George Clinton v. Will Adams et al
Filing
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NOTICE OF LODGING filed re MOTION for Partial Summary Judgment 75 (Attachments: # 1 Proposed Order (Statement of Decision))(Grodsky, Allen)
ALLEN B. GRODSKY (SBN 111064)
GRODSKY & OLECKI LLP
2 2001 Wilshire Blvd., Ste. 210
Santa Monica, California 90403
3 310.315.3009 (phone)
310.315.1557 (fax)
4 allen@grodsky-olecki.com (e-mail)
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Attorneys for Defendants
WILLIAM ADAMS, et al.
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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GEORGE CLINTON, an individual,
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Plaintiff,
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v.
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WILL ADAMS, p/k/a will.i.am,
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individually and d/b/a WILL.I.AM MUSIC )
PUBLISHING, an individual; ALLAN
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PINEDA, p/k/a apl.de.ap, individually and )
d/b/a JEEPNEY MUSIC PUBLISHING, )
an individual; JAIME GÓMEZ, p/k/a
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Taboo, individually and d/b/a NAWASHA )
NETWORKS PUBLISHING, an
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individual; STACY FERGUSON, p/k/a
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Fergie, an individual; GEORGE PAJON, )
JR., an individual; JOHN CURTIS, an
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individual; UNIVERSAL MUSIC
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GROUP, INC., a Delaware corporation;
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UMG RECORDINGS, INC., a Delaware )
corporation; WILL I AM MUSIC, INC., a )
California corporation; CHERRY LANE )
MUSIC PUBLISHING COMPANY, INC., )
a New York corporation; EL CUBANO
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MUSIC, INC., a California corporation;
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EMI BLACKWOOD MUSIC INC., a
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Connecticut corporation; TAB
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MAGNETIC, INC., a California
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corporation; and DOES 1 through 10,
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Defendants.
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__________________________________ )
Case No. CV 10-9476 ODW (PLAx)
Honorable Otis D. Wright II, Ctrm 11
PROPOSED STATEMENT OF
DECISION SUBMITTED BY
DEFENDANT WILLIAM ADAMS
ET AL.
Date:
Time:
Place:
April 9, 2012
1:30 p.m.
Courtroom 11
Pre-Trial Conf.: May 7, 2012
Trial Date: June 5, 2012
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Having considered Defendants’ Motion for Partial Summary Judgment, the
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supporting papers and evidence, the opposition papers of Plaintiff, the record on file in
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this action, and the arguments of counsel, the Court finds and adjudicates as follows:
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1.
Clinton produced the master sound recording (Not Just) Knee Deep
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(“Knee Deep”), which was contained on Funkadelic’s 1979 album UNCLE SAM
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WANTS YOU. (UF 3.)
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2.
Warner Bros. Records, as Clinton’s employer for hire, registered the
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copyright for the sound recording for the album UNCLE SAM WANTS YOU on or
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about October 5, 1979. (UF 4.)
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3.
In 2003, The Black Eyed Peas (“BEP”) released an album entitled
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ELEPHUNK. Shut Up was one of the singles on ELEPHUNK. (UF 6.) At or about
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the same time, BEP released a vinyl album containing several different versions of
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Shut Up; one of those versions included a sample of Knee Deep. (UF 7.) That version
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is referred to herein as the “2003 Shut Up Remix.”
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4.
In order to obtain a license for use of Knee Deep, BEP contacted Capitol
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Records, which, through its subsidiary Priority Records, had been releasing albums
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featuring Clinton’s masters. (UF 8.) Priority had entered into a license agreement
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with Tercer Mundo, Inc., a company that represented that it had the rights to Clinton’s
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masters. That license agreement gave Priority the right to issue “sampling” licenses
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for Clinton masters, such as Knee Deep. (UF 9.)
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5.
Capitol and BEP negotiated a license for use of the Knee Deep sample in
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the 2003 Shut Up Remix. A check in the amount of $12,000 was then sent to Capital
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as payment of the advance on the license. (UF 10.)
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6.
In 2009, BEP, through Universal, released an album entitled “THE
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E.N.D.” (UF 11.) At the same time, BEP sought to release a special double-disc
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edition of the “THE E.N.D.” exclusively to be sold at Target stores. The second disc
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of this Target release contained a few new songs as well as remixes of classic BEP
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hits, including Shut Up. The planned Shut Up remix was again to use a sample of
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Knee Deep. (UF 12.) This version is referred to herein as the “2009 Shut Up Remix.”
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The 2003 Shut Up Remix and the 2009 Shut Up Remix are identical except one of the
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remixes is a few seconds longer. (UF 36.)
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7.
On June 17, 2005, a federal court entered an order declaring Clinton to be
the sole owner of his master sound recordings, including Knee Deep. (UF 13.)
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Deborah Mannis-Gardner of DMG Clearances, Inc., a sample clearance
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company, was retained to obtain a license from Clinton for the use of a sample of
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Knee Deep in the 2009 Shut Up Remix. (UF 14.) Mannis-Gardner has been used
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before by BEP and has an excellent reputation in the music industry. (UF 15.)
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9.
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(UF 16.)
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working with Clinton for over 20 years. (UF 17.)
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10.
Initially, Mannis-Gardner had difficulty getting in touch with Clinton.
Eventually, she was referred to Eban Kelly who she understood had been
Mannis-Gardner faxed to Kelly a proposed license for use of Knee Deep
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in the Shut Up Remix. Kelly faxed back an executed license agreement and an
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executed W9, providing for payment to Clinton to be made to Clinton’s company, C.
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Kunspyruhzy, LLC. (UF 18.) Both the license and the W9 appeared to have Clinton’s
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signature. Mannis-Gardner had no reason to believe that they did not contain the
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actual signature of Mr. Clinton. (UF 19.) Mannis-Gardner sent a $15,000 advance
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check to C. Kunspyruhzy, LLC. (UF 20.)
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11.
Neither defendant will.i.am music, inc. (“WMI”), nor defendant Tab
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Magnetic, Inc. (“TMI”) owns, or ever owned, the masters for the 2003 Shut Up Remix
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or the 2009 Shut Up Remix, licensed the right to exploit those masters, received any
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income from the exploitation of those masters. (UF 23-25.)
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12.
Clinton has never computed his damages as required by Rule
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26(A)(1)(a)(iii). Rather, Plaintiff’s section on damages in the Rule 26 disclosures
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stated: “The amount of damages is not known at this time.” (UF 26.) Clinton never
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supplemented his Rule 26 disclosures. (UF 27.)
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Nor has Clinton made “available for inspection and copying . . . the
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documents or other evidentiary material . . . on which each computation is based,” as
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required by Rule 26(a)(1)(A)(iii). (UF 28.) Clinton has never produced any
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documents as part of Rule 26 disclosures. (UF 29.) While his written Rule 26
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disclosures do describe certain categories of documents, none relate to damages. (UF
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30.)
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14.
Nor did Clinton produce any documents in response to requests for
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production, served October 2011, seeking documents evidencing his alleged damages.
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Defendants agreed to extend Clinton’s time to respond to January 4, 2012. (UF 34.)
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Clinton did not serve written responses until February 29, 2012 – the last day of
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discovery – and they consisted solely of boilerplate objections. No responsive
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documents were produced. (UF 35.)
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15.
Clinton cannot rely on expert testimony. He submitted no expert report
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on the day expert reports were to be served, nor did he submit a rebuttal expert report
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on the day rebuttal reports were due. (UF 31.)
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16.
Written responses to Clinton’s document requests from both Universal
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and BEP stated that documents relating to sales of digital singles of, or albums
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containing, the two remixes would be produced only if Clinton’s counsel stipulated to
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a protective order which was then entered by the Court. (UF 32.)
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17.
On November 14, 2011, counsel for BEP submitted a draft protective
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order to counsel for Clinton. Counsel for Clinton never responded with any comments
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to the protective order, never proposed his own order, and never filed a motion to
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compel further responses either as to Universal or BEP. (UF 33.) Discovery cut-off
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and the last date to file motions to compel have now passed.
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18.
It is Plaintiff’s burden to prove the existence of damages caused by the
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alleged infringement. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S.
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539, 567 (1985). Defendants may carry their initial burden on this motion by showing
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that Clinton lacks sufficient evidence to carry his ultimate burden of persuasion at
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trial. FRCP, Rule 56(c)(1)(B); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
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19.
Plaintiff cannot carry its burden at trial of proving actual damages. He
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has no damages expert. Moreover, he never disclosed a damage calculation or
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produced damage documents under Rule 26 (a)(1)(A)(iii) which requires that a party
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“without awaiting a discovery request,” provide to the other parties “a computation of
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each category of damages claimed by the disclosing party – who must also make
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available for inspection and copying as under Rule 34 the documents or other
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evidentiary material . . . on which each computation is based.”
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20.
More importantly, “if a party fails to provide information required by
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Rule 26(a), “the party is not allowed to use that information . . . to supply evidence on
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a motion . . . unless the failure was substantially justified or is harmless.” Federal
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Rules of Civil Procedure, Rule 37(c)(1). This exclusion sanction is “self-executing.”
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Dayton Valley Investors, LLC v. Union Pacific Railroad Co., 2010 Westlaw 3829219
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at *4 (D. Nev. 2010).
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21.
Here, Plaintiff has failed to provide any information and documents
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regarding damages, as required by Rule 26(a), and, because he cannot use information
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or documents he did not disclose, he has no information or documents to oppose this
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motion. Plaintiff can therefore present no evidence of damages caused by the alleged
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infringement and, Plaintiff cannot, as a matter of law, prove damages.
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22.
A prevailing plaintiff in a copyright infringement action may recover “an
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infringer’s profits to the extent they are attributable to the infringement.” Frank Music
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Corp., 772 F.2d at 514. It is Plaintiff’s burden to prove Defendants’ sales. Id.
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Again, Clinton failed to provide any computation of these profit damages
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under Rule 26(a)(1)(A)(iii). Indeed, his Rule 26 disclosures do not state that he is
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seeking to recover profits at all. (UF 26.)
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24.
Moreover, because Clinton failed to stipulate to a protective order and
failed to move to compel, he has no documents reflecting Defendants’ revenues. And
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he cannot estimate those profits because he has no expert witnesses. Therefore,
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Clinton will be unable to put on evidence of revenues generated from the alleged
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infringement, and cannot, as a matter of law, prove Defendants’ profits.
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25.
The Copyright Act permits a court to award statutory damages of $200
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per infringed work if “the infringer was not aware and had no reason to believe that
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his or her acts constituted an infringement of copyright.” 17 U.S.C. § 504(c)(2). To
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prove “innocent” infringement, the defendant has the burden of showing that he or she
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had a good faith belief that his or her infringing conduct did not amount to
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infringement, and that the good faith belief was reasonable. 4 Nimmer on Copyright,
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§ 14.04[B][2][a], at 14-74.
26.
Under the circumstances set forth above, BEP was clearly acting in
reasonable good faith and was, accordingly, an innocent infringer.
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Because WMI and TMI were never owners of the allegedly infringing
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master recordings and did not license them or receive income from them (UF 23-25),
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Clinton cannot prove WMI’s or TMI’s liability for infringement.
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Accordingly, IT IS HEREBY ADJUDICATED AND DECREED that:
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(1)
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Plaintiff cannot, as a matter of law, prove the existence of actual damages
and may not recover actual damages on his copyright infringement claim;
(2)
Plaintiff cannot, as a matter of law, prove profits attributable to the
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alleged infringement and may not recover profits on his copyright
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infringement claim;
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(3)
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The Moving Defendants are “innocent infringers” within the meaning of
18 U.S.C. § 504(c)(2).
(4)
Defendants will.i.am music, inc. and Tab Magnetic, Inc. are entitled to
judgment as a matter of law on all claims for relief in the Complaint.
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Dated: _________________, 2012
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U.S. DISTRICT COURT JUDGE
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