Arista Records LLC et al v. Lime Wire LLC et al

Filing 189

DECLARATION of Elizabeth Cuneo in Opposition re: 168 MOTION to Strike Plaintiffs' Exhibits Filed as Part of Plaintiffs' Opposition to Defendants' MSJ and Defendants' Motion to Strike., 165 MOTION to Strike Plaintiffs' Exhibits Filed as Part of Plaintiffs' Opposition to Defendants' MSJ and Defendants' Motion to Strike.. Document filed by Capitol Records, Inc., Elektra Entertainment Group, Inc., Interscope Records, Laface Records LLC, Motown Record Company, L.P., Arista Records LLC, Priority Records LLC, Sony BMG Music Entertainment, UMG Recordings, Inc., Virgin Records America, Inc., Warner Bros. Records Inc., Atlantic Recording Corporation, BMG Music. (Forrest, Katherine)

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CUNEO DECLARATION UNITED SOUTHERN STATES DISTRICT OF COURT NEW YORK DISTRICT RECORDING LLC; ATLANTIC CAPITOL RECORDS CORPORATION; MUSIC; INC.; ELEKTRA ENTERTAINMENT GROUP INC.; INTERSCOPE LAFACE RECORDS RECORD RECORDS; LLC; MOTOWN RECORDS COMPANY, L.P.; PRIORITY LLC; SONY BMG MUSIC UMG ENTERTAINMENT; RECORDINGS, INC.; VIRGIN RECORDS AMERICA, INC.; and WARNER BROS. RECORDS INC., BMG ARISTA RECORDS 06 Civ. ECF 5936 (GEL) CASE Plaintiffs, V. LIME GREG LIMITED WIRE GROUP LLC; LIME LLC; MARK GORTON; and M.J.G. LIME WIRE FAMILY BILDSON; PARTNERSHIP, Defendants. DECLARATION OPPOSITION OPPOSITION OF PLAINTIFFS' TO TO OF ELIZABETH CUNEO MOTIONS MOTION TO AND IN FURTHER FOR TO SUPPORT OF JUDGMENT PLAINTIFFS' AND AS IN DEFENDANTS' DEFENDANTS' OPPOSITION JUDGMENT SUMMARY STRIKE EXHIBITS MOTIONS STRIKE FILED FOR PART DEFENDANTS' MOTION TO SUMMARY I, ELIZABETH 1. I am a CUNEO, hereby declare with the law as follows: legal assistant firm of Cravath, Swaine & Moore LLP, counsel for plaintiffs in the above-captioned defendants' motions action. I submit this declaration and in further in support of Plaintiffs' support of of plaintiffs' opposition to to for summary Strike Exhibits judgment Filed as plaintiffs' opposition Opposition to defendants' Motions Motion to Part Defendants' 2. On for Summary Judgment, I accessed filed November 7, 2008. September 7, 2008, the website http://www.gutenberg.org A Double Barreled and searched for the the following works of Mark Twain: A Dog's Tale, Detective Story, Captain Stormfield's The Man That Visit to Heaven, On the Decay of American the Art of Lying, and ls Shakespeare Dead?, Sawyer Abroad. Dead? which Corrupted Hadleyburg, The text Claimant, for Is Tom I found is available that plain versions of all of these works (except directly Shakespeare the in MP3 format) 340 are available on for download from Project and Gutenberg website. correct Plaintiffs' Ex. (submitted results September 26, 2008) works on consists of true copies of printouts On of my search for these I listened the Project Gutenberg III" and website. 3. September 6, 2008, the CD to the songs "Garden "Gasaholic" and provided that the song on produced by defendants III" on at Bates LW DE 2461415 (Ex. 496) and 33 found "Garden this CD has on a length a of approximately of 4 minutes 13 minutes seconds and that the song "Gasaholic" this CD has length approximately and 7 seconds. 4. Leaf On September 4, 2008, concert I searched on the Internet Archive website for Tea Green's Tea Leaf March 3, 2005 March but I was unable at to locate it. However, I found recordings from Green's 5, 2005 concert http://www.archive.org/details/tlg2005-03songs "The Garden 05.flacl6. Plaintiffs' screenshots downloaded found that From this website, I downloaded the (Part III)" and "Gasaholic". and correct Ex. 345 (submitted and on September 26, 2008) consists of true copies to of of this website of screenshots from the folder I listened on my computer that which I these songs. "The On September 6, 2008, (Part III)" has has a a to the songs I downloaded and the song the Garden length of of approximately 5 minutes and 6 seconds and that song On "Gasaholic" length approximately the website 12 minutes and 23 seconds. 5. September 23, 2008, Plaintiffs' I accessed http://americasarmy.com/downloads/. contains a true Ex. 364 (submitted I took on September 26, 2008) all the and correct copy of a printout from -2- this website. steps necessary for downloading directly from the America's Army game and found install that this game the is available for download this website, without On having to or use LimeWire software. 6. September 23, 2008, Plaintiffs' a I accessed the website http://www.berkleeshares.com/voice. contains a Ex. 365 (submitted on September 26, 2008) all the true and correct copy of printout from lessons and this website. that these I took steps necessary are for for downloading download Berklee Shares music found music lessons the available software. directly 7. from this website, without having to install or use LimeWire On September 23, 2008, on I accessed the website 1 had made http://dl.nin.com/theslip/signup (previously, website of which When August 25, on 2008 a printout from this and correct plaintiffs' on Ex. 369 (submitted September 26, 2008) for "the is a true copy). website I clicked the link regarding the license slip", Plaintiffs' I was redirected to the http://creativecommons.org/licenses/by-nc-sa/3.0/us/. is a true Ex. 370 (submitted on September 26, 2008) 8. and correct copy of a printout from this website. On August 25, 2008, I accessed Plaintiffs' the website Ex. http://www.jamendo.com/en/alburn/3661. consists of a true 376 (submitted I was on September 26, 2008) to and correct copy and of a printout from this website. able download the songs use "Breathe", "Listen", the "Struttin'" directly from this website, without having to install or LimeWire 9. software. I accessed the websites http://tryad.org/discography.php (on August 25, and 2008), ht-tp://www.myspace.com/tryad (on September 4, 2008), http://freealbums.blogsome.com/2008/06/14/tryad-listen/(on August Ex. 377 25, 2008). Plaintiffs' (submitted on September 26, 2008) consists of true and correct copies of printouts from -3- these websites. I found that links on these websites for Tryad's album "Listen" directed me to the jamendo.com 10. website (see supra 8). I accessed On August 25, 2008, the website Ex. 379 http://www.marquisclassics.corn/319_start.asp. 2008) consists the song "Start of a true Plaintiffs' from (submitted I was on September 26, to and correct copy this of a printout this website. to install able download Again" directly from website, without having or use the LimeWire software. 11. On September 22, 2008, I accessed the website http://www.epitonic.com/index.j sp?refer=http%3 A%2F%2Fwww.epitonic.com%2Fartists%2Fa mericananalogset.html. and correct Plaintiffs' Ex. 380 (submitted I was on September 26, 2008) to consists of a true copy of a printout from this website. able download the song "The Only One" directly from this website, without On having to install or use the LimeWire soRware. 12. August 25, 2008, I accessed the website http://music.download.com/appleseedcast/3600-8586_32-100064490html. (submitted website. I on Plaintiffs' Ex. 381 September 26, 2008) able to consists of a true and correct copy from of a printout from website, without this was download the the song "Fight Song" directly this having to install or use LimeWire software. 13. I accessed the websites http://craphound.corn/down/download.php (on September 5, 2008), http://www.gutenberg.org/etext/8086 (on August 25, 2008), http://www.gutenberg.org/dirs/etext05/dornkgl0h.htm (on September 4, 2008), http://www.feedbooks.com/book/194 September 26, 2008) all the consists of true and (on August 25, 2008). Plaintiffs' and correct Ex. 382 (submitted websites. on copies and Out of printouts from these I took steps necessary for downloading "Down In the Magic Kingdom" and found that it -4- is available for download directly from these websites, without having to install or use the LimeWire software. 14. I accessed the websites http://www.archive.org/details/MLKDream (on August 25, 2008), http://www.americanrhetoric.com/top100speechesall.html (on August 25, 2008), http://seattletimes.nwsource.com/special/mlk/king/speeches.html (on August 25, 2008), and http://blog.lextext.corn/blog/_archives/2006/1/15/1676937.html (on August 27, 2008). Ex. 383 Plaintiffs' (submitted websites. on September 26, 2008) was consists of true and correct copies Luther of printouts King's the from these I able to download these audio and text files of Martin "I Have a Dream Speech" directly from websites, without having to install or use LimeWire software. 15. On September 4, 2008, I accessed the websites http://www.gutenberg.org/etext/16780, http://www.constitution.org/usdeclar.pdf, and http://manybooks.net/titles/americau1678016780-8.html. September 26, 2008) able to Plaintiffs' of Ex. 384 (submitted websites. on consists of true and correct copies printouts from these from these I was download or use the Declaration the of Independence directly websites, without having to install LimeWire On sottware. the websites 16. August 25, 2008, I accessed http://www.gpoaccess.gov/constitution/index.html, http://www.usconstitution.net/const.html, http://www.law.comell.edu/constitution/constitution.overview.html. (submitted websites. without I on and Plaintiffs' Ex. 385 September 26, 2008) able to consists of true and correct copies of printouts from these from these was view or download the LimeWire the U.S. Constitution directly websites, having to install or use software. -5- 17. On August 25, 2008, I accessed the websites Plaintiffs' http://shakespeare.mit.edu Ex. 387 and http://www.bibliomania.com/0/6/3/frameset.html. consists of true and correct (submitted on September 26, 2008) able to copies on of printouts from these websites. websites, without having to I was view various plays software. of Shakespeare directly these install or use the LimeWire I declare under penalty of perjury that the above is true and correct. Executed on December 5, 2008 Elizabeth Cuneo -6-