is the entirety of Plaintiff Yout’s business and sole source
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`of revenue, and currently it is not fully generating income because of the RIAA’s actions. See
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`generally Second Am. Compl. In Silverstein v. Penguin Putnam, Inc., where the defendant was
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`accused of copyright infringement based on a book of poems, the court held that removing the
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`book from the marketplace and ceasing its sales will undeniably cause injury. Silverstein v.
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`Penguin Putnam, Inc., 2003 U.S. Dist. LEXIS 9901, at *4-5 (S.D.N.Y. June 11, 2003). However,
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`the court found that the defendant would not be irreparably injured absent a stay because, as the
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`defendant was a major book publisher, removing one book would not gravely injure the party. Id.
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`Unlike in Silverstein, where the defendant was a major book publisher and the removal of one
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`book within the marketplace was at issue, here Plaintiff Yout is a small, limited liability
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`company in which the entirety of its livelihood, goodwill, and business are at issue. Second Am.
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`Compl. ¶¶ 2, 149-167; see also Silverstein at *4-5. Yout’s ability to serve its customers has been
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`handicapped by the RIAA’s actions. The only result of a stay would be to delay a decision on the
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`shifting of attorneys’ fees which, in the instant matter, does no harm to RIAA while significantly
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`harming Yout and the public interest.
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`Due to the significant monetary and reputational damages already suffered from
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`Defendant RIAA’s DMCA notices, Plaintiff Yout will suffer irreparable harm if the court does
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`not grant the Motion to Stay Attorneys’ Fees Pending Appeal. Further, it would be quite difficult
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`for Yout to satisfy Defendant RIAA’s Motion for Attorneys’ Fees while at the same time
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`pursuing this very important appeal which, as noted above, would advance the public interest.
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`On the other hand, Defendant RIAA is in a much better financial position to withstand
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`such a stay during the pendency of the appeal. As noted on its website, Defendant RIAA is a
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`large trade organization that “supports and promotes the creative and financial vitality of the
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`major music companies.” Second Am. Compl. ¶¶ 3-4, n. 1. Further, the RIAA reports that the
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`recording industry it represents enjoyed $15 billion in revenue in 2021 alone. See
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`https://www.riaa.com/wp-content/uploads/2022/03/2021-Year-End-Music-Industry-Revenue-
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`Report.pdf, last visited November 30, 2022. To the extent that any modification to the Court’s
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`judgment which may be mandated by the Second Circuit, if any, would impact the distribution of
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`fees, this likewise weighs in favor of a stay in that once they are paid, steps must be taken for
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`Case 3:20-cv-01602-SRU Document 67 Filed 12/01/22 Page 7 of 9
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`their return or adjustment. This would impact both parties. As a result, these two factors weigh
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`heavily in favor of the requested stay.
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`C.
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`Plaintiff Yout is Likely to Succeed on the Merits on Appeal.
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`When determining the likelihood of success on the merits, the courts typically look to
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`whether “there are ‘serious questions’ going to the merits of the dispute and the applicant is able
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`to establish that the balance of hardships tips decidedly in its favor.” In re A2P SMS Antitrust
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`Litig., No. 12-CV-2656, 2014 U.S. Dist. LEXIS 120323, 2014 WL 4247744, at *2 (S.D.N.Y.
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`Aug. 27, 2014) (quoting Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund,
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`Ltd., 598 F.3d 30, 35 (2d Cir. 2010). In the present case, Defendant RIAA’s Motion for
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`Attorneys’ Fees raises issues that are the subject of the appeal and incorporates elements of the
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`parties’ arguments that are to be reviewed by the Second Circuit. Furthermore, to the extent the
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`Second Circuit mandates any modification to the Court’s judgment that impacts the distribution
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`of fees, the potential for this action weighs in favor of a stay as once fees are paid, steps must be
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`taken for their return or adjustment.
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`It is difficult to assess a likelihood of success on the merits given the lack of any reported
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`case directly on point on the issues appealed. Further, as noted above, numerous services
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`utilizing similar technology are impacted by the appeal. The difficulty persists because in
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`determining whether to grant this stay, this Court must evaluate the likelihood that its own ruling
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`will be overturned. As such, Yout respectfully requests that the Court abstain from doing so and,
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`based on the other three factors which weigh heavily in favor of a stay, grant Plaintiff Yout’s
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`Motion to Stay this matter specifically with respect to attorneys’ fees and costs pending appeal.
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`CONCLUSION
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`WHEREFORE, based on the foregoing, the Plaintiff respectfully requests this Court to
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`grant Plaintiff’s Motion for Stay of Attorneys’ Fees Pending Appeal. Prior to filing, Plaintiff’s
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`counsel contacted Defendant RIAA’s counsel asking for an agreed stay pending appeal.
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`Defendant RIAA’s counsel denied this request. Therefore, this motion is filed as opposed.
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`Alternatively, Plaintiff asks for an extension of 28 days in which to file Yout’s response to
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`Defendant’s Motion for Attorneys’ Fees which shall include a request for additional fee and
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`billing records and testimony regarding the reasonableness of fees especially given the exorbitant
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`hourly rate requested by the RIAA.1
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`Dated: Chicago, Illinois
`December 1, 2022
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`Respectfully submitted,
`YOUT LLC
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` /s/ Charles Lee Mudd Jr.
` By: One of Its Attorneys
` Charles Lee Mudd Jr.
` MUDD LAW
`411 S. Sangamon Street
`Suite 1B
` Chicago, Illinois 60607
` 312.964.5051 Telephone
` 312.803.1667 Facsimile
`clm@muddlaw.com
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`1 “RIAA is seeking to recover fees at a rate of $875/hour for Ms. Ehler, $630/hour for associates, and $375/hour for
`paralegals.” ECF Doc. 65-7, ¶5.
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`Case 3:20-cv-01602-SRU Document 67 Filed 12/01/22 Page 9 of 9
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`/s/ Charles Lee Mudd Jr.
`Charles Lee Mudd Jr.
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`CERTIFICATE OF SERVICE
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`I, Charles Lee Mudd Jr., do hereby certify that service of this PLAINTIFF’S MOTION
`TO STAY DEFENDANT RIAA’S MOTION FOR ATTORNEYS’ FEES shall be served
`upon (a) all parties and/or their counsel having filed appearances in this action through the
`automated electronic case filing by electronic filing; (b) all parties listed in the attached Service
`List by sending said document by electronic mail on this 1st day of December 2022; and, (c)
`where an electronic mail address is not available for a party, to the known physical address(es)
`identified below on December 1, 2022.
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`SERVICE LIST
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`To: All parties and/or their counsel have filed appearances in this matter.
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