Brave New Films 501 (C)(4) v. Weiner et al

Filing 77

Declaration in Support of 74 MOTION for Summary Judgment and Notice of Motion filed byMichael Weiner. (Related document(s) 74 ) (Shapiro, Benjamin) (Filed on 5/8/2009)

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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 Benjamin Aaron Shapiro (SBN 254456) 12330 Magnolia Blvd., #114 Valley Village, CA 91607 Telephone: (818) 620-0137 Attorney for Defendant MICHAEL WEINER aka MICHAEL SAVAGE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION BRAVE NEW FILMS 501(c)(4), Plaintiff, vs. MICHAEL WEINER aka MICHAEL SAVAGE and ORIGINAL TALK RADIO NETWORK, INC., Defendants ) ) ) ) ) ) ) ) ) ) Case No.: CV 08-4703 SI DECLARATION OF RONALD H. SEVERAID IN SUPPORT OF DEFENDANT MICHAEL WEINER aka MICHAEL SAVAGE'S MOTION FOR SUMMARY JUDGMENT Date: Time: Location: JUNE 12th, 2009 9:00 a.m. Courtroom 10 Honorable Susan Illston I, RONALD H. SEVERAID, hereby declare that: 1. California. 2. I am one of the California attorneys for defendant THE ORIGINAL TALK I am an attorney at law duly licensed to practice before all courts of the State of RADIO NETWORK, INC. ("OTRN" or "Defendant"), and am a member of the law firm of Severaid & Glahn, P.C. 3. I have personal knowledge of all matters addressed in this declaration, and could testify competently thereto if called upon to do so. 4. I am also the Executive Vice President of OTRN and now spend most of my office time at the corporate office of OTRN. 1 DECLARATION OF RONALD H. SEVERAID IN SUPPORT OF SAVAGE MOTION FOR SUMMARY JUDGMENT Case No. CV 08-4703 SI 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 5. OTRN has produced and syndicated "The Michael Savage Show" (the "Show") for approximately eight years. Defendant MICHAEL WEINER, aka MICHAEL SAVAGE ("Savage") serves as the host of the Show for OTRN under contract to OTRN. 6. OTRN is the holder of the copyrights to the Show and all of the weekday programs of the Show, with one exception. 7. Prior to September 29, 2008, OTRN formally assigned the copyright for the October 29, 2007 broadcast of the Show (the "10/29/07 Program") to Savage. 8. On or before September 29, 2008, I learned from Benjamin A. Shapiro ("Shapiro"), a Southern California attorney that OTRN and I had recently begun working with, that he had discovered the existence of hundreds of videos containing portions of the Show posted on YouTube. 9. I was aware that OTRN had not granted any authorization to post video containing content from the Show on YouTube, and that such a large archive of searchable videos of content from the Show would be damaging to OTRN's programs of making certain archived content from the Show available to persons under paid membership programs. 10. As a result, I requested that Shapiro review the content of the Show posted on YouTube and prepare the initial draft of an initial letter to YouTube demanding that it remove content of the Show improperly posted on YouTube's website. 11. After investigating the specifics of the postings further, Shapiro submitted a draft letter and supporting attachment listing 259 videos which he had identified as videos posted on YouTube which should be removed as containing content of the Show posted improperly on YouTube in violation of the copyrights for the Show. 12. I am familiar with the September 29, 2008 letter from Carter Glahn to You Tube at issue in this Action (the "9/29/08 Letter"). The authorization and request to Shapiro to review underlying videos at issue in the 9/29/08 Letter and prepare the first draft of the 9/29/08 Letter was given by me, based solely on communications between Shapiro and me. The authorization and request to Carter Glahn ("Glahn") to issue the 09/29/08 Letter was given by me, to Glahn, based on my separate communications with Shapiro. Neither Savage nor any 2 DECLARATION OF RONALD H. SEVERAID IN SUPPORT OF SAVAGE MOTION FOR SUMMARY JUDGMENT Case No. CV 08-4703 SI 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 representatives of Savage participated in, or were informed of, or communicated any input of any kind, whether directly or indirectly, to me, with respect to any of such communications, and I did not communicate any directions to either Shapiro or Glahn on any basis other than as an independent determination made solely on my part on behalf of OTRN. 13. In all of such communications, I acted on behalf of OTRN as the principal, and neither I nor OTRN was acting as an agent for Savage. Similarly, neither I nor OTRN had any understanding or expectation, whether from Savage or any other person or entity, that OTRN was acting as an agent for Savage with respect to any action at issue in this Action. 14. Indeed, one of the points I did check for in my review of the 9/29/08 Letter was to be sure that it was clear that the 9/29/08 Letter was being issued on behalf of OTRN, and that the 9/29/08 Letter was not speaking "for the separate rights Savage" or of "any other parties" in any respect, in order to ensure that it was clear that OTRN was issuing the 9/29/08 Letter exclusively on its own behalf. 15. As OTRN was proceeding independently with respect to its own copyright claims with respect to the discovery of the 259 videos on You Tube containing content from the Show, neither Savage nor any representative of Savage was notified that a removal demand was being sent to YouTube. No information concerning the issuance of such demand was sent to Savage or any representative of Savage after the fact (at least prior to the commencement of this Action). I was the coordinator of all communications relating to that demand, and there were no communications from or to Savage concerning that demand prior to the time that he learned that he had been named as a defendant in this Action. I declare under penalty of perjury that the foregoing is true and correct and that this declaration is executed under the laws of the State of California on the 8th day of May, 2009, at Rogue River, Oregon. /s/ Ronald H. Severaid RONALD H. SEVERAID 3 DECLARATION OF RONALD H. SEVERAID IN SUPPORT OF SAVAGE MOTION FOR SUMMARY JUDGMENT Case No. CV 08-4703 SI 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 PROOF OF SERVICE BY E-MAIL I am employed in the County of Los Angeles, California. I am over the age of eighteen years and not a party to the within case. My business address is 12330 Magnolia Boulevard Suite 114, Los Angeles, CA, 91607. On March 5, 2009, I served the attached DECLARATION OF RONALD H SEVERAID IN SUPPORT OF DEFENDANT MICHAEL WEINER aka MICHAEL SAVAGE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT on the interested parties in the above captioned action by E-mail as follows: Tony Falzone falzone@stanford.edu William Abrams William.abrams@bingham.com Ronald H. Severaid rhseveraid@sbcglobal.net Carter Glahn cglahn@sbcglobal.net I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on May 8, 2009 at Los Angeles, California. /s/ Benjamin Shapiro Benjamin Shapiro 12330 Magnolia Blvd., #114 Valley Village, CA 91607 (818) 620-0137 Bshapiro708@gmail.com Attorney for Defendant MICHAEL WEINER aka MICHAEL SAVAGE 4 DECLARATION OF RONALD H. SEVERAID IN SUPPORT OF SAVAGE MOTION FOR SUMMARY JUDGMENT Case No. CV 08-4703 SI