Case 3:20-cv-01602-SRU Document 69 Filed 12/22/22 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`Case No. 3:20-cv-01602-SRU
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`December 22, 2022
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`Defendants.
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`MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF YOUT LLC’S MOTION
`TO STAY DEFENDANT RIAA’S MOTION FOR ATTORNEYS’ FEES [DKT. 67]
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`YOUT LLC,
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`Plaintiff,
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`vs.
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`THE RECORDING INDUSTRY
`ASSOCIATION OF AMERICA, INC. and
`DOE RECORD COMPANIES 1-10,
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`Case 3:20-cv-01602-SRU Document 69 Filed 12/22/22 Page 2 of 13
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`INTRODUCTION..............................................................................................................1
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`BACKGROUND ................................................................................................................1
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`III. ARGUMENT ......................................................................................................................2
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`A.
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`B.
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`Yout Waived Its Opposition To RIAA’s Motion For Attorneys’ Fees ...................2
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`Yout’s Appeal Is Not A Basis For A Stay—Courts Regularly Decide
`Attorneys’ Fees While An Appeal Is Pending Because It Is Efficient ....................4
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`C.
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`Yout Has Not Met Its Burden To Show Circumstances Meriting A Stay ...............5
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`1.
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`2.
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`3.
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`4.
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`Yout Does Not Argue Likelihood Of Success Favors A Stay .....................6
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`Yout Offers No Evidence Of Irreparable Harm ...........................................7
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`RIAA Would Be Substantially Injured By A Stay ......................................8
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`The Public Interest Favors Protecting Copyrighted Works And
`Deciding RIAA’s Motion For Attorneys’ Fees ...........................................8
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`IV. CONCLUSION ..................................................................................................................9
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`i
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`Case 3:20-cv-01602-SRU Document 69 Filed 12/22/22 Page 3 of 13
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`TABLE OF AUTHORITIES
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`Page
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`FEDERAL CASES
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`Baker v. Urban Outfitters, Inc.,
`431 F.Supp.2d 351 (S.D.N.Y. 2006)..........................................................................................8
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`BIAX Corp. v. NVIDIA Corp.,
`No. 09-cv-01257-PAB-MEH, 2012 WL 1949002 (D. Colo. May 30, 2012) ............................4
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`Cohen v. Met. Life Ins. Co.,
`No. 00 Civ. 6112 (LTS)(FM), 2007 WL 4208979 (S.D.N.Y. Nov. 21, 2007) ..........................4
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`Estevez v. Berkeley College,
`No. 18-CV-10350 (CS), 2022 WL 1963659 (S.D.N.Y. June 6, 2022) ..................................4, 6
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`Fox Television Stations, Inc. v. FilmOn X LLC,
`966 F. Supp. 2d 30 (D.D.C. 2013) .............................................................................................7
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`Green v. United States Department of Justice,
`No. 21-5195, 2022 WL 17419644 (D.C. Cir. Dec. 6, 2022) .................................................1, 6
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`Horror Inc. et al. v. Miller et al.,
`No. 3:16-cv-01442 (SRU), 2022 WL 4473426 (D. Conn. Sept. 26, 2022) ...............................4
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`Jones v. Colvin,
`No. 3:16-cv-1685 (VAB), 2018 WL 4845744 (D. Conn. Oct. 4, 2018) ....................................3
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`Landis v. N. Am. Co.,
`299 U.S. 248 (1936) ...................................................................................................................5
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`Louis Vuitton Malletier S.A. v. LY USA, Inc.,
`676 F.3d 83 (2d Cir. 2012).........................................................................................................5
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`Miller v. City of Ithaca,
`No. 3:10-cv-00597, 2019 WL 1470249 (N.D.N.Y. April 3, 2019) ...........................................6
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`Nken v. Holder,
`556 U.S. 418 (2009) ...........................................................................................................1, 5, 6
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`Turley v. N.Y. City Police Dept.,
`No. 93 Civ. 8748(SAS), 1998 WL 760243 (S.D.N.Y. Oct. 30, 1998) ......................................4
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`In re Unisys Corp. Retiree Medical Benefits Erisa Litigation,
`No. 03-3924, 2007 WL 4287393 (E.D. Pa. Dec. 4, 2007) .........................................................4
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`Warner Bros. Ent., Inc. v. RDR Books,
`575 F. Supp. 2d 513 (S.D.N.Y. 2008)........................................................................................8
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`Weyant v. Okst,
`198 F.3d 311 (2d Cir. 1999).......................................................................................................5
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`White v. New Hampshire Dept. of Employment Sec.,
`455 U.S. 445 (1982) ...................................................................................................................5
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`Winter v. NRDC, Inc.,
`555 U.S. 7 (2008) .......................................................................................................................7
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`RULES
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`Fed.R.Civ.P. 54 ............................................................................................................................4, 5
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`Fed.R.Civ.P. 62 ................................................................................................................................5
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`L.R. 7(a)(2) ..................................................................................................................................1, 3
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`L.R. 7(b)(3) ......................................................................................................................................3
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`Case 3:20-cv-01602-SRU Document 69 Filed 12/22/22 Page 5 of 13
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`I.
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`INTRODUCTION
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`On October 31, 2022, RIAA filed a Motion for Attorneys’ Fees to recover the fees it incurred
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`defending against Yout’s objectively unreasonable lawsuit. Dkt. 65. RIAA agreed to Yout’s request
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`for an extension of time to December 1, 2022 to file its response, but did not agree to a stay of
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`RIAA’s motion pending appeal because such a stay is not warranted. Ehler Decl. ¶ 6.
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`Yout’s request for a stay should be denied. First, by failing to file its response by the
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`December 1 deadline (or since then), Yout has waived any opposition to RIAA’s Motion for
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`Attorneys’ Fees. L.R. 7(a)(2). Second, there is no reasonable basis for staying RIAA’s Motion for
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`Attorneys’ Fees. The case law clearly provides that judicial economy favors deciding fee motions
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`while they are fresh in the Court’s mind and to provide an opportunity for further efficiency by
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`consolidating with the merits issues into a single appeal. Yout has failed to justify deviation from
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`this routine practice. None of the Nken factors favors a stay of RIAA’s motion. Nken v. Holder,
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`556 U.S. 418 (2009). Yout does not contend it is likely to succeed on the merits of its appeal, and
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`the recent D.C. Circuit decision in Green v. United States Department of Justice makes Yout’s
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`prospect of success even less likely. No. 21-5195, 2022 WL 17419644 (D.C. Cir. Dec. 6, 2022).
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`Nor does Yout support its motion with a cogent explanation or a shred of evidence regarding how
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`resolution of RIAA’s motion would cause Yout irreparable harm. In addition, the public interest is
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`furthered by protecting the rights of music creators and discouraging meritless lawsuits like this one.
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`For the reasons set forth below, RIAA respectfully requests that the Court deny Yout’s
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`Motion to Stay and grant RIAA’s unopposed Motion for Attorneys’ Fees.
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`II.
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`BACKGROUND
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`After this Court granted RIAA’s Motion to Dismiss, undersigned counsel reached out to
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`Yout’s counsel to discuss RIAA’s fee motion and a potential resolution. Ehler Decl. ¶ 2.
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`Counsel was not available for a meet-and-confer and then stated that he no longer represented
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`1
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`Yout. Id. ¶¶ 2, 3. Subsequently, new appellate counsel appeared for Yout in the Second Circuit.
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`Ehler Decl. Id. ¶ 4.
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`On October 31, 2022, RIAA moved for attorneys’ fees. Dkt. 65. On November 17,
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`2022, counsel for Yout informed counsel for RIAA that he actually would represent Yout for the
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`purposes of RIAA’s motion for fees and asked for agreement to a stay. Ehler Decl. ¶ 6. The
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`same day, counsel for RIAA informed counsel for Yout that RIAA did not consent to the stay
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`because there is no reason for it. Id. On November 21, 2022 (the deadline for Yout to file its
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`opposition to RIAA’s Motion for Attorneys’ Fees), Yout’s counsel asked for an extension of
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`time to respond to RIAA’s motion. Id. ¶ 7. RIAA consented and Yout filed a Motion for
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`Extension of Time to Respond to Motion for Attorneys’ Fees to extend its opposition deadline
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`until December 1, 2022, which the Court granted nunc pro tunc. Dkt. 66; Dkt. 68. However,
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`Yout never filed an opposition to RIAA’s Motion for Attorneys’ Fees. Instead, Yout filed a
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`Motion to Stay. Dkt. 67 (“Mot.”). In the last paragraph of Yout’s motion, Yout stated that it
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`would like a second extension of 28 days (i.e., to December 29) to oppose RIAA’s motion if
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`Yout’s request for a stay is not granted.1 See id. at 8.
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`III. ARGUMENT
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`Yout Waived Its Opposition To RIAA’s Motion For Attorneys’ Fees
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`A.
`After the Court granted Yout’s first request for an extension, Yout’s deadline to oppose
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`RIAA’s Motion for Attorneys’ Fees was December 1, 2022. Yout did not meet that deadline.
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`Local Rule 7(a)(2) provides that “[f]ailure to submit a memorandum in opposition to a motion
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`may be deemed sufficient cause to grant the motion, except where the pleadings provide
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`1 Yout did not seek RIAA’s consent before including this request for a second extension in its
`Motion to Stay.
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`2
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`sufficient grounds to deny the motion.” L.R. 7(a)(2). Courts have found sufficient basis to
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`award attorneys’ fees after determining that the movant was the prevailing party, that the motion
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`was timely filed, and that the fees requested were reasonable. See Jones v. Colvin, No. 3:16-cv-
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`1685 (VAB), 2018 WL 4845744, at *1 (D. Conn. Oct. 4, 2018).
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`Without any substantive defense or opposition to RIAA’s Motion for Attorneys’ Fees,
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`Yout seeks only to delay resolution and the potential award of fees. The Court should reject
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`Yout’s improper delay tactics. Counsel for RIAA reached out to counsel for Yout on multiple
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`occasions to discuss the fee motion and potential resolution of the matter before filing its Motion
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`for Attorneys’ Fees. Ehler Decl. ¶ 2. Yout did not meet-and-confer at that time. Yout instead
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`improperly waited until the day its opposition was due to request an extension (to which RIAA
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`consented and which the Court granted nunc pro tunc). Instead of meeting the extended
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`deadline, Yout now seeks a further improper 28-day extension as an “[a]lternative[]” if the Court
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`denies its motion. Mot. at 8. In neither instance has Yout justified the “compelling
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`circumstances” that warrant deviation from the normal rule that “[a]ll motions for extension of
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`time shall be filed at least three (3) business days before the deadline sought to be extended.”
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`L.R. 7(b)(3) (emphasis added). Yout’s failure to follow the rules should not be rewarded.2
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`2 Having failed to file an opposition to RIAA’s motion, Yout now suggests that if given the
`opportunity it will “include a request for additional fee and billing records and testimony
`regarding the reasonableness of fees” claiming such rates are “exorbitant.” Mot. at 8. Not only
`would such a request be untimely, it would also be unwarranted. RIAA established that its rates
`and time spent on this case were reasonable. See Dkts. 65-8, 65-9 (Aminirad Decl. Exs. 1, 2
`(detailed time entry and calculations)); Dkts. 65-3, 65-4 (Ehler Decl. Exs. A, B (attorney
`information and American Intellectual Property Law Association survey)).
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`3
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`B.
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`Yout’s Appeal Is Not A Basis For A Stay—Courts Regularly Decide
`Attorneys’ Fees While An Appeal Is Pending Because It Is Efficient
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`In deciding whether to stay a motion for attorneys’ fees pending appeal, courts have
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`found “[t]he weight of authority ... is that the usual course is for the Court to consider attorneys’
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`fees promptly after the merits decision rather than stay the Fee Petition.” In re Unisys Corp.
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`Retiree Medical Benefits Erisa Litigation, No. 03-3924, 2007 WL 4287393, at *2 (E.D. Pa. Dec.
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`4, 2007); see also BIAX Corp. v. NVIDIA Corp., No. 09-cv-01257-PAB-MEH, 2012 WL
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`1949002, at *1 (D. Colo. May 30, 2012) (“the Court cannot agree with plaintiff’s contention that
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`courts [defer resolution of a fees request until after the appeal] routinely”). Courts in the Second
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`Circuit regularly decide motions for attorneys’ fees while an appeal is pending when it is in the
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`interest of judicial economy to do so.3 To be sure, this Court has discretion and “may rule on the
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`claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice.”
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`Fed.R.Civ.P. 54, adv. comm. note to 1993 amendments. This case will not benefit from further
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`delay.
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`Judicial efficiency is served by “resolv[ing] fee disputes . . . while the services performed
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`are freshly in mind.” Fed.R.Civ.P. 54, adv. comm. note to 1993 amendments. This Court
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`recently granted judgment and that decision—as well as the parties’ papers, preparation and
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`3 See Estevez v. Berkeley College, No. 18-CV-10350 (CS), 2022 WL 1963659, at *3 (S.D.N.Y.
`June 6, 2022) (“The Court can dispose of this issue now rather than wait and decide it at even
`greater remove from determination of the merits issue. . . . [T]here appears to be little to gain (by
`way of efficiency) in waiting to address these arguments.”); Cohen v. Met. Life Ins. Co., No. 00
`Civ. 6112 (LTS)(FM), 2007 WL 4208979, at *3 (S.D.N.Y. Nov. 21, 2007) (even pending appeal,
`“the merits of the parties’ positions supports [] an award of attorney’s fees”); Turley v. N.Y. City
`Police Dept., No. 93 Civ. 8748(SAS), 1998 WL 760243, at *1 (S.D.N.Y. Oct. 30, 1998)
`(“declin[ing] to defer ruling on” fee motion “until appeals have been exhausted”; granting
`motion). RIAA recognizes that in Horror Inc. et al. v. Miller et al., No. 3:16-cv-01442 (SRU),
`2022 WL 4473426 (D. Conn. Sept. 26, 2022), this Court denied the prevailing party’s motion for
`attorneys’ fees without prejudice to renewal after the Second Circuit decided the appeal; but that
`case did not involve the possibility of an insolvent party.
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`4
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`Case 3:20-cv-01602-SRU Document 69 Filed 12/22/22 Page 9 of 13
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`argument—are still fresh in mind. Moreover, “piecemeal appeals of merits and fee questions
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`generally are undesirable.” White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445,
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`452 n.14 (1982); Weyant v. Okst, 198 F.3d 311 (2d Cir. 1999) (recognizing “a historic federal
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`policy against piecemeal appeals.”). Fed.R.Civ.P. 54, adv. comm. note to 1993 amendments.
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`Yout argues that it would be inefficient “to the extent” the appeal changes the Court’s
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`judgment because “steps” would need to “be taken” for the “return or adjustment” of those fees.
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`Mot. at 7. But that is not meaningful inefficiency. Rather, it would be inefficient for this case to
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`require multiple appeals to the Second Circuit, one on the merits and the second on the request
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`for fees. If this Court grants RIAA’s motion for attorneys’ fees, the Second Circuit can take the
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`merits and fees issues together for review.
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`Yout Has Not Met Its Burden To Show Circumstances Meriting A Stay
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`C.
`“A stay is not a matter of right,” but “is instead an exercise of judicial discretion.” Nken,
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`556 U.S. at 433 ; see also Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 96 (2d Cir.
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`2012) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). “The party requesting a stay
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`bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken,
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`556 U.S. at 433-34.
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`In considering whether to stay a motion for attorneys’ fees pending appeal, some courts
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`have also looked to the Nken factors for the consideration of a motion to stay execution of a
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`judgment pending appeal4: “(1) whether the stay applicant has made a strong showing that he is
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`likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a
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`4 Yout made its Motion to Stay “pursuant to Rule 62 of the Federal Rules of Civil Procedure.”
`Mot. at 1. Yout does not identify a provision of Rule 62 which supports its motion, and none is
`applicable here. Rule 62 relates to stays of proceedings to enforce a judgment, not to collateral
`proceedings such as a motion for attorneys’ fees.
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`5
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`stay; (3) whether issuance of the stay will substantially injure the other parties interested in the
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`proceeding; and (4) where the public interest lies.” 556 U.S. at 434; see, e.g., Miller v. City of
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`Ithaca, No. 3:10-cv-00597 (BKS/DEP), 2019 WL 1470249, at *1-2 (N.D.N.Y. April 3, 2019)
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`(analyzing the Nken factors in a motion to stay a motion for attorneys’ fees); Estevez, 2022 WL
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`1963659 (same). “The first two factors . . . are the most critical.” Nken, 556 U.S. at 434.
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`Yout Does Not Argue Likelihood Of Success Favors A Stay
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`1.
`Significantly, Yout does not even try to argue that it is likely to succeed on the merits,
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`much less make the “strong showing” contemplated by Nken. See Mot at 7 (“request[ing] that
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`the Court abstain from” “evaluat[ing] the likelihood that its own ruling will be overturned” and
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`“based on the other three factors . . . grant Plaintiff Yout’s Motion to Stay . . .”). Yout goes no
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`further than observing that “[i]t is difficult to assess a likelihood of success.” Mot. at 7. Yet
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`likelihood of success is a necessary showing and a stay will not issue on “a mere ‘possibility’ of
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`relief.” Nken, 556 U.S. at 434.
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`Even if the Court were to look outside the four corners of Yout’s Motion to Stay to assess
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`Yout’s likelihood of success on appeal, Yout is unlikely to succeed for all of the reasons set forth
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`in this Court’s decision granting RIAA’s motion to dismiss. More recent precedent further
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`confirms the correctness of this Court’s ruling. The D.C. Circuit reaffirmed earlier this month
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`that the DMCA protects digital content online from technology designed to bypass code and
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`other measures that protect the underlying files:
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`In this digital age, when content creators choose to make their copyrighted
`materials––like books, movies, and music––available online, they employ
`computer code to block unauthorized access, copying, and use. To fortify the
`protection offered by that code, Congress enacted the Digital Millennium
`Copyright Act, which makes it unlawful to bypass such technological measures.
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`Green, 2022 WL 17419644, at *1; see generally id. (discussing policy behind DMCA and
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`interpreting statute). The D.C. Circuit’s decision is consistent with this Court’s conclusions:
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`6
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`Yout “facially allege[d] that its platform accomplishes a task contrary to YouTube’s restraints”
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`and “Yout’s technology clearly ‘bypasses’ YouTube’s technological measures.” Dkt. 61 (Order
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`Granting MTD at 20, 32 (emphasis added)).
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`Yout Offers No Evidence Of Irreparable Harm
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`2.
`Yout completely fails to meet its evidentiary burden to show that “irreparable injury is
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`likely” in the absence of a stay. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (emphasis in
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`original). Yout claims that “it would be quite difficult” to “satisfy” the requested attorneys’ fees
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`while pursuing its appeal of this Court’s judgment, and that its ability to pursue the appeal would
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`be “crippled” if a stay is not granted. Mot. at. 4, 6. But Yout has failed to submit a declaration
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`or any other admissible evidence to support this claim. Yout cannot rely on conclusory
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`assertions alone to establish irreparable harm. Notwithstanding Yout’s assertions, the record in
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`this case suggests that Yout does not lack resources: Yout admits that its service is still
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`operational, Mot. at 5, and it has hired three new lawyers for the appeal, Ehler Decl. ¶¶ 4, 5.
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`Moreover, even if Yout’s claim were true, it would not constitute irreparable harm—if RIAA’s
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`Motion for Attorneys’ Fees is not stayed, and if this Court awards fees that Yout cannot afford,
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`Yout has the option of posting a bond and appealing that decision.
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`Yout’s other suggestions of harm are irrelevant because they are related to the merits of
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`the case, not to the motion for fees: “RIAA’s DMCA notices have blocked Yout users’ ability to
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`use [Yout.com] with all works,” “caused third parties to believe it is engaging in illegal and
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`unlawful conduct,” and put “the entirety of [Yout’s] livelihood, goodwill, and business [] at
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`issue.” Mot. at 5-6. Those asserted harms would not be cured by a stay of RIAA’s fees motion.5
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`5 Such concerns are also unfounded. See Fox Television Stations, Inc. v. FilmOn X LLC, 966 F.
`Supp. 2d 30, 51 (D.D.C. 2013) (rejecting argument that infringing business “could be ‘crippled’
`by an injunction and that a decision in [the copyright owners’] favor will chill technological
`innovation” as “overstated” because the infringing business did not have a “cognizable interest in
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`7
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`Case 3:20-cv-01602-SRU Document 69 Filed 12/22/22 Page 12 of 13
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`RIAA Would Be Substantially Injured By A Stay
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`3.
`RIAA would be harmed by a stay of its motion. So far, RIAA has paid in excess of
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`$250,000 in attorneys’ fees to defend against this meritless suit. Dkt. 65-1 at 2. While Yout has
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`not submitted any evidence of its financial condition, if its statements are to be believed, it may
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`face difficulty paying a fee award. That is not reason to delay issuing such an award. RIAA will
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`need an enforceable fee award to collect any reimbursement for the substantial fees it has
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`incurred.
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`4.
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`The Public Interest Favors Protecting Copyrighted Works And
`Deciding RIAA’s Motion For Attorneys’ Fees
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`Yout correctly states that copyright protection serves the public interest—but has the
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`analysis exactly backward. “[T]o serve the public interest, copyright law must prevent the
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`misappropriation of the skills, creative energies, and resources which are invested in the
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`protected work.” Warner Bros. Ent., Inc. v. RDR Books, 575 F. Supp. 2d 513, 553 (S.D.N.Y.
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`2008). Those interests are served by protecting creators of music from the massive
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`circumvention of technological measures for which Yout is liable. The Copyright Act also
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`provides for fees to discourage parties from “bringing unreasonable claims based on a
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`cost/benefit analysis that tells such plaintiffs that they can score big if they win and that there
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`will be no adverse consequences if they lose.” Baker v. Urban Outfitters, Inc., 431 F.Supp.2d
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`351, 359 (S.D.N.Y. 2006). These important purposes are served by prompt resolution of the
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`issue of attorneys’ fees.
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`continuing to infringe” and therefore “cannot complain of the harm it will suffer if ordered to
`cease doing so.”).
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`8
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`Case 3:20-cv-01602-SRU Document 69 Filed 12/22/22 Page 13 of 13
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`IV. CONCLUSION
`For the foregoing reasons, RIAA respectfully requests the Court deny Yout’s Motion to
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`Stay, as well as Yout’s alternative request of a further extension of time to file an opposition.
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`RIAA further requests that the Court grant its Motion for Attorneys’ Fees.
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`DATED: December 22, 2022
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`/s/ Rose Leda Ehler
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`Respectfully submitted,
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`GLENN D. POMERANTZ (appearing pro hac vice)
`ROSE LEDA EHLER (appearing pro hac vice)
`SHANNON AMINIRAD (appearing pro hac vice)
`MUNGER, TOLLES & OLSON LLP
`350 South Grand Avenue
`Fiftieth Floor
`Los Angeles, CA 90071-3426
`T: (213) 683-9100
`F: (213) 687-3702
`glenn.pomerantz@mto.com
`rose.ehler@mto.com
`shannon.aminirad@mto.com
`
`JAMES O. CRAVEN (ct18790)
`DAVID NORMAN-SCHIFF (ct30082)
`WIGGIN AND DANA LLP
`One Century Tower
`265 Church Street
`P.O. Box 1832
`New Haven, CT 06508-1832
`T: (203) 498-4400
`F: (203) 782-2889
`jcraven@wiggin.com
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`Attorneys for Defendant Recording Industry
`Association of America, Inc.
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`9
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