UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al

Filing 440

UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al

Doc. 440

1 IRELL & MANELLA LLP Steven A. Marenberg (101033) ([e-mail]) 2 Elliot Brown (150802) ([e-mail]) Brian Ledahl (186579) ([e-mail]) 3 Benjamin Glatstein (242034) ([e-mail]) 1800 Avenue of the Stars, Suite 900 4 Los Angeles, California 90067-4276 Telephone: [phone] Facsimile: [phone] 6 Attorneys for Plaintiffs 7 8 9 10 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28
IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION Plaintiffs, vs. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-07-05744 AHM (AJWx) UMG'S OPPOSITION TO VEOH'S MOTION TO COMPEL THE PRODUCTION OF ADDITIONAL CHAIN-OF-TITLE DOCUMENTS, OR ALTERNATIVELY TO EXTEND VEOH'S DEADLINE TO COMPLETE ITS REVIEW OF UMG'S CHAIN-OF-TITLE DOCUMENTS Filed Concurrently Herewith: Declaration of Carter Batsell in Support of UMG's Opposition Judge: Hon. Andrew J. Wistrich Discovery Cutoff: May 4, 2009 Pretrial Conference: August 3, 2009 Trial Date: August 18, 2009

11 UMG RECORDINGS, INC., et al.,

14 VEOH NETWORKS, INC., et al.,

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Dockets.Justia.com

1 2 3 I. 4 II. 5 III. 6 7 8 9 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

TABLE OF CONTENTS Page INTRODUCTION...........................................................................................1 FACTUAL BACKGROUND ......................................................................... 2 VEOH OFFERS NO BASIS FOR ORDERING A MASSIVELY BURDENSOME PRODUCTION...................................................................7 A. B. C. IV. Production Of All "Chain-Of-Title" Documents Would Impose Undue Burden On UMG .......................................................... 7 Veoh Offers No Basis For Further Production ..................................... 8 Veoh's Request Appears Calculated Solely To Inflict Burdens ................................................................................................. 9

VEOH HAS ALREADY HAD MORE THAN 30-DAYS TO REVIEW UMG'S PRODUCTION ............................................................... 10 CONCLUSION ............................................................................................. 11

12 V.

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1 2 3 Cases

TABLE OF AUTHORITIES Page(s)

4 Nicolas J. Murlas Living Trust v. Mobil Oil Corp., 1995 WL 124186, *5 (N.D. Ill. Mar. 20, 1995).............................................. 8 5 Oxford House, Inc. v. City of Topeka, KS, 2007 WL 1246200 (D. Kan. Apr. 27, 2007) ................................................... 8 6 7 Wright v. AmSouth Bancorporation, 320 F.3d 1198 (11th Cir. 2003)....................................................................... 8 8 Statutes 9 17 U.S.C. § 411.......................................................................................................... 3 10 Fed R. Civ. P. 26(b)(2)(C) ......................................................................................... 8 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

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1 I. 2

INTRODUCTION Veoh previously sought so-called "chain-of-title documents" for all of the

3 copyrighted works at issue in this matter. Veoh claimed that if only UMG produced 4 its documents, Veoh would uncover vast troves of evidence that UMG lacked 5 standing to assert rights in many of the works at issue in this case. The Court 6 granted Veoh's request in part, but limited UMG's obligations to a sample (albeit a 7 sizable sample) of works to be chosen by Veoh. UMG made this very burdensome 8 production. Now Veoh seeks to inflict the far greater burden of producing such 9 documents for all of the works at issue. In support of its request, Veoh fails to 10 identify a single document produced by UMG that purportedly supports Veoh's 11 defenses. Instead, Veoh's sole basis for its request is the fact that UMG 12 independently revised its list of more than 2,400 infringing videos to remove a small 13 number of videos (some of which were part of Veoh's selected sample and some of 14 which were not) and to correct certain other errors (such as typographical errors in 15 the entry of copyright registration numbers as to several songs). Veoh claims that 16 because UMG made these corrections (of its own accord and without any prompting 17 by Veoh), UMG should be compelled to make a massive, undisputedly burdensome 18 production. Veoh's "justification" for its request is completely without substance, 19 and Veoh's request should be denied. 20 First, the production demanded by Veoh would massively burden UMG. 21 Veoh's widespread infringement resulted in the theft of thousands of UMG's 22 copyrighted works. The so-called chain-of-title documents associated with those 23 works comprise hundreds of thousands if not millions of pages of material. Veoh 24 does not dispute that gathering and producing these documents will inflict an 25 enormous burden on UMG. Nor can Veoh dispute that UMG's production of these 26 documents ­ and Veoh's review of these documents, if it reviews them at all ­ is 27 incompatible with the current case schedule. Producing and reviewing the universe 28 of chain-of-title documents will require considerably more time, just as the parties'
IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

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1 edge closer to a summer trial. Simply put, Veoh's demand is unduly burdensome 2 and inconsistent with the current case schedule and should therefore be rejected. 3 Further, Veoh's demand would effectively punish UMG for diligently 4 correcting a small portion of its infringement list. On April 9th, UMG produced 5 chain-of-title documents for a sampling of works selected by Veoh. Veoh has not 6 identified a single defect in the chain-of-title for the sample works. During the 7 parties' meet and confer, UMG pressed Veoh to identify any chain-of-title defect for 8 the sample works. It could identify none. Veoh must come forward with something 9 more than UMG's good faith and diligence to justify the massively burdensome 10 production it now seeks. 11 Finally, as an alternative, Veoh seeks thirty-days to complete its review of the 12 chain-of-title documents for the sample works (despite the fact that Veoh itself 13 proposed the ten-day limitation found in the Court's Order). Veoh has already had 14 more than thirty-days to review UMG's documents, and the Court should therefore 15 reject its alternative request for additional time as moot. 16 17 II. 18 20 For all of these reasons, the Court should deny Veoh's Motion. FACTUAL BACKGROUND Veoh's recounting of the facts relating to this issue contains multiple false Veoh moved to compel UMG to produce all so-called chain-of-title

19 and misleading statements. UMG corrects those errors below. 21 documents for all of the works at issue in this case on multiple occasions. The 22 Court denied Veoh's motions without prejudice multiple times. Veoh re-presented 23 this issue in a motion heard by the Court on December 17, 2008. In connection with 24 that motion, UMG submitted (again) evidence of the massive burden that such a 25 production would inflict on UMG. See generally Declaration of Michael Ostroff 26 (attached as Exhibit C to the Declaration of Brian Ledahl in Support of UMG's 27 Opposition to Veoh's Renewed Motion to Compel Chain of Title Discovery (Dkt. 28
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1 # 247)).1 UMG offered undisputed evidence that the production Veoh sought would 2 cost potentially millions of dollars. Id. UMG questioned the degree to which, even 3 if produced, the documents sought would be used for anything. Veoh was unable to 4 offer any principled argument to support its requests. Among other things, in 5 responding to Veoh's motion, UMG noted that the Copyright Act had recently been 6 amended to render unavailable precisely the kind of challenges Veoh claimed it 7 hoped to make using the material it sought. See 17 U.S.C. § 411(b). When asked by 8 the Court how this statute (amended in October 2008) affected its position, Veoh 9 was unable to offer any response. Batsell Decl., Ex. B (12/17/2008 Hearing 10 Transcript at 115:9-20). 11 On March 5, 2009, the Court ultimately entered an Order requiring UMG to 12 produce chain-of-title documents for a portion of the works infringed by Veoh. See 13 March 5, 2009 Order re: Veoh's Renewed Motion to Compel Plaintiffs to Produce 14 Chain of Title/Rights Information (Docket No. 321) ("March 5, 2009 Order" or the 15 "Order"). The Court struck a balance between the alleged benefit or relevance of 16 the documents sought by Veoh and the burden to UMG of producing such material. 17 Specifically, the Court ordered UMG to produce categories of documents with 18 respect to a portion of the works at issue. The Court gave Veoh the opportunity to 19 select the sample works for which UMG would produce documents. Id. at ¶ 2. 20 The Order contemplated that if, in its review of the documents produced, 21 Veoh "identif[ied] any deficiencies in Plaintiffs' claimed ownership of the sample 22 works-in-suit," Veoh could identify those alleged deficiencies to UMG within ten 23 days after UMG's production. Id. at 4.(b). Veoh ­ not UMG ­ proposed the ten-day 24 time frame, which the Court ultimately ordered. See Batsell Decl., Ex. C (2/18/2009 25 email from R. Calkins to B. Glatstein attaching Veoh's proposed order). 26 For the Court's convenience, UMG has attached a copy of Mr. Ostroff's 27 Declaration to the Declaration of Carter Batsell in Support of UMG's Opposition to Veoh's Motion to Compel Additional Chain-of-Title Documents or to Extend 28 Veoh's Deadline to Complete Its Review ("Batsell Decl.") as Exhibit ("Ex.") A
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On March 9th, Veoh identified works for which UMG would produce "chain-

2 of-title" documents. On April 9th, UMG produced documents relating to the 3 identified works. Batsell Decl. at ¶ 2. Compiling and producing these documents 4 was extremely burdensome. UMG's production even as to the sample of works for 5 which the Court compelled production was almost 100,000 pages of material. Id. 6 Veoh now complains that "UMG produced approximately 100,000 pages in a 7 disorganized and haphazard manner." Mot. at 3:1-2. This complaint is completely 8 false. UMG's production was neither disorganized nor "haphazard." To the 9 contrary, UMG's production is far more helpfully organized than required by the 10 Federal Rules of Civil Procedure. For example, the first document in UMG's chain11 of-title production is an administrative agreement between plaintiff Songs of 12 Universal, Inc. ("SOU") and Dave Grohl; the second, an exclusive songwriter and 13 co-Publishing agreement between SOU and Mr. Grohl; and the third, a copyright 14 registration for "Times Like These," authored by Mr. Grohl. Batsell Decl. at ¶ 3. 15 Veoh identified "Times Like These" in its list of sample works. Declaration of Erin 16 Ranahan in Support of Veoh's Motion ("Ranahan Decl."), Ex. A (3/9/2009 letter 17 from R. Calkins to B. Ledahl). Likewise, in the second group of documents: the 18 first document is a copyright registration for "Just Lose It," authored by Marshall 19 Mathers (p/k/a, Eminem); the second, an administration agreement between SOU 20 and Mr. Mathers; and the third, an agreement between SOU, Plaintiff Universal 21 Music Corp. ("UMC"), and Shady Music Publishing LLC (an entity affiliated with 22 Mr. Mathers) with respect to co-publishing and/or administration of musical 23 compositions acquired from third parties. Batsell Decl. at ¶ 4. Veoh identified "Just 24 Lose It" in its list of sample works. Ranahan Decl., Ex. A (3/9/2009 letter from R. 25 Calkins to B. Ledahl). This organization is neither "disorganized" nor "haphazard" 26 ­ it permits Veoh to easily review the materials and to easily connect them to the 27 identified infringing videos. Veoh offers no explanation of how this organization 28 allegedly hindered its review of the material ­ nor could it.
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Veoh also falsely complains that UMG's production "contained numerous

2 electronic production errors and deficiencies." In point of fact, Veoh identifies a 3 single error in the electronic data provided along with UMG's document production. 4 Mot. at 3:2-6. Though UMG produced its documents on April 9th, Veoh did not 5 identify this minor glitch until April 14. Ranahan Decl., Ex. B. UMG addressed 6 this "problem" within one hour of Veoh's raising it. Id. Moreover, even before this 7 correction, all of the documents were in Veoh's possession, properly organized as 8 discussed above. Batsell Decl. at ¶ 5. The issue related only to the associated data 9 provided along with the documents ­ specifically, the data included additional 10 entries that did not correspond to the documents produced. Id. Veoh does not 11 explain how this small, temporary technical glitch impeded its review. In short, 12 Veoh's arguments about the form of production are simply a distraction. 13 On April 22, 2009 ­ after Veoh should have completed it review, pursuant to 14 the Court's Order ­ UMG agreed to extend Veoh's time to conduct such review by 15 four days. Ranahan Decl., Ex. E. 16 UMG also took affirmative steps on its own to ensure that its list of infringed 17 works was accurate. Specifically, on its own initiative, UMG amended its list of 18 infringements, removing a total of twenty-nine videos (out of more than 2,400) (i.e., 19 about 1%), for various reasons including simple data entry errors, changes in rights 20 due to the passage of time, and other inadvertent inclusions on the list. These 29 21 videos were spread throughout the list of videos previously identified as infringing 22 and were not limited to the smaller number of sample works identified by Veoh 23 pursuant to the Court's March 5 Order.2 24 25 Veoh alleges that UMG's correcting a limited number of typographical errors "caused [it] to waste significant resources searching for copyright 26 registrations that were apparently erroneous." Mot. at 4:27-28. This cannot be true. 27 UMG's April 22nd letter identified only two works from Veoh's list of sample works (Akon's "Smack That" and 50 Cent's "In Da Club") for which the 28 registration numbers were incorrect. Batsell Decl. at ¶ 9. UMG, however, correctly identified these registration numbers for other videos featuring the same works. Id.
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Now, however, having had ample opportunity to review UMG's "chain-of-

2 title" production for more than thirty-days, Veoh has not identified a single 3 document produced by UMG that somehow shows that UMG does not own or 4 control the copyright to one of the works at issue. Veoh has also not identified a 5 single copyright as to which it contends UMG's claim of ownership or control is 6 defective. Instead, Veoh asserts that because UMG, of its own accord, corrected a 7 few, isolated errors on its very long list of infringing videos, Veoh should now be 8 able to force UMG to incur the even greater burden of producing "chain-of title 9 documents" for all of the videos identified as infringing. 10 When the parties conferred (pursuant to the March 5 Order) on April 27, 11 2009, UMG pressed Veoh to explain why this production was necessary, and more 12 specifically, what defects Veoh found that might warrant forcing UMG to undertake 13 this burdensome production. Batsell Decl. at ¶ 10. Veoh admitted that it had not 14 identified a single defect in UMG's ownership over any of the copyrights identified 15 from its review of UMG's production. Id. Veoh further conceded that its sole basis 16 for seeking further production was the fact that UMG had voluntarily removed the 17 small number of works (again, 1%) that were originally included on its list of more 18 than 2,400 infringing videos.3 On May 4, 2009, Veoh brought the present motion. 19 20 21 22 23 24 25 Veoh nowhere explains how these minor typographical errors ­ as to just two works ­ "caused Veoh to waste significant resources." 26 3 It bears emphasizing that not all of the 1% of the works included in UMG's 27 original list were put there in error. Since UMG's rights to works may change over time, works that were originally correctly included for which UMG no longer 28 controls rights were properly included in the first instance.
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VEOH OFFERS NO BASIS FOR ORDERING A MASSIVELY BURDENSOME PRODUCTION A. Production Of All "Chain-Of-Title" Documents Would Impose Undue Burden On UMG Veoh nowhere disputes that production of chain-of-title documents for all

6 works at issue would heavily burden UMG. Many works are at issue in this case 7 because Veoh's infringement was pervasive and widespread. That fact should not, 8 however, permit Veoh to wield its own unlawful conduct as a club to inflict massive 9 discovery burdens on UMG ­ the victim of Veoh's massive infringement. As 10 detailed in the Declaration of Michael Ostroff, previously submitted to this Court 11 and attached to the Batsell Declaration as Exhibit A, UMG controls copyrights to 12 more than 100,000 sound recordings and musical compositions. UMG has already 13 identified more than 2,400 videos,4 available through Veoh, that infringe UMG's 14 copyrights. See Batsell Decl., Ex. D. Many implicate more than one UMG 15 copyright (i.e., both a sound recording and a publishing copyright). Id. Producing 16 records associated with these thousands of copyrights would be a vast undertaking, 17 requiring the location and review of hundreds of thousands of documents, thousands 18 of hours of UMG employee time, and likely millions of dollars in costs. As 19 confirmed by UMG's recent production, this process requires locating and 20 reviewing records in disparate locations and across different UMG-business units. 21 Id., Ex. A (¶¶ 5-9 (sound recordings), ¶¶ 10-12 (musical compositions)). It requires, 22 for example, that UMG locate, review, and produce administration and exclusive 23 songwriter agreements, other licenses with artists and producers, and licenses for the 24 underlying composition. Id. (¶ 7). The files containing these materials are not 25 centrally located within UMG. They are located in the files of UMG's various 26 labels and divisions and others involved in any individual licensing situation. Id. 27 On May 11, 2009, and pursuant to the Court's April 6, 2009 Order, UMG 28 identified thousands of additional videos available through Veoh that infringed UMG's copyrights. Batsell Decl. at ¶ 11.
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More fundamentally, requiring production of these documents might well

2 necessitate further alteration of the case schedule. The parties have reached the end 3 of fact discovery, and trial in this matter begins this summer. UMG's production of 4 "chain-of-title" documents for the sample works identified by Veoh took more than 5 one month and generated almost 100,000 pages of documents. Producing chain-of6 title documents for all works in suit will take considerably more time and generate 7 considerably more paper, electronic or otherwise. Such a production simply is not 8 compatible with the current case schedule. 9 10 B. Veoh Offers No Basis For Further Production To justify burdensome discovery, Veoh must show that the importance of the

11 discovery sought outweighs the significant burden on UMG. The Court can and 12 should limit discovery where "the burden or expense of the proposed discovery 13 outweighs its likely benefit." Fed R. Civ. P. 26(b)(2)(C); see also Nicolas J. Murlas 14 Living Trust v. Mobil Oil Corp., 1995 WL 124186, *5 (N.D. Ill. Mar. 20, 1995) 15 (denying discovery because the burden of production outweighed the limited 16 relevance of the requested material); Wright v. AmSouth Bancorporation, 320 F.3d 17 1198 (11th Cir. 2003); Oxford House, Inc. v. City of Topeka, KS, 2007 WL 1246200 18 (D. Kan. Apr. 27, 2007). 19 The Court already weighed the purported benefit of such discovery against 20 the burden to UMG and ordered only a partial production. While even that partial 21 production was incredibly burdensome to UMG, producing such documents for the 22 remaining works at issue would be dramatically more burdensome. In seeking the 23 documents the Court ordered produced, Veoh claimed it would find extensive 24 evidence that UMG lacked standing to assert its claims of infringement. The Court 25 left open the possibility that if, after a sample production, Veoh could substantiate 26 such claims, then the Court would consider whether further production was 27 necessary. Having now had the documents for more than 30-days, Veoh has not 28 identified a single document produced by UMG that it can claim somehow supports
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1 its standing arguments. All that Veoh can say is that UMG voluntarily corrected 2 certain errors on its list of infringements. 3 Veoh's argument gets it backward: Veoh asks the Court to punish UMG for 4 diligently reviewing its list of infringing videos and correcting a small number of 5 errors identified therein while Veoh itself has failed to identify a single chain-of-title 6 defect in the sample works (including even those that UMG removed), despite 7 having had UMG's production for more than thirty-days. This makes absolutely no 8 sense and is manifestly unfair. 9 Veoh falsely suggests that "[h]ad Veoh not pressed for the review and the 10 production of chain of title/ownership documents, it is unlikely UMG would have 11 ever undertaken this additional diligence." Mot. at 5:28-6:2. UMG's conduct 12 wholly belies this argument. UMG removed works from its list of infringements not 13 included in Veoh's sample list of works ­ indeed, approximately forty-percent of the 14 works removed by UMG were not in Veoh's sample ­ and hence Veoh's "pressing 15 for production" is not the source of UMG's diligence. Veoh must come forward 16 with something more than UMG's good faith correction of errors to justify the 17 massively burdensome production it demands. 18 19 C. Veoh's Request Appears Calculated Solely To Inflict Burdens Veoh suggests that it intends to spend considerable resources reviewing these

20 documents, all in an effort to identify works, if any, for which UMG seeks damages, 21 but does not own rights. To date, the count of such works Veoh has identified is 22 zero. Veoh suggests that further production of chain-of-title documents will yield 23 far more works for which UMG does not own rights. Obviously, it could not yield 24 fewer, since Veoh has yet to identify a single defect in UMG's ownership of works 25 based on the documents already produced. 26 Given that Veoh presumably created its list of sample works with the intent of 27 uncovering the most rights-related issues possible, its inability to identify any such 28 issues after having an opportunity to do so confirms what UMG has said from the
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1 outset ­ Veoh's claims of widespread ownership problems are speculative and 2 unsubstantiated. Indeed, Veoh fails to offer any evidence that it has even made a 3 basic attempt to review the documents already produced by UMG. Given the 4 schedule of this case, which Veoh has repeatedly advocated against extending, Veoh 5 cannot meaningfully argue that it will undertake to review the massive amount of 6 material it seeks before any trial of this matter is already over.5 7 IV. 8 9 VEOH HAS ALREADY HAD MORE THAN 30-DAYS TO REVIEW UMG'S PRODUCTION As an alternative to immediately compelling UMG to make a massively

10 burdensome and unjustified additional production, Veoh "requests thirty days to 11 review and complete its analysis of the 20% sample works." Presumably, Veoh 12 hopes that after more time it could make another try at seeking to inflict a 13 burdensome production on UMG. Veoh's alternative "remedy," however is 14 unnecessary. Veoh has already had more than thirty days to review UMG's 15 production. UMG produced its "chain-of-title" documents on April 9th. Veoh's 16 request for additional time is therefore moot and Veoh has shown no justification for 17 taking up still more of this Court's time with unsupported requests for burdensome 18 19 20 21 22 23 24 25 26 27 28 Only Veoh is to blame for this scheduling conflict. Veoh first moved to compel production of chain-of-title documents in August 2008. The Court denied Veoh's motion, noting that it contained "hundreds of requests," that it "exceed[ed] 300-pages," and that Veoh's grouping of requests was "so broad that [it] really [wasn't] meaningful." Batsell Decl., Ex. E (8/25/2008 Hearing Transcript at 19:1617, 22:10-14). Veoh then brought a second motion to compel production of chainof-title documents on October 29, 2008, which again the Court rejected. The Court ruled that the relief requested by Veoh was "too broad and has not been shown to be tethered to the scope of any particular discovery requests it has served." Id., Ex. F (11/21/2008 Order). Not until Veoh brought its third motion to compel ­ on precisely the same issue ­ did the Court grant Veoh's request. Veoh's imprudent discovery conduct and motion practice is therefore responsible for this scheduling impasse.
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1 production.6 Because Veoh's demand for additional time is moot, the Court should 2 deny Veoh's alternate request for further time. 3 V. 4 6 7 Dated: May 12, 2009 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Further, as discussed previously, Veoh's arguments about the purported 26 "disorganized" nature of UMG's production are completely false. Veoh had more than a fair opportunity to review the materials Veoh claimed were critical when 27 seeking them before this Court. Having failed to identify a single "critical" 28 document after obtaining them, Veoh's complaints are nothing more than empty excuses.
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CONCLUSION For all of the foregoing reasons, UMG requests that the Court deny Veoh's

5 Motion to Compel. Respectfully submitted, IRELL & MANELLA LLP Steven A. Marenberg Elliot Brown Brian Ledahl Benjamin Glatstein

By:

/s Brian Ledahl

Attorneys for Plaintiffs

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