Rupa Marya v. Warner Chappell Music Inc

Filing 146

DECLARATION of MARK C. RIFKIN in support of MOTION for Review of [REDACTED] MOTION FOR REVIEW OF MAGISTRATE JUDGE WILNERS ORDER RE: DISCOVERY MOTION DENYING PLAINTIFFS MOTION TO OVERRULE DEFENDANTS CLAIM OF ATTORNEY-CLIENT PRIVILEGE [FED. R. CIV. P. 72(a); L.R. 72-2.1] 145 [REDACTED] filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Manifold, Betsy)

EXHIBIT J

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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GOOD MORNING TO YOU
PRODUCTIONS, CORP.,

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PLAINTIFF,
V.

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WARNER/CHAPPELL MUSIC, INC.,
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DEFENDANT.

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CV 13-4460-GHK(MRWX)
LOS ANGELES, CALIFORNIA
JULY 25, 2014
(9:34 A.M. TO 10:56 A.M.)

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HEARING
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BEFORE THE HONORABLE MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE

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APPEARANCES:

SEE NEXT PAGE

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COURT REPORTER:

RECORDED; COURT SMART

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COURTROOM DEPUTY:

VERONICA MC KAMIE

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TRANSCRIBER:

DOROTHY BABYKIN
COURTHOUSE SERVICES
1218 VALEBROOK PLACE
GLENDORA, CALIFORNIA
[phone]

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91740

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PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING;
TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.

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APPEARANCES:
FOR THE PLAINTIFF:

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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
BY: MARK C. RIFKIN
ATTORNEY AT LAW
270 MADISON AVENUE
NEW YORK, NEW YORK 10016
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
BY: BETSY C. MANIFOLD
ATTORNEY AT LAW
750 B STREET
SUITE 2770
SAN DIEGO, CALIFORNIA 92101

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FOR THE DEFENDANT:
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MUNGER TOLLES & OLSON LLP
BY: MELINDA E. LEMOINE
ADAM I. KAPLAN
ATTORNEYS AT LAW
355 SOUTH GRAND AVENUE
35TH FLOOR
LOS ANGELES, CALIFORNIA 90071

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I N D E X

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CV 13-4460-GHK(MRWX)

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PROCEEDINGS:

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HEARING RE DISCOVERY

JULY 25, 2014

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LOS ANGELES, CALIFORNIA; FRIDAY, JULY 25, 2014; 9:34 A.M.

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THE CLERK:

MICHAEL R. WILNER, UNITED STATES

MAGISTRATE JUDGE, PRESIDING.

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THE COURT:

GOOD MORNING, EVERYBODY.

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THE CLERK:

CV 13-4460-GHK(MRWX), GOOD MORNING TO

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YOU PRODUCTIONS CORPORATION VERSUS WARNER/CHAPPELL MUSIC,

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INCORPORATED.

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COUNSEL, PLEASE STATE YOUR APPEARANCES.

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MR. RIFKIN:

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MARK RIFKIN AND BETSY MANIFOLD FOR THE

PLAINTIFFS, YOUR HONOR.

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THE COURT:

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MS. LEMOINE:

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ALL RIGHT.

MR. RIFKIN.

AND MELINDA LEMOINE AND ADAM KAPLAN

FOR DEFENDANT WARNER/CHAPPELL, YOUR HONOR.

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THE COURT:

AND MR. KAPLAN.

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ALL RIGHT.

AS I AM OBVIOUSLY GOING TO SAY, GOOD

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MORNING TO YOU.

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(LAUGHTER.)

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MS. LEMOINE:

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MR. RIFKIN:

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THE COURT:

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GOOD MORNING.
GOOD MORNING.
THAT'S THE JOKE -- THAT'S THE JOKE THAT

NEVER STOPS BEING FUNNY.

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ALL RIGHT.

WE ARE ON FOR A DISCOVERY MOTION IN A

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COPYRIGHT ACTION INVOLVING THE RIGHTS TO "HAPPY BIRTHDAY TO

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YOU."

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I WILL NOTE THAT SEVERAL OF THE EXTERNS WHO ARE

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WORKING FOR ME THIS SUMMER ARE PRESENT IN THE COURTROOM AS IS

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A REPORTER FROM -- WAS IT LAW 360?

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THE REPORTER:

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THE COURT:

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AND AS A RESULT WHAT I WANTED TO LET THE PARTIES

THAT'S RIGHT.

YOU'RE WELCOME.

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KNOW IS THAT ALTHOUGH ASPECTS OF YOUR FILINGS WERE PROPERLY

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FILED UNDER SEAL BECAUSE THERE ARE ATTORNEY-CLIENT PRIVILEGE

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ISSUES HERE, I THINK THAT WE CAN HAVE OUR DISCUSSION HERE

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TODAY WITHOUT MAKING SUBSTANTIVE REFERENCE TO PRIVILEGED --

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OR PUTATIVELY PRIVILEGED DOCUMENTS.

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WHERE IT SEEMS A LITTLE MORE DODGEY, YOU KNOW, LET ME KNOW

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AND WE'LL TALK ABOUT IT.

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CAN'T HAVE OUR DISCUSSION HERE TODAY.

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ALL RIGHT.

IF WE GET INTO AN AREA

BUT I DON'T SEE ANY REASON THAT WE

SO, I REVIEWED A TREMENDOUS AMOUNT OF

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MATERIAL OVER THE LAST FEW DAYS.

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ALL.

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BUT THERE WAS THE JOINT STIPULATION THAT CAME IN A COUPLE OF

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WEEKS AGO WITH SUPPORTING DOCUMENTATION AND SUPPORTING

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DECLARATIONS.

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I'M NOT GOING TO RECITE IT

I THINK -- I THINK I HAVE A HANDLE ON WHAT WAS FILED.

THERE WAS A SUPPLEMENTAL BRIEF BOTH FROM WARNER AS
WELL AS FROM THE PLAINTIFFS WITH SOME ADDITIONAL MATERIALS.
I ALSO DID REVIEW, BUT JUST KIND OF LIGHTLY, THE

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UNDERLYING COUDERT LETTERS THAT WE'RE TALKING ABOUT HERE.

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DON'T FEEL THAT THE SUBSTANCE OF THOSE LETTERS ARE REALLY

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NECESSARY FOR OUR DISCUSSION PURPOSES HERE, ALTHOUGH THE

I

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TRANSMITTAL LETTER FROM SUMMY -- AND WE'LL GET TO THAT -- TO

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ASCAP'S GENERAL COUNSEL MAY BE OF RELEVANCE.

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POTENTIAL PRIVILEGE ISSUE THERE, BUT WE CAN SORT OF DANCE

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AROUND.

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MR. RIFKIN:

THERE MAY BE A

AND, YOUR HONOR, THAT IS THE ONE AREA

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WHERE I THINK YOUR CAVEAT MAY REQUIRE SOME CLARIFICATION.

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BECAUSE I DO THINK IT'S --

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THE COURT:

THAT'S FINE.

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MR. RIFKIN: -- IT IS IMPORTANT TO DISCUSS THE

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SPECIFICS OF THAT LETTER.

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SO, EXCEPT FOR THE COVER LETTER,

AS YOU NOTED, I AGREE --

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THE COURT:

OKAY.

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MR. RIFKIN: -- WITH YOUR HONOR THAT WE DON'T NEED

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TO TALK ABOUT THE SUBSTANCE OF THE COUDERT LETTERS, BUT I

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THINK MRS. SENGSTACK'S LETTER --

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THE COURT:

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MR. RIFKIN:

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THE COURT:

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YES.
-- IS DIFFERENT.
I THINK IT IS, AND WE CAN DEFINITELY --

WE CAN DEFINITELY GET THAT.
I MEAN, YOU KNOW, SORT OF THE HEADLINE I WANTED TO

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START WITH IS I THOUGHT YOU FOLKS DID A NICE JOB.

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UNDERSTAND SORT OF THE ISSUES GOING ON IN THE LITIGATION,

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SOME OF THE TIME PRESSURES, EITHER COURT IMPOSED,

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SELF-IMPOSED, WHATEVER, BUT YOU DID A LOT OF NICE WORK IN A

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SHORT AMOUNT OF TIME.

AND THAT'S ON BOTH SIDES.

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AND I SAY

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THAT NOT ALWAYS SEEING THAT IN FEDERAL COURT.

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THIS IS A DISCOVERY MOTION.

RULE 37 REQUIRES THE

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COURT TO AWARD FEES TO THE WINNING PARTY IN DISCOVERY,

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UNLESS I MAKE AN AFFIRMATIVE FINDING THAT BOTH SIDES -- OR

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THAT THE LOSING SIDE WAS SUBSTANTIALLY JUSTIFIED IN THE

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POSITION THAT THEY TOOK.

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SIDES WERE SUBSTANTIALLY JUSTIFIED, AND I DON'T SEE THAT I'M

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GOING TO BE AWARDING FEES HERE.

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AND I CAN FRANKLY SAY THAT BOTH

WHAT I'D LIKE TO DO IS GIVE YOU MY TENTATIVE

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THOUGHTS.

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READ THEM.

OKAY.

I'VE GOT YOUR -- I'VE GOT YOUR PAPERS.

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I SPENT A LOT OF TIME WITH THEM.

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YOU CAN HAVE A SEAT.

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MR. RIFKIN:

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MS. LEMOINE:

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THE COURT:

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YOU YOU CAN GO TO THE LECTERN.

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THANK YOU.
THANK YOU, YOUR HONOR.
AND WHEN THE TIME COMES TO HEAR FROM

AND I HAVE SOME PRETTY STRONG THOUGHTS HERE AS A

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RESULT OF WHAT YOU PUT IN FRONT OF ME, THE FACTS THAT YOU'VE

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BEEN ABLE TO DEVELOP, THE LAW THAT YOU HAVE REFERRED ME TO.

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AND, SO, LET ME GIVE YOU, YOU KNOW, A PRETTY

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THOUGHT-OUT TENTATIVE.

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MAKE SENSE FOR MAYBE US TO TAKE A BREAK SO YOU CAN ORGANIZE

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YOUR THOUGHTS AND I CAN GET A DRINK OF WATER.

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I'M HAPPY TO HEAR FROM YOU.

BUT I WANT TO DEAL WITH THIS.

IT MAY

I THINK THAT I WILL

BE ABLE TO GET A WRITTEN DECISION TO YOU TODAY OR TOMORROW.

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IF THERE IS GOING TO BE A DESIRE TO APPEAL MY

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DECISION, WE CAN TALK ABOUT THE MECHANICS OF IT.

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THINK THAT I AM CLEARLY WRONG ON THE FACTS OR THE LAW, OR

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WHATEVER THE GOVERNING STANDARD IS, YOU ARE ABSOLUTELY

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ENTITLED TO AND INVITED TO APPEAL THIS MATTER TO CHIEF JUDGE

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KING WHO IS YOUR DISTRICT JUDGE IN THIS MATTER.

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IF YOU

YOU WILL BE ABLE TO VERY PROMPTLY GET THIS

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TRANSCRIPT.

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DECISION.

I HOPE I'LL BE ABLE TO GET YOU A WRITTEN
HOWEVER, THE REASON I WANTED TO EXPEDITE THIS

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HEARING, EVEN THOUGH YOU FOLKS HAD ALREADY WANTED TO EXPEDITE

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IT, BUT EVEN FURTHER BECAUSE I'M OUT OF TOWN BEGINNING THIS

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WEEKEND AND THEN THROUGH NEXT WEEK.

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I DON'T WANT MY PERSONAL SCHEDULE TO HANDICAP THE

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PARTIES IN IMPORTANT LITIGATION.

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ABILITY TO TAKE ME UP -- IF YOU WANT TO.

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WITH THIS, YOU CAN LIVE WITH THIS.

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APPEAL ME.

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RECOGNIZE THAT YOU HAVE THE RIGHT TO DO THAT, AND I WANT TO

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TALK ABOUT THE MECHANICS, IF NECESSARY.

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WE GO.

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BUT I THINK YOU'LL HAVE THE
IF YOU CAN LIVE

I'M NOT DEMANDING YOU

I DON'T THINK I EVER DO THAT.

BUT, YOU KNOW, I

BUT LET'S SEE WHERE

BUT LET ME GIVE YOU A RECITATION OF WHAT I

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UNDERSTAND TO BE THE RELEVANT FACTS HERE.

YOU FOLKS SPENT A

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FAIR AMOUNT OF TIME ON SOME ISSUES THAT I DON'T THINK ARE

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REALLY, REALLY GERMANE TO THE DISPUTE.

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IN LITIGATION LIKE TO KNOCK ABOUT HE SAID, SHE SAID, THIS

I KNOW THAT LAWYERS

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HAPPENED, THAT HAPPENED.

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FROM THE JUDGE'S PERSPECTIVE IT'S JUST BUZZ, BUZZ, BUZZ.

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THAT'S FANTASTIC.

A LOT OF TIMES

BUT I THINK -- I THINK I WAS ABLE TO PULL OUT THE

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KEY COMPONENTS OF WHAT'S GOING ON HERE.

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SAID, A COPYRIGHT CASE INVOLVING THE OWNERSHIP OF A COPYRIGHT

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OR COPYRIGHTS TO THE "HAPPY BIRTHDAY TO YOU" SONG.

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AND THIS IS, AS I

AT SOME POINT IN TIME THOSE RIGHTS WERE OWNED BY A

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COMPANY CALLED SUMMY-BIRCHARD, S-U-M-M-Y, DASH,

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B-I-R-C-H-A-R-D.

AND THE SUMMY COMPANY, AS I'LL CALL IT, AT

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SOME POINT IN 1976 AND 1978 RECEIVED COMMUNICATIONS FROM A

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LAWYER AT COUDERT BROTHERS, C-O-U-D-E-R-T, A NEW YORK CITY

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LAW FIRM.

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MR. RIFKIN'S DECLARATION.

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AND THOSE ARE THE LETTERS AT EXHIBITS B AND C TO

AND I THINK IT'S PRETTY CLEAR THAT THE PARTIES

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AGREED -- I BELIEVE MS. MANIFOLD ACKNOWLEDGED IN OUR PREVIOUS

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DISCUSSION -- DON'T WORRY, I'M NOT GOING TO SANDBAG YOU WITH

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THIS -- BUT THAT WHEN THE COUDERT LAW FIRM PROVIDED

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INFORMATION TO SUMMY IN CONNECTION WITH THE COPYRIGHT OR

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COPYRIGHTS AT ISSUE HERE, I DON'T THINK THERE'S ANY DISPUTE

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THAT THAT COMMUNICATION WAS PROTECTED BY THE ATTORNEY-CLIENT

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PRIVILEGE.

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CLIENT IN A PRIVILEGED OR CONFIDENTIAL CONTEXT.

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TO LEGAL ADVICE.

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ACKNOWLEDGMENT THAT THE 1976 AND 1978 LETTERS FROM THE LAW

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FIRM TO SUMMY ARE PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE.

IT WAS A COMMUNICATION BETWEEN A LAWYER AND A
IT RELATED

AND I THINK AT THE OUTSET WE HAD AN

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MR. RIFKIN IS SORT OF SHAKING HIS HEAD SIDE TO
SIDE.

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WE'LL COME BACK TO THAT.
THERE IS ALSO NO DISPUTE THAT SUMMY SENT THOSE

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COUDERT LETTERS TO AN INDIVIDUAL WHO I UNDERSTAND TO BE THE

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GENERAL COUNSEL AT THE TIME OF ASCAP, THE AMERICAN SOCIETY OF

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-- AND I NEVER GET IT RIGHT -- COMPOSERS AND SOME OTHER

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PEOPLE.

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1979 FROM SUMMY TO ASCAP TRANSMITTING THE COUDERT LETTERS.

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BUT THE ACRONYM IS ASCAP.

THAT WAS A LETTER SENT IN

AND THERE IS A VERY BRIEF COVER LETTER FROM AN

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EXECUTIVE AT SUMMY BASICALLY EXPLAINING -- AND I DON'T WANT

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TO CAUSE A PRIVILEGE ISSUE HERE, BUT JUST SAYING, HERE'S

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MATERIAL HAVING TO DO WITH THE CLAIM OF RIGHTS REGARDING THE

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SONG.

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WE PREVIOUSLY DISCUSSED.

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OKAY.

AND IT DOESN'T SAY TOO MUCH MORE BEYOND THAT AS
AND THAT'S ABOUT IT.

WE GET FAST FORWARDED TO 2014 AND WE GET TO THE

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ISSUE OF HOW THIS CAME UP.

I KNOW THERE'S A LOT OF

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PROCEDURAL ISSUES HERE.

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FORTH ON SOME OF THESE ISSUES.

I KNOW THE PARTIES WENT BACK AND

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THE PLAINTIFFS SERVED A SUBPOENA ON ASCAP.

ASCAP

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PRODUCED THE COUDERT LETTERS AND, I PRESUME, THE SUMMY LETTER

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TO THE PLAINTIFFS IN RESPONSE TO A SUBPOENA.

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ASSUMPTION THAT WAS WITHOUT CONSULTING WARNER, WHO IS THE

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SUCCESSOR TO SUMMY.

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TO SAY SOMETHING A LITTLE FLIPPANT, BUT I'M NOW NOT GOING TO

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BECAUSE WE'RE ON THE RECORD HERE -- ASSERTED ITS PRIVILEGE

IT'S MY

WARNER FOUND OUT ABOUT IT -- I WAS GOING

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AND REQUESTED ESSENTIALLY A CLAW-BACK.

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AND WHETHER IT WAS UNDER RULE 26(B)(5) OR FEDERAL

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RULE OF EVIDENCE 502, WARNER CONTENDED THAT THE MATERIALS

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SHOULD NOT HAVE BEEN PRODUCED BECAUSE OF THE CLAIM OF

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PRIVILEGE.

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FIND THAT THE REQUESTS FROM WARNER SUBSTANTIALLY COMPLIED

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WITH THE RULES.

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ACTIONS TO SEQUESTER THE MATERIALS AND BRING THIS ISSUE

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BEFORE THE COURT SUBSTANTIALLY COMPLIED WITH 26(B)(5) AS

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AND PLAINTIFFS -- AND I WOULD -- I'M PREPARED TO

I'M ALSO PREPARED TO FIND THAT PLAINTIFF'S

WELL.

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I KNOW YOU HAVE ISSUES ABOUT TIMING AND HOW LONG IT

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TOOK ONE SIDE TO DO SOMETHING AND ONE SIDE TO DO THE OTHER.

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FRANKLY, GIVEN WHAT'S BEEN GOING ON, I FIND THAT BOTH PARTIES

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ACTED REASONABLY AND SUBSTANTIALLY COMPLIED WITH THE RULE.

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I ALSO AM PREPARED AS WE HAD DISCUSSED PREVIOUSLY

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-- I'M PREPARED TO CONCLUDE THAT THE ISSUE IS NOT REALLY

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WHETHER ASCAP'S PRODUCTION -- AND I BELIEVE IT WAS

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INADVERTENT OR MAYBE NOT FULLY INFORMED -- DOESN'T SERVE TO

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HAVE WAIVED WHATEVER PRIVILEGE IS IN EXISTENCE HERE.

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IS, I DON'T THINK I HAVE A BASIS TO SAY THAT THE 2014

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PRODUCTION BY ASCAP IS SUFFICIENT TO HAVE CAUSED A WAIVER OF

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WHATEVER PRIVILEGE IS HERE.

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THAT

I THINK THE ISSUE IS WHETHER THE PRIVILEGE HAD BEEN

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WAIVED BACK IN 1979 WHEN THE MATERIALS GOT INTO ASCAP'S

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FILES.

I FIND THAT IF SOMEONE RUMMAGES THROUGH THE FILES IN

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2014 AND TURNS SOMETHING OVER, YOU KNOW, THERE'S PROBLEMS,

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THERE'S ISSUES.

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SIGNIFICANT.

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BUT, YOU KNOW, PRIVILEGE ISSUES ARE

AND, SO, WE HAD SPENT TIME ON PREVIOUS PHONE CALLS

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TALKING ABOUT WHAT I NEED TO KNOW IN ORDER TO MAKE A

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DETERMINATION ABOUT WHAT I TAKE TO BE THE ISSUE, THIS 1979

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TRANSFER FROM SUMMY TO ASCAP.

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AND I THINK THAT THERE ARE TWO ISSUES OF REAL

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INTEREST TO ME THAT I THINK ARE DISPOSITIVE OF THE ISSUE OF

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WHETHER THERE WAS A PRIVILEGE OR WHETHER THAT PRIVILEGE WAS

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WAIVED.

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RELATIONSHIP BETWEEN SUMMY, SLASH, WARNER ON THE ONE SIDE AND

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ASCAP ON THE OTHER AND THE PURPOSE FOR SUMMY TRANSMITTING THE

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COUDERT MATERIALS TO ASCAP.

AND THAT HAS TO DO WITH THE NATURE OF THE

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AND I WILL SAY THAT I THINK I HAVE A PRETTY GOOD

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HANDLE ON THE RELATIONSHIP BETWEEN WARNER OR SUMMY AS THE

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PUTATIVE RIGHTHOLDER AND ASCAP.

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RELATIONSHIP IS.

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KNOWLEDGE.

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I THINK I KNOW WHAT THAT

IT'S PRETTY CLEAR.

IT'S ALMOST COMMON

I DON'T THINK THAT THERE IS QUITE AS MUCH DIRECT

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EVIDENCE ABOUT THE PURPOSE OF TRANSMITTING THE COUDERT

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MATERIALS TO ASCAP.

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MIST OF TIME.

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AGO.

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SENGSTRACK --

AND, YOU KNOW, PART OF THAT IS JUST THE

IT'S SOMETHING THAT OCCURRED 30-SOME-ODD YEARS

AND I DON'T HAVE ANY DIRECT MATERIAL FROM EITHER MS.

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MR. RIFKIN:

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THE COURT: -- SENGSTACK, S-E-N-G-S-T-A-C-K, AND THE

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PERSON AT ASCAP.

SENGSTACK -- S-E-N-G- --

THAT'S JUST 30-SOME-ODD YEARS AGO.

BUT I HAVE THE LETTER ITSELF, AND I THINK -- I
THINK WE CAN INTUITIVELY FIGURE OUT WHAT'S GOING ON HERE.
AND LET ME BE CLEAR.

IT IS WARNER'S BURDEN TO

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ESTABLISH THAT THE ATTORNEY-CLIENT PRIVILEGE EXISTS AND

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APPLIES, AND THAT IT HASN'T BEEN WAIVED.

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OF THE PARTY ASSERTING THE PRIVILEGE.

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THAT IS THE BURDEN

AND I AM OBLIGED TO CONSIDER A PRIVILEGE CLAIM

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CLOSELY AND NARROWLY BECAUSE THE ATTORNEY-CLIENT PRIVILEGE,

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AS WITH ANY OTHER PRIVILEGE, PREVENTS THE FULL AND FAIR

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DISCLOSURE OF INFORMATION.

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AND THE FEDERAL SYSTEM FAVORS DISCOVERY, FAVORS PRETRIAL OF

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CASES AND DISCLOSURE OF INFORMATION.

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PRIVILEGE OBSTRUCTS THAT AND MAY OBSTRUCT IT PROPERLY, BUT ON

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THAT BASIS IT HAS TO BE DONE NARROWLY AND WITH

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SUBSTANTIATION.

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IT'S A WAY TO RESIST DISCOVERY.

AND, SO, A CLAIM OF

SO, MY TWO BIG ISSUES ARE THE NATURE OF THE

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RELATIONSHIP BETWEEN THE RIGHTHOLDER AND ASCAP AND THEN THE

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PURPOSE OF TRANSMITTING THIS MATERIAL TO ASCAP.

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SO, MY FIRST AREA OF INQUIRY IS WHAT IS ASCAP.

AND

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I FOUND CONSIDERABLE INFORMATION IN THE MATERIALS, PRIMARILY

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MR. REIMER'S DECLARATION WHICH WAS -- MR. REIMER IS A LAWYER

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AT ASCAP, AND HE SUBMITTED A DECLARATION.

AS I UNDERSTAND

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IT, IT WAS IN CONNECTION WITH THE PROCEEDINGS IN NEW YORK TO

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QUASH SOME DEPOSITIONS.

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AGAIN, YOU ALL WENT CRAZY ON SOME OF THIS STUFF.

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THAT'S FINE.

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AT A VERY HIGH LEVEL.

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I'M NOT CRITICAL.

DOING YOUR STUFF.

MR. REIMER GAVE A DECLARATION.

DOING IT

HE'S AN IN-HOUSE

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LAWYER AT ASCAP, AND HE GAVE A BRIEF DESCRIPTION OF WHAT

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ASCAP IS.

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THERE WAS ALSO INFORMATION IN THE DEPOSITION OF MR.

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BLEITZ, B-L-E-I-T-Z, WHO I UNDERSTAND TO BE EXECUTIVE AT

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WARNER WHO HAS INTERACTION WITH ASCAP.

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AND, THEN, THERE WERE SOME OTHER MATERIALS PROVIDED

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BY THE DEFENSE.

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ASCAP THAT SETS OUT WHAT ASCAP DOES.

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THERE'S AN AGREEMENT BETWEEN WARNER AND

AND MY UNDERSTANDING IS THAT ASCAP IS A MEMBERSHIP

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ASSOCIATION OF SONG WRITERS AND OTHERS WHO OWN MUSICAL

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COPYRIGHTS.

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LICENSE THE PUBLIC PERFORMANCE COMPONENT OF THE COPYRIGHT FOR

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SONGS, FOR THINGS SUCH AS RADIO BROADCASTS AND LIVE

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PERFORMANCES.

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AND AT THE REQUEST OF THOSE MEMBERS, ASCAP CAN

WHAT ASCAP DOES IS IT COLLECTS FEES FROM

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PERFORMANCES OR PERFORMERS WHERE THERE'S A LICENSE TO PERFORM

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COPYRIGHTED MATERIAL AND DISTRIBUTES THOSE FEES TO THE RIGHTS

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HOLDERS.

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ASCAP MAKES CLEAR IN MR. REIMER'S DECLARATION THAT

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IT DOES NOT OWN COPYRIGHTS ON BEHALF OF ITS MEMBERS.

AND IT

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DOES NOT KEEP THE FEES THAT ARE DERIVED FROM THE PUBLIC

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PERFORMANCES -- ALTHOUGH IT IS COMPENSATED.

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WAS AN AMBIGUITY IN MR. REIMER'S DECLARATION, AND I TAKE IT

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TO BE AN AMBIGUITY BECAUSE HE SAYS WE DON'T GET PAID FROM THE

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FEE.

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AND I THINK -- I THINK THERE'S AN AMBIGUITY HERE.

AND I

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UNDERSTAND WHY BOTH PARTIES READ IT VERY CLOSELY.

BUT MY

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UNDERSTANDING FROM OTHER ASPECTS OF THE DECLARATION IS THAT

AND I KNOW THERE

BUT THEN HE SAYS WE GET PAID ESSENTIALLY FROM THE FEE.

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ASCAP GETS PAID ITS EXPENSES OR SOME PREDETERMINED FEE OR

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PERCENTAGE FROM THE LICENSES -- FROM THE FEES IT DERIVES FROM

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LICENSES.

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STRUCTURE WHERE THEY TAKE IN MONEY FROM BROAD LICENSES AND

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PAY IT OUT TO HUNDREDS OF THOUSANDS OF PERFORMERS.

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FRIENDS WHO ARE PERFORMERS.

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PERSONAL STUFF, BUT THERE'S ALL KINDS OF STUFF ABOUT

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RESIDUALS, ROYALTIES, LICENSES.

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AND I KNOW THAT THERE'S AN UNBELIEVABLY COMPLEX

I HAVE

I'M NOT GOING TO INJECT MY

BUT THAT'S WHAT ASCAP DOES.

ASCAP ISSUES LICENSES TO BARS AND RADIO STATIONS

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AND COLLECTS MONEY AS A PERFORMING RIGHTS ORGANIZATION ON

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BEHALF OF ITS MEMBERS.

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OF THE OTHER THINGS THAT IT DOES IS IT POLICES RIGHTS FOR ITS

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MEMBERS.

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WHERE'S THERE'S BEEN A LICENSE NEGOTIATED WITH A BAR OR A

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RADIO STATION.

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COPYRIGHTED WORK THAT DOES NOT -- WHERE THE PERFORMER DOES

IT'S OWNED BY ITS MEMBERS.

AND ONE

THE STRUCTURE OF COLLECTING FEES HAS TO DO WITH

BUT IF THERE IS A PUBLIC PERFORMANCE OF A

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NOT HAVE PERMISSION AND THERE'S A CLAIM OF INFRINGEMENT,

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ASCAP IS ENTITLED AND HAS BEEN HIRED TO PURSUE THOSE

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INFRINGERS ON BEHALF OF THE RIGHTS OWNER.

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AND THAT'S WHAT MR. BLIETZ TESTIFIED ABOUT.

HE

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SAID THAT ASCAP AS HE UNDERSTOOD IT -- AND HE WAS VAGUE ABOUT

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IT -- NOT ALL THE WAY TO BRIGHT ON IT.

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THAT ASCAP CAN SUE PEOPLE ON BEHALF OF WARNER FOR

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INFRINGEMENT OF WARNER'S RIGHTS.

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BUT HE UNDERSTOOD

AND THAT'S CERTAINLY CLEAR FROM THE WRITTEN

10

AGREEMENT THAT I REVIEWED, WHICH WAS EXHIBIT D TO MR. KLAUS'S

11

DECLARATION, THAT ASCAP HAS THE RIGHT TO SUE IN A COPYRIGHT

12

ACTION ON BEHALF OF ITS RIGHTS OWNER.

13

THAT MAKES SENSE TO ME BECAUSE THAT'S WHAT COPYRIGHT IS.

14

AND THAT'S -- THAT --

COPYRIGHT IS A PROTECTION OF INTELLECTUAL PROPERTY.

15

AND INTELLECTUAL PROPERTY GETS USED THROUGH LICENSES.

16

GETS EXPLOITED BY PEOPLE WHO OWN THOSE RIGHTS.

17

RIGHTS REGULARLY GET WIELDED AGAINST PEOPLE WHO USE PROTECTED

18

MATERIAL WITHOUT PERMISSION BECAUSE THEY DON'T OWN THE

19

RIGHT.

20

THAT'S WHY IT WAS IN OUR CONSTITUTION IN 1787.

I'M TALKING

21

TO COPYRIGHT LAWYERS LIKE THEY DON'T KNOW THAT.

OF COURSE

22

THEY KNOW THAT.

23

AND IT

AND THOSE

COPYRIGHT IS A PRECONDITION TO LITIGATION.

AND

AND WHERE THAT LEADS IS THAT IN ORDER TO ASSERT A

24

COPYRIGHT CLAIM ONE MUST DEMONSTRATE OWNERSHIP.

25

ELEMENT OF A CLAIM OF INFRINGEMENT.

THAT'S AN

I AM THE PARTY

17
1

PLAINTIFF.

2

DO NOT.

3

MY RIGHT.

4

I OWN THIS RIGHT.

YOU, THE INFRINGING DEFENDANT,

YOU DON'T OWN IT OR YOU DON'T HAVE PERMISSION TO USE

AND, SO, NOW, WE GET TO THE ISSUE OF THE

5

COMMUNICATION BETWEEN SUMMY AND ASCAP.

6

ADMINISTER SUMMY'S RIGHTS.

7

WARNER WAS DOWN THE ROAD.

8

ASCAP WAS ENTITLED TO AND REQUESTED TO POLICE THE RIGHTS FOR

9

SUMMY'S COPYRIGHTED MATERIAL.

10

ASCAP WAS HIRED TO

I PRESUME -- ALTHOUGH, CERTAINLY,
AND ASSUMING THAT RELATIONSHIP,

AND, SO, WE GET TO THE ISSUE AS TO -- ABOUT SUMMY

11

SENDING THE COUDERT MATERIALS TO ASCAP.

12

LETTER AND THE SUPPORTING MATERIALS NOT ENTIRELY CLEAR -- NOT

13

ENTIRELY CLEAR.

14

APPARENT TO ME THAT IF ASCAP WERE TO NEGOTIATE LICENSES OR

15

SUE ALLEGED INFRINGERS ON BEHALF OF SUMMY BASED ON SUMMY'S

16

COPYRIGHT IN THE "HAPPY BIRTHDAY" SONG, IF ASCAP WERE TO DO

17

THOSE THINGS AS PART OF ITS AGREEMENT, THEN, ASCAP WAS

18

ENTITLED TO KNOW, AND WOULD BE REQUIRED TO PROVE IN A COURT,

19

THAT ITS RIGHTS AND THE RIGHTS IT DERIVED FROM SUMMY WERE

20

LEGITIMATE.

21

AND THE TRANSMITTAL

BUT I THINK CIRCUMSTANTIALLY IT'S PRETTY

AND IT MAKES SENSE TO ME THAT IF SUMMY HAD

22

INFORMATION, AND IF IT WAS PRIVILEGED INFORMATION, REGARDING

23

ITS OWN OWNERSHIP IN THE "HAPPY BIRTHDAY" SONGS, THAT

24

PROVIDING THAT INFORMATION TO ITS LICENSING AGENT IN ADVANCE

25

OF SOME DISPUTE, THAT MAKES SENSE TO ME.

18
1

NOW, I WILL NOTE THAT SUMMY DID NOT HAVE TO PROVIDE

2

PRIVILEGED INFORMATION IN ORDER TO DO THAT.

3

CHOSEN TO DO SOMETHING THAT REGULARLY OCCURS IN THE

4

SECURITIES CONTEXT.

5

COPYRIGHT CONTEXT, BUT I KNOW IT OCCURS IN THE SECURITIES

6

CONTEXT, WHICH IS SOMETHING ALONG THE LINES OF A 10(B)(5)

7

LETTER OR A COMFORT LETTER.

8
9

SUMMY COULD HAVE

I DON'T KNOW IF IT OCCURS IN THE

SUMMY COULD HAVE SAID, OR SUMMY COULD HAVE HAD ITS
COUDERT BROTHERS LAWYERS, JUST SAY WE OWN THIS COPYRIGHT.

10

WE'LL BACK YOU UP.

11

DATE, OR YOU'RE ENTITLED TO RELY ON OUR CLAIM TO AVOID

12

MALICIOUS PROSECUTION CLAIMS OR CLAIMS OF -- THAT WE'RE

13

ACTING ULTRA VIRES.

14

WE'LL PROVIDE INFORMATION AT A LATER

IT HAPPENS EVERY DAY OF THE WEEK IN THE SECURITIES

15

CONTEXT.

16

ISSUE A LETTER TO AN UNDERWRITER SAYING THESE BONDS ARE

17

PROPER.

18

PRIVILEGED INFORMATION, BUT WE'RE GIVING YOU AN OPINION THAT

19

YOU CAN RELY ON.

20

A BOND ISSUER OR THE BOND ISSUER'S LAWYER WILL

THEY WERE LAWFULLY ISSUED.

WE'RE NOT GIVING YOU

BUT THAT DIDN'T HAPPEN HERE.

AND SUMMY CHOSE TO

21

GIVE PRIVILEGED INFORMATION RECEIVED FROM THE COUDERT FOLKS

22

ABOUT -- ABOUT THE NATURE OF ITS OWNERSHIP AND ITS CLAIMS AND

23

THE STATUS OF THINGS.

24
25

AND, SO, ONE OF THE ARGUMENTS THAT WARNER ASSERTS
HERE IS THAT ASCAP IS ACTUALLY WITHIN THE PRIVILEGE

19
1

RELATIONSHIP -- THAT THE RELATIONSHIP THAT SUMMY HAD WITH ITS

2

LAWYER AT COUDERT WAS IN A SENSE EXTENDED TO THE LAWYER AT

3

ASCAP.

4

WE THEN ALSO GET INTO ISSUES OF THE COMMON INTEREST

5

EXCEPTION TO THE WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE.

6

AND I WILL TELL YOU THAT I'VE SORT OF STRUGGLED IN WHAT MY

7

APPROPRIATE FRAMEWORK IS HERE BECAUSE I KIND OF SEE TWO

8

CLAIMS FROM WARNER.

9

I SEE WARNER SAYING THAT THE DISCLOSURE TO -- TO

10

ASCAP IN 1979 WAS NOT A WAIVER OF THE PRIVILEGE AT ALL.

11

THERE IS A RELIANCE ON THE SCHWARTZ CASE AND THE UNITED

12

STATES VERSUS ASCAP CASE, BOTH DISTRICT COURT OPINIONS FROM

13

THE FEDERAL COURT IN NEW YORK, WHICH HAS REAL FAMILIARITY

14

WITH ASCAP.

15

OF ASCAP LITIGATION BY VIRTUE OF CONSENT DECREES, I THINK --

16
17

20

AND THERE WAS A REFERENCE TO THE FACT THAT A LOT

YES, I READ YOUR PAPERS, FOLKS.

I READ -- I READ

-- I READ YOUR PAPERS, FOLKS.

18
19

AND

-- THAT THE NEW YORK COURTS HAVE REAL FAMILIARITY
WITH ASCAP.
AND THERE IS -- THERE ARE SOME PRETTY CLEAR

21

STATEMENTS IN THOSE DECISIONS THAT AN UNINCORPORATED

22

ASSOCIATION LIKE ASCAP AND THE ASSOCIATION'S LAWYER DOES HAVE

23

AN ATTORNEY-CLIENT RELATIONSHIP WITH ITS MEMBERS.

24

LAW HAS EVOLVED AND CHANGED OVER THE YEARS.

25

IS A SHOWING THAT A MEMBER OF THE ASSOCIATION IS SEEKING

NOW, THAT

BUT WHERE THERE

20
1

LEGAL ADVICE FROM THE LAWYER FOR THE ASSOCIATION, THAT THE

2

PRIVILEGE EXTENDS TO THAT RELATIONSHIP.

3

THE ARGUMENTS THAT I HEARD FROM -- FROM WARNER.

4

THAT'S KIND ONE OF

AND THEN IN THE ALTERNATIVE -- AND I DON'T THINK

5

THAT THEY'RE EXCLUSIVE -- THE ARGUMENT IS THAT, WELL, IF THE

6

TRANSMITTAL OF THIS INFORMATION TO ASCAP OR ASCAP'S GENERAL

7

COUNSEL WAS BASICALLY BRINGING IN A THIRD PARTY TO THE

8

RELATIONSHIP, SOMEONE OUTSIDE OF THE DIRECT ATTORNEY-CLIENT

9

RELATIONSHIP, THAT COULD BE A WAIVER.

10

EXCEPTION TO THE WAIVER.

11

BUT THERE IS AN

CLAIM.

12

AND THAT'S THE COMMON INTEREST

AND THE LAW IS CLEAR.

AND I READ WITH GREAT

13

INTEREST THE NIDEC CASE, N-I-D-E-C, AS WELL AS THE POTATO

14

CASE.

15

-- I THINK IT WAS THE LOVE CASE FROM JUDGE RYU UP IN THE

16

NORTHERN DISTRICT, WHICH IS THAT WHERE THERE IS A

17

COMMUNICATION MADE TO ANOTHER PARTY IN THE COURSE OF A MATTER

18

OF COMMON INTEREST, AND THE COMMUNICATION IS DESIGNED TO

19

FURTHER THAT EFFORT, THAT WILL NOT BE A WAIVER OF THE

20

PRIVILEGE.

21

I'M JUST GOING TO CALL IT THE POTATO CASE AS WELL AS

AND THERE'S SOME REAL FACTUAL ANALYSIS THAT HAS TO

22

OCCUR HERE BECAUSE THE DOCTRINE DOES NOT EXTEND TO

23

COMMUNICATIONS THAT ARE BUSINESS ORIENTED OR HAVING TO DO

24

WITH BUSINESS STRATEGY.

25

RYU WROTE, "COOPERATION INFORMING A COMMON LEGAL STRATEGY."

PARTIES HAVE TO DEMONSTRATE AS JUDGE

21
1
2

AND THE COMMUNICATION HAS TO ADVANCE THAT LEGAL STRATEGY.
SO, IN THE CASE OF THE POTATO LITIGATION THERE WAS

3

SOME COOPERATIVE POTATO MARKETING GROUP.

4

DISCUSSIONS ABOUT COMPLIANCE WITH FEDERAL LAW SO THAT

5

SOMETHING INVOLVING POTATOES DOESN'T BREAK THE LAW.

6

AND THERE WERE

AND THE DISTRICT COURT IN THE POTATO CASE -- HEY,

7

NOT COINCIDENTALLY, UP IN IDAHO -- CONCLUDED THAT THE

8

TRANSACTIONS THERE WERE JUST STRAIGHT BUSINESS DEALS.

9

HAD TO DO WITH MARKETING POTATOES, AND THAT WHATEVER LEGAL

10

ISSUES WERE DISCUSSED WERE REALLY TANGENTIAL TO THE

11

THIS

COMMUNICATIONS.

12

SO, WHERE I AM IS THIS.

I THINK I NEED TO KNOW --

13

AND I NEED TO DETERMINE AS BEST I CAN WHAT WAS THE

14

RELATIONSHIP BETWEEN SUMMY AND ASCAP AND WHY WAS THIS

15

MATERIAL CONVEYED FROM SUMMY TO ASCAP.

16

AND I THINK IT'S FAIR TO SAY AFTER SORT OF BRIEFLY

17

REVIEWING THE UNDERLYING COUDERT MATERIALS -- LIKE I SAID, I

18

DIDN'T GO LINE BY LINE BECAUSE I DON'T THINK IT'S RELEVANT,

19

ESPECIALLY SINCE THERE'S AN ACKNOWLEDGMENT THAT THE PRIVILEGE

20

APPLIES THERE.

21

TRANSMIT THAT INFORMATION TO ASCAP.

22

BUT THE ISSUE IS WHY WOULD SUMMY WANT TO
WHAT'S THE POINT.

AND I THINK -- I THINK IT IS FAIR TO CONCLUDE THAT

23

THE POINT WAS BECAUSE DOWN THE ROAD ASCAP MIGHT BE LITIGATING

24

THOSE COPYRIGHTS -- LICENSING OR LITIGATING THOSE COPYRIGHTS

25

ON BEHALF OF SUMMY.

AND I DON'T THINK THAT'S MAGIC.

I DON'T

22
1

THINK THAT'S UNANTICIPATED.

2

WHY PEOPLE HIRE ASCAP TO ADMINISTER THESE RIGHTS BECAUSE AN

3

INDIVIDUAL COMPANY CAN'T GO TO EVERY RADIO STATION AND EVERY

4

BAR AND POLICE THE RIGHTS.

5

THAT'S WHAT ASCAP DOES.

THAT'S

AND GIVEN THAT THERE MAY HAVE BEEN SOME MURKINESS

6

REGARDING THE STATUS OF THE COPYRIGHT TO THE "HAPPY BIRTHDAY"

7

SONGS, BACK THEN AND TODAY, THAT'S WHY YOU FOLKS ARE HERE IN

8

2014.

9

THE COMPLAINT ABOUT THE LEGITIMACY OF THE RIGHTS AND WHETHER

10

THEY WERE EXPIRED, WHETHER THE SONG IS IN THE PUBLIC DOMAIN.

11

PROBABLY EVEN MORE.

BECAUSE THERE ARE LEGITIMATE DISPUTES AS SET FORTH IN

12

I THINK IT'S FAIR TO SAY THAT SOME OF THOSE ISSUES

13

EXISTED IN 1976, 1978 AND IN 1979 WHEN THIS INFORMATION WAS

14

TRANSMITTED TO THE GENERAL COUNSEL OF ASCAP -- NOT IN

15

ANTICIPATION OF OR IN RESPONSE TO A SPECIFICALLY IDENTIFIED

16

LAWSUIT.

17

COULD IT HAVE BEEN COMING DOWN THE PIKE.

18

NEED TO FORMULATE A COMMON LEGAL STRATEGY, WHICH IS THE

19

LANGUAGE IN THE POTATO CASE.

20

I DON'T THINK THE RECORD SHOWS THAT AT ALL.

BUT

AND WAS THERE A

THE EVIDENCE IS THIN BECAUSE WE'RE TALKING ABOUT

21

SOMETHING HISTORICAL, BUT I THINK IT'S A FAIR INFERENCE.

22

THINK IT'S A FAIR INFERENCE.

23

I

I WAS -- I WAS TRYING TO READ THIS VERY NARROWLY.

24

THAT'S MY OBLIGATION AND IT'S -- THE PLAINTIFFS HAVE QUITE

25

PROPERLY SOUGHT TO PURSUE A CLAIM THAT THIS PRIVILEGE WAS

23
1

WAIVED AND THAT THE COMMON INTEREST DOCTRINE DOES NOT APPLY.

2

AND I READ EVERYTHING CLOSELY AND NARROWLY AS I'M OBLIGED TO

3

DO.

4
5
6

ONE THING THAT I COULD NOT GET ON BOARD WITH,
THOUGH, WAS -AND I'M HAPPY TO HEAR FROM YOU ON THIS.

I HAVEN'T

7

-- THIS IS A TENTATIVE, AND I WANT TO HEAR FROM YOU FOLKS.

8

BECAUSE IF I DON'T HAVE IT RIGHT, I DON'T WANT TO DO IT.

9

BUT WHEN YOU FOLKS SAID ON THE PLAINTIFF'S SIDE

10

THAT MS. STENGSTACK -- SENGSTACK GRATUITOUSLY TURNED OVER

11

THIS MATERIAL TO ASCAP, GRATUITOUSLY, IMPLYING NO PURPOSE,

12

IMPLYING THAT IT WAS SORT OF A RANDOM EVENT, IMPLYING THAT

13

THERE WAS NO -- NO MERIT OR NO LEGAL SIGNIFICANCE TO THIS, I

14

JUST RESPECTFULLY WASN'T CONVINCED.

15

I THINK THE FACT THAT A PUBLISHING HOUSE THAT HAD

16

GONE OUT TO WHAT AT THE TIME WAS, YOU KNOW, ONE OF AMERICA'S

17

PREMIER LAW FIRMS TO GET SOME PRETTY DETAILED ANALYSIS OF THE

18

EXISTENCE AND STATUS OF ITS COPYRIGHT CLAIM, AND THEN

19

PROVIDED THAT TO NOT A FUNCTIONARY AT ASCAP, NOT SOME

20

LOW-LEVEL EXECUTIVE OR OFFICE MANAGER OR ANYTHING, BUT THE

21

GENERAL COUNSEL OF AMERICA'S BIGGEST -- OR SECOND BUSINESS.

22

THEY CAN FIGHT ABOUT THAT -- YOU KNOW, A MAJOR LICENSING

23

FIRM, THAT FELT LIKE IT WASN'T GRATUITOUS.

24

THERE WAS A REAL ISSUE ON WHICH ONE OR BOTH PARTIES NEEDED

25

GUIDANCE, AND THIS COMMUNICATION SEEMED TO HAVE BEEN DONE

THAT FELT LIKE

24
1

WITH THE INTENTION OF ADVANCING A COMMON LEGAL STRATEGY,

2

EXPLOITATION OF THIS RIGHT, AND BEING DONE AT QUITE A HIGH

3

LEVEL.

4

SO, WHERE I AM IS THIS.

I HAVE TO DEAL WITH -- AND

5

I'M PREPARED TO ACCEPT THE SCHWARTZ AND ASCAP CASES'

6

STATEMENT THAT BY VIRTUE OF THE NATURE OF WHAT ASCAP IS, THIS

7

ASSOCIATION, THAT IS OWNED BY AND OPERATES ON BEHALF OF ITS

8

MEMBERS.

9

WHATEVER THIS SAYS -- YOU KNOW, THERE'S PRETTY COMPELLING LAW

I THINK WARNER OWNS ONE-FIVE HUNDRED THOUSANDTH OF

10

THAT SAYS THAT COMMUNICATIONS BETWEEN THE MEMBERS AND THAT

11

ORGANIZATION'S LAWYER CAN BE PRIVILEGED, ASSUMING THEY

12

DEMONSTRATE THESE ADDITIONAL FACTS THAT IT WAS FOR OBTAINING

13

LEGAL ADVICE.

14

CASE DID NARROW THE ORIGINAL SCHWARTZ STATEMENT, AND I'M

15

PREPARED TO GO WITH THE MORE NARROW FORMULATION IN THE

16

U.S. VERSUS ASCAP DECISION.

17
18
19

AND THAT'S WHERE I THINK THE MORE RECENT ASCAP

I THINK -- I THINK THEY'RE THERE.

I THINK THIS IS

A PROTECTED COMMUNICATION WITHIN THE SCOPE OF THE PRIVILEGE.
AS TO THE ALTERNATIVE ARGUMENT THAT IF THE

20

COMMUNICATION, IF THE TRANSMITTAL WAIVED THE PRIVILEGE, BUT

21

TO RESCUE THE PRIVILEGE, WE'D EXAMINE THE COMMON INTEREST

22

EXCEPTION, WHICH ALSO HAS TO BE CONSTRUED NARROWLY.

23

AND BOTH SIDES DID A NICE JOB RESEARCHING THIS, AND

24

I KNOW THAT THERE ARE CASES ON BOTH SIDES OF THIS ISSUE.

25

THE POTATO CASE AND THE NIDEC CASE AND THERE'S A FEDERAL

AND

25
1

CIRCUIT CASE HAVING TO DO WITH PATENT LAW.

2

I JUST FIND THAT THE NATURE OF COPYRIGHT IS AN INTELLECTUAL

3

PROPERTY RIGHT.

4

NOT TO DEVELOP THE PRODUCT.

5

COMPETING BUSINESSES.

6

VALIDITY OF THE "HAPPY BIRTHDAY" COPYRIGHT IN ORDER TO VALUE

7

SUMMY FOR SOME TRANSACTION, WHICH IS WHAT I UNDERSTAND SOME

8

OF THE CASES HAVE GONE OFF ON.

9

I LOOKED AT THEM.

AND THE NATURE OF WHAT ASCAP WAS HERE TO DO,
THERE WASN'T A MERGER OF TWO

THERE WASN'T AN EVALUATION OF THE

MY TAKE WAS THAT THIS WAS SUMMY HIRING AN OUTSIDE

10

PARTY FOR PURPOSES OF ASSERTING SUMMY'S OWN RIGHTS.

11

ORDER TO EFFECTIVELY DO THAT, CHOSE TO CONVEY PRIVILEGED

12

INFORMATION WITH THE UNSTATED, BUT PRETTY APPARENT,

13

EXPECTATION THAT THE MATERIAL WOULD STAY WITHIN THE

14

PRIVILEGE.

15

LITIGATION ANTICIPATED BECAUSE PEOPLE FIGHT IN FEDERAL COURT

16

ALL THE TIME ABOUT COPYRIGHT.

17

AND IN

AND THAT THERE WAS AN INTENDED -- THERE WAS

AND THE SPECIFIC TRANSACTION AT ISSUE HERE, THE

18

SPECIFIC COMMUNICATION AND THE UNDERLYING MATERIAL RELATING

19

TO THE VALIDITY OF THE RIGHT OF THE COPYRIGHT I THINK DOES

20

FALL WITHIN THE COMMON INTEREST EXCEPTION TO THE WAIVER OF

21

THE ATTORNEY-CLIENT PRIVILEGE AS SET FORTH IN THE CASES CITED

22

TO ME.

23

SO, THAT'S TENTATIVELY WHERE I AM BASED ON A VERY

24

THOROUGH REVIEW OF SOME VERY GOOD PAPERS FROM BOTH SIDES.

25

I'M NOT JUST COMPLIMENTING YOU BECAUSE I LIKE TO DISARM.

I'M

26
1

COMPLIMENTING YOU BECAUSE YOU DID A GOOD JOB.

2

KNOW THIS STUFF VERY, VERY WELL.

3

AND BOTH SIDES

BUT I THINK THAT BASED ON WHAT I HAVE HERE I DO NOT

4

HAVE A BASIS FOR OVERRULING THE CLAIM OF PRIVILEGE AS

5

REQUESTED BY PLAINTIFFS.

6
7
8
9

I KNOW YOU'VE ASKED FOR OTHER RELIEF, AND I'M NOT
ENTIRELY SURE I SEE HOW IT PLAYS IN.
SO, WHAT MAY MAKE SENSE TO DO IS EITHER HEAR FROM
YOU RIGHT NOW IF YOU WANT CLARIFICATION OF MY THOUGHTS.

IF

10

YOU WANT TO TAKE A FEW MINUTES AND TALK TO YOUR COLLEAGUES

11

AND FIGURE OUT WHAT YOU WANT TO DO SO WE CAN DO THIS IN AN

12

ORDERLY WAY, I'M FINE WITH THAT AS WELL.

13

GOT A PREFERENCE?

14

MR. RIFKIN:

MR. RIFKIN LEAPING TO HIS FEET.

WELL, YOUR HONOR, IT MAKES NO

15

DIFFERENCE TO ME.

I'M PREPARED TO TRY TO ADDRESS SOME OF

16

YOUR CONCERNS NOW.

17

DEFENDANT'S BURDEN, IT'S OUR MOTION.

18

WE WOULD ADDRESS YOUR HONOR FIRST IN ANY EVENT.

19

OF YOUR HONOR'S TENTATIVE IT CERTAINLY MAKES SENSE FOR US --

IT'S OUR MOTION.

20

THE COURT:

21

MR. RIFKIN:

22
23
24
25

ALTHOUGH IT IS THE
SO, I WOULD EXPECT THAT
BUT IN LIGHT

THAT'S RIGHT.
-- TO DO THAT.

AND I'M PREPARED TO

PROCEED NOW.
BUT YOU SAID ORIGINALLY THAT YOU THOUGHT MAYBE YOU
MIGHT WANT TO TAKE A BREAK.
THE COURT:

SO, BEFORE I JUMP RIGHT IN --

OH, NO, I'M READY.

I'M READY.

27
1

MR. RIFKIN:

2

THE COURT: -- CLEAR YOUR CALENDARS.

3

YOU'RE READY TO GO?
CANCEL YOUR

DINNER PLANS.

4

(LAUGHTER.)

5

MR. RIFKIN:

OKAY.

NOT TO -- NOT TO -- NOT TO MAKE

6

A JOKE ABOUT ONE OF THE CASES WE BRIEFED, BUT THIS IS THE BIG

7

LEAGUES.

8

THE COURT:

9

MR. RIFKIN:

10
11

THE COURT:

AND YOU'VE GOT YOUR MLB STUFF AS WELL.
THERE YOU GO.

THERE YOU GO.

BUT YOU SUCCESSFULLY CONVINCED ME IT

WAS SUCH A BRIEF DECISION THAT IT --

12

MR. RIFKIN:

13

THE COURT:

14

BUT GO AHEAD.

15

MR. RIFKIN:

16

APPRECIATE THE TENTATIVE RULING.

17

HERE ALL THAT FREQUENTLY AND WHEN I DO I LIKE HOW SOME OF THE

18

COURTS IN THIS DISTRICT ADOPT THE STATE COURT PRACTICE OF

19

ISSUING TENTATIVE DECISIONS.

20

EASIER FOR US TO FOCUS IN ON THE ISSUES THAT ARE REALLY

21

GERMANE, WHICH IS WHAT I'D LIKE TO TRY TO DO NOW.

22
23

THE COURT:

YES.
IT DIDN'T WARRANT THE HIGHEST RELIANCE.
YOU HAVE THE FIELD IN FRONT OF YOU.
AND, YOUR HONOR, I DO -- I SINCERELY
I DON'T GET TO PRACTICE

IT MAKES -- IT MAKES IT MUCH

I THINK YOU'LL HEAR THE FEDERAL JUDGES

SAY THAT THE STATE COURTS HAVE ADOPTED OURS.

24

MR. RIFKIN:

25

(LAUGHTER.)

OKAY.

IT MAY VERY WELL BE THAT WAY.

28
1

MR. RIFKIN:

2

THE COURT:

3

IT MAY VERY WELL BE THAT WAY.
THE SUPREMACY CLAUSE OF THE

CONSTITUTION IS ONE OF OUR FAVORITES.

4

MR. RIFKIN:

5

THE COURT:

6

MR. RIFKIN:

FAIR ENOUGH.

FAIR ENOUGH.

GO AHEAD.
SO, I THINK YOUR HONOR HAS CORRECTLY

7

SUMMARIZED THE ISSUES.

8

VERY BRIEF INTRODUCTORY REMARKS.

9

AND I DO WANT TO MAKE A COUPLE OF

AND, FIRST, WE DID NOT INTEND TO ARGUE -- AND IF WE

10

DIDN'T MAKE IT CLEAR ENOUGH, LET ME TRY TO DO THAT NOW.

11

DID NOT INTEND TO ARGUE THAT WHEN MR. REIMER PRODUCED THE

12

DOCUMENTS TO US IN 2014 THAT THAT WAS A WAIVER.

13

WE

INSTEAD WHAT WE THOUGHT WE TRIED TO EXPLAIN -- AND

14

I'LL TRY TO EMPHASIZE THIS A LITTLE BIT MORE NOW -- IS THAT

15

WHEN HE DID THAT, THAT SHOWED HOW ASCAP REGARDED THOSE

16

DOCUMENTS.

17

THE COURT:

18

MR. RIFKIN:

THEY DID NOT REGARD IT AS CONFIDENTIAL.
AS PRIVILEGED.

THEY DIDN'T BELIEVE --

19

IN OTHER WORDS -- AND I WILL TELL YOU, AND THIS IS ON THE

20

RECORD IN MR. REIMER'S DEPOSITION.

21

THE COURT:

22

MR. RIFKIN:

MR. REIMER CALLED ME --

DO I HAVE THAT?
YOU DO.

YOU HAVE BOTH TRANSCRIPTS.

23

THERE WAS A -- AND THEY WERE SUBMITTED.

THE FIRST ONE WAS

24

SUBMITTED WITH OUR JOINT STIPULATION.

25

MR. REIMER'S DEPOSITION TAKEN ON JULY 11TH.

THAT'S A TRANSCRIPT OF
THAT WAS THE

29
1

SUBJECT OF ASCAP'S MOTION TO QUASH.

2

THE COURT:

3

MR. RIFKIN:

4

WHERE?
THEY DIDN'T WANT MR. REIMER TO

TESTIFY.

5

THE COURT:

6

(PLAINTIFF'S COUNSEL CONFERRING.)

7

THE COURT:

8

(PLAINTIFF'S COUNSEL CONFERRING.)

9

THE COURT:

10

WHERE?

BECAUSE I FOUND BLEITZ --

I FOUND BLEITZ AND I FOUND MARCOTUILLO.

MR. RIFKIN:

YES, THERE'S TWO TRANSCRIPTS.

11

YOUR HONOR, THEY WERE DONE AT TWO DIFFERENT TIMES.

12

AND,

THAT'S WHY THEY WERE SUBMITTED SEPARATELY.

13
14

SO,

THE SECOND ONE -- MS. MANIFOLD JUST HANDED ME THE
SECOND ONE.

MR. REIMER WAS DEPOSED ON JULY 11.

15

WHAT HAPPENED WAS THIS.

ASCAP ORIGINALLY --

16

THE COURT:

17

WHAT IS THE DOCUMENT NUMBER?

18

MR. RIFKIN:

19

THE COURT:

20

MS. MANIFOLD:

21

MR. RIFKIN:

WELL, HANG ON.

OKAY.
BECAUSE I'M NOT SURE I HAVE IT.
HERE'S THE SUPPLEMENTAL ONE.
OKAY.

I'M REFERRING NOW TO DOCUMENT

22

126-1.

AND IT'S EXHIBIT 14 OF THAT.

THAT'S THE SUPPLEMENTAL

23

DECLARATION THAT MS. MANIFOLD SUBMITTED TOGETHER WITH OUR

24

SUPPLEMENTAL BRIEF ON THE 22ND.

25

MR. REIMER'S DEPOSITION ON JULY 21ST.

AND THAT'S THE RESUMPTION OF

30
1
2

THE COURT:

ALL RIGHT.

WHAT HAPPENED WAS I

RECEIVED AN EXHIBIT 17 --

3

MR. RIFKIN:

NO.

4

THE COURT: -- WHICH SHOWED UP SUPPLEMENTALLY.

5

(PLAINTIFF'S COUNSEL CONFERRING.)

6

THE COURT:

ALL RIGHT.

I NEED TO TAKE A LOOK AT

7

THAT BECAUSE, YOU KNOW, YOU RUN A RISK WHEN YOU ASK FOR

8

UNDER-SEAL FILING OF THINGS BECAUSE IT DOESN'T COME THROUGH

9

THE COURT'S NORMAL PRACTICES.

10

AND I DON'T KNOW THAT YOU

FOLKS --

11

MS. MANIFOLD:

12

FILED UNDER SEAL, I DON'T BELIEVE.

13

MR. RIFKIN:

14

MS. MANIFOLD:

15

MR. RIFKIN:

MR. REIMER'S DEPOSITION WAS NOT

NO.
IT WAS -- IT WAS -IT HASN'T BEEN DESIGNATED

16

CONFIDENTIAL.

17

THEY BE GIVEN TIME TO DO THAT.

18

STIPULATED CONFIDENTIALITY ORDER, THAT'S A PUBLIC DOCUMENT.

19

AND THERE WAS NO REQUEST ON THE RECORD THAT
SO, PURSUANT TO OUR

AND THERE'S TWO -- THERE'S TWO TRANSCRIPTS.

HE WAS

20

-- HE WAS -- WHAT HAPPENED WAS AFTER WE SUBPOENAED ASCAP TO

21

PROVIDE --

22

THE COURT:

CAN YOU STAND BY FOR ONE SECOND.

23

MR. RIFKIN:

24

(PAUSE IN PROCEEDINGS.)

25

THE COURT:

SURE.

WELL, 126 IS BOTH A SEALED AND

31
1

UNDER-SEAL DOCUMENT BECAUSE IT WAS REDACTED.

2

OKAY.

AND, SO --

I SEE WHAT HAPPENED.

3

ALL RIGHT.

4

MR. RIFKIN:

I WILL TAKE A LOOK AT IT BEFORE -OKAY.

5

NUMBER 126-3.

6

DECLARATION.

7

AND THIS IS -- THIS IS DOCUMENT

MR. REIMER'S DEPOSITION.

8
9

IT'S EXHIBIT 14 TO THAT SUPPLEMENTAL
AND IT'S THE TRANSCRIPT FROM THE SECOND DAY OF

YOUR HONOR MAY RECALL WHAT HAPPENED WAS ASCAP
ORIGINALLY --

10

THE COURT:

RESISTED --

11

MR. RIFKIN: -- MOVED TO QUASH THE DEPOSITION --

12

THE COURT:

13

MR. RIFKIN:

RESISTED.
THEY -- THEY CONSENTED TO THE

14

DEPOSITION.

AND AFTER 39 MINUTES OF DEPOSITION THE FIRST

15

TIME, THEY REPEATEDLY INSTRUCTED MR. REIMER NOT TO ANSWER

16

QUESTIONS.

17

ULTIMATELY CONSENTED TO ALLOW HIM TO COME BACK.

18

ON THE 25TH OF JULY.

19

NUMBER 126-3.

WE FILED A MOTION TO COMPEL.

20

THE COURT:

21

MR. RIFKIN:

THEY AGAIN
HE CAME BACK

AND THAT'S EXHIBIT 14, WHICH IS DOCKET

IT'S ON MY MONITOR RIGHT NOW.
OKAY.

AND IF YOU TURN TO PAGE 84 OF

22

THE TRANSCRIPT, WHICH I THINK IS PAGE 21 OF 25 OF THE EXHIBIT

23

--

24

THE COURT:

GOT IT.

25

MR. RIFKIN: -- HE WAS ASKED IF -- HE, IN FACT, TOLD

32
1

ME BEFORE HE PRODUCED THE DOCUMENTS.

2

WE'RE PRODUCING ABOUT 500 PAGES OF DOCUMENTS.

3

YOU WILL FIND AMONG THEM THE TWO DOCUMENTS YOU WILL FIND

4

EXTREMELY INTERESTING.

5

THE COURT:

6

MR. RIFKIN:

7

OKAY.

HE CALLED ME.

HE SAID

AND HE SAID

SO, HE --

THEY'RE A DETAILED ANALYSIS OF THE

COPYRIGHT.

8

THE COURT:

9

MR. RIFKIN:

10

THE COURT:

11

MR. RIFKIN:

WE'VE GOT SOME GOOD STUFF FOR YOU.
THAT'S EXACTLY WHAT HE SAID.
YES.
AND, SO, WHAT -- WHAT WE WANTED THE

12

COURT TO UNDERSTAND IS MR. REIMER WAS COMPLETELY AWARE OF

13

WHAT HE WAS PRODUCING.

14

PRODUCED THEM DELIBERATELY.

15

REFLECTS HIS JUDGMENT THAT THEY WERE NOT PRIVILEGED.

16

THOUGHT THEY WERE PRIVILEGED, HE WOULD NOT HAVE PRODUCED THEM

17

TO US.

18

PRODUCTION.

19

WARNER HAS SAID THAT THEY REGARD THEM AS PRIVILEGED.

HE KNEW IT WAS IN THE DOCUMENTS.

HE

AND IT'S OUR VIEW THAT THAT
IF HE

THERE WASN'T ANYTHING ACCIDENTAL ABOUT HIS
HE MAY NOW REGRET HAVING PRODUCED THEM BECAUSE

20

THE COURT:

21

MR. RIFKIN:

RIGHT.
BUT WE THINK THAT ASCAP'S

22

UNDERSTANDING OF THOSE DOCUMENTS IS PERHAPS AS IMPORTANT AS

23

WHAT WE'RE NOW TRYING TO SURMISE FROM THE TRANSMITTAL.

24
25

AND IT JUST SO HAPPENS THAT MR. REIMER IS THE ONLY
PERSON WHO WAS AROUND AT THE TIME.

HE'S BEEN AN EMPLOYEE OF

33
1

ASCAP IN THEIR LEGAL DEPARTMENT SINCE 1971.

HE WAS ACTUALLY

2

THERE WHEN THESE DOCUMENTS WERE SENT BY SUMMY-BIRCHARD, BY

3

MRS. SENGSTACK TO BERNIE CORMAN, WHO WAS GENERAL COUNSEL --

4

THE COURT:

5

MR. RIFKIN: -- OF ASCAP.

6

NOW, HE DIDN'T SAY HE WAS AWARE OF THE DOCUMENTS AT

7

THE TIME.

8

UH-HUM.

HE CERTAINLY --

9

BUT HE WAS CERTAINLY AWARE OF THEM IN 2014.

THE COURT:

AND

BECAUSE HE PRODUCED THEM IN RESPONSE --

10

MR. RIFKIN:

11

THE COURT: -- TO YOUR SUBPOENA.

12

MR. RIFKIN:

13

THE COURT:

14

MR. RIFKIN:

15
16

-- DIDN'T REGARD THEM --

CORRECT.
GOT IT.
AND HE CERTAINLY DIDN'T REGARD THEM AS

PRIVILEGED WHEN HE PRODUCED THEM IN 2014.
AND WE THINK THAT SHOULD BEAR ON THE COURT'S

17

ATTEMPT TO TRY TO RECONSTRUCT THE PURPOSE FOR THE

18

COMMUNICATION FROM MRS. SENGSTACK IN 1979.

19

HONOR -- WE THINK THAT IS THE NUB OF THE ISSUE.

20

YOU DO STRIP IT ALL AWAY, WE DO AGREE WITH MOST OF WHAT THE

21

COURT HAS SAID, THAT REALLY THIS RELATES TO THE PURPOSE FOR

22

THE COMMUNICATION.

23

DEFENDANT'S CITE FOR THE PRINCIPLE THAT THE IN-HOUSE COUNSEL

24

FOR A TRADE ASSOCIATION THAT REPRESENTS A HALF A MILLION

25

MEMBERS NOW AND OVER A HUNDRED THOUSAND MEMBERS AT THE TIME

AND THAT IS, YOUR
BECAUSE WHEN

EVEN THE SCHWARTZ CASE THAT THE

34
1

IS ALSO THE LAWYER FOR EVERY ONE OF THEM.

2

SAYS THAT IT ONLY SERVES AS A MEMBER TO THE EXTENT THAT --

3

IT'S ONLY SERVES AS COUNSEL FOR THE MEMBER TO THE EXTENT THAT

4

THE MEMBER IS SEEKING LEGAL ADVICE.

5

THE COURT:

6

MR. RIFKIN:

EVEN THAT CASE

UH-HUH.
SO, WHETHER YOU -- WHETHER YOU LOOK AT

7

THIS UNDER THE RUBRIC OF DID BERNIE CORMAN, ASCAP'S GENERAL

8

COUNSEL, REPRESENT SUMMY IN 1979, THE QUESTION IS WAS SUMMY

9

ASKING FOR MR. CORMAN'S LEGAL ADVICE.

10

AND WE SUBMIT THAT THE DEFENDANTS CAN'T POSSIBLY

11

SUSTAIN THAT BURDEN IN LIGHT OF THE UNDISPUTED FACTS.

12

THE PRINCIPAL UNDISPUTED FACTS ARE AS FOLLOWS:

13

AND

NUMBER ONE, THE LETTER THAT MRS. SENGSTACK WROTE TO

14

MR. CORMAN IN 1979 DIDN'T ASK FOR LEGAL ADVICE, DIDN'T

15

SOLICIT LEGAL ADVICE, DIDN'T IDENTIFY THE COUDERT LETTERS AS

16

PRIVILEGED, DIDN'T ASSERT THAT THEY WERE TO BE PRIVILEGED,

17

DIDN'T REFER TO ANY ACTUAL, CONTEMPLATED, ANTICIPATED OR ANY

18

OTHER LITIGATION, DIDN'T MENTION ANY COMMON LEGAL ENTERPRISE

19

BETWEEN THEM.

20

AND AS IMPORTANT, THERE IS NO RESPONSE, ZERO, NONE,

21

FROM ASCAP THAT ASCAP EVER PROVIDED LEGAL ADVICE, EVER

22

RENDERED LEGAL ADVICE TO SUMMY-BIRCHARD, EVER USED THOSE

23

DOCUMENTS IN ANY WAY TO FURTHER THE INTERESTS OF

24

SUMMY-BIRCHARD.

25

ZERO.

NOTHING.

NOT A SINGLE THING.

ASCAP HAS NOT EVER SOUGHT TO ENFORCE A COPYRIGHT TO

35
1

"HAPPY BIRTHDAY," NOT IN THE 40 YEARS SINCE THAT LETTER WAS

2

SENT AND NOT IN THE 40 YEARS BEFORE IT WAS SENT.

3

NEVER HAPPENED.

4

THE COURT:

5

MR. RIFKIN:

IT HAS

HOW IS THAT RELEVANT?
BECAUSE I THINK THE SUGGESTION THAT

6

WHAT HAPPENED IN 1979 WAS PERHAPS BECAUSE THERE MIGHT BE A

7

TIME WHEN ASCAP MIGHT BE CALLED UPON TO ENFORCE A COPYRIGHT

8

TO "HAPPY BIRTHDAY" -- MAYBE -- I THINK JUST FLIES IN THE

9

FACE OF NOT ONLY THE PARTICULAR FACTS OF THE LETTER, THAT IS,

10

MRS. SENGSTACK'S LETTER TO MR. CORMAN, BUT ALSO THE 80-YEAR

11

HISTORY SINCE THE TIME THE SONG WAS -- AND I'LL LOOSELY SAY

12

THIS -- COPYRIGHTED IN 1935 --

13

THE COURT:

14

MR. RIFKIN: -- TO TODAY.

15

THE COURT:

16

MR. RIFKIN:

17
18

YOU'RE NOT WAIVING ANYTHING BY --

DON'T WORRY ABOUT THAT.
AND WE DO DISAGREE WITH WHETHER THERE

WAS A COPYRIGHT OR NOT.
YOUR HONOR, INTERESTINGLY YOU SAID, AND I MADE A

19

NOTE OF THIS, YOUR HONOR SAID, AT THE TIME IN 1979 MRS.

20

SENGSTACK OR SUMMY-BIRCHARD COULD HAVE SENT, FOR EXAMPLE, A

21

COMFORT LETTER -- MAYBE FROM COUDERT OR FROM SOMEBODY ELSE,

22

MAYBE FROM THEIR OWN IN-HOUSE COUNSEL IF THEY HAD SOMEONE

23

LIKE THAT -- ASSERTING THAT THE COPYRIGHT WAS PROTECTED.

24
25

AND YOUR HONOR KNOWS FROM SOME OF THE CASES THAT
WE'VE CITED TO YOU THAT THERE ARE INSTANCES WHERE ASCAP GETS

36
1

INTO A DISPUTE BETWEEN MEMBERS.

2

LOOK, WE DON'T KNOW WHO HAS THE RIGHT TO WHAT SONG.

3

REALLY DON'T KNOW.

4

IS WE WANT YOU TO INDEMNIFY US IN THE EVENT IT TURNS OUT THAT

5

YOU'RE WRONG.

6

INDEMNIFICATION FROM SUMMY.

7

AND IN THAT CASE ASCAP SAYS,

WE CAN'T DECIDE THAT.

WE

WHAT WE WANT TO DO

AND ASCAP CERTAINLY COULD HAVE SOUGHT THAT

BUT ONE OF THE THINGS THAT I WROTE DOWN THAT I

8

THOUGHT WAS REALLY VERY INTERESTING IS ASCAP COULD HAVE --

9

I'M SORRY, SUMMY COULD HAVE SENT A COPY OF THE COPYRIGHT.

I

10

MEAN, WHAT BETTER PROOF WOULD THERE BE OF THE EXISTENCE OF A

11

COPYRIGHT IN A SONG THAN THE COPYRIGHT.

12

THEY DIDN'T DO THAT.

WE THINK THAT'S RELEVANT.

IT

13

CERTAINLY SUGGESTS TO US -- AND, AGAIN, PUT IN THE CONTEXT OF

14

THE FACT THAT MRS. SENGSTACK WROTE TO MR. CORMAN THREE YEARS

15

AFTER SHE GOT THE DETAIL ANALYSIS.

16

FROM COUDERT WAS 1976.

17

LETTER WAS A FOLLOW-UP LETTER.

18

THE LONG, LENGTHY LETTER

THE SUBSEQUENT LETTER, THE 1978

BUT THERE'S NO INDICATION THAT IN THAT INTERVENING

19

THREE-YEAR PERIOD OF TIME ASCAP WAS INVOLVED AT ALL IN THE

20

DISPUTE OVER THE COPYRIGHT TO "HAPPY BIRTHDAY."

21

DISPUTE THAT HAS BEEN SIMMERING FOR YEARS.

22

THE COURT:

23

MR. RIFKIN:

24
25

THIS IS A

BUT THERE WAS -- THERE IS -COUDERT'S LETTER DIDN'T COME OUT OF

THE BLUE.
THE COURT:

EXCUSE ME.

THERE IS A REFERENCE IN MS.

37
1

SENGSTACK'S -- STENGSTACK'S, SORRY.

2

MR. RIFKIN:

3

THE COURT:

4

THERE IS A REFERENCE IN HER LETTER TO A PRIOR

5

SENGSTACK.
SENGSTACK.

DISCUSSION WITH THE LAWYER.

6

SO, YOU ENTIRELY HAVE ME ON SORT OF THE PROFORMA

7

NATURE OF WHAT THE TRANSMITTAL LETTER SAYS.

YOU'RE

8

ABSOLUTELY RIGHT.

9

MORE CONCLUSIVELY DEMONSTRATE AN INTENTION TO ASSERT A

IT DOES NOT HAVE THINGS THAT WOULD PERHAPS

10

PRIVILEGE OR A REQUEST FOR A PROTECTIVE.

11

RIGHT.

12

MR. RIFKIN:

13

THE COURT:

14
15

AGAINST WARNER.

YOU'RE ABSOLUTELY

SURE.
AND THAT DOES WEIGH -- THAT DOES WEIGH

I AM COMPLETELY ON BOARD.

I'M A LITTLE -- AND I DON'T MEAN TO CUT YOU OFF,

16

BUT I THINK, AGAIN, IT'S KIND OF FAIR TO HAVE A DIALOGUE.

17

I'M NOT PARTICULARLY SWAYED BY THE FACT THAT THERE WAS NO

18

LITIGATION AFTERWARDS.

19

THINK I'M GOING TO BE SUED, AND THE LAWYER SAYS LET'S TALK.

20

AND WE HAVE A DISCUSSION.

21

THAT DOESN'T MEAN YEARS FROM NOW SOMEONE IS GOING TO SAY,

22

WELL, BACK WHEN YOU TALKED WITH YOUR LAWYER YOUR PRIVILEGE

23

DOESN'T APPLY.

24

REASON TO BELIEVE THAT I NEEDED ADVICE.

25

I GO TO MY LAWYER TODAY.

AND I SAY I

AND THEN AFTERWARDS I'M NOT SUED.

THE QUESTION IS AT THE TIME DID I HAVE A

AND I'M A LITTLE -- I'M A LITTLE TROUBLED BY

38
1
2

EX-POST EXPLANATION OF THE CIRCUMSTANCES.
MR. RIFKIN:

I UNDERSTAND THAT.

AND I DON'T -- I

3

DON'T -- I DON'T THINK IN THIS CASE -- I DON'T THINK YOU

4

WOULD -- YOU WOULD NEED TO LOOK ONLY AT THE FUTURE.

5

WORDS, ONLY LOOK FROM 1979 TO THE PRESENT, THOSE 40 YEARS.

6

BUT I THINK YOU NEED TO PUT THOSE 40 YEARS IN THE SCALE WHEN

7

YOU LOOK BACK AT THE 40 YEARS BEFORE IT.

8

YEARS BEFORE IT, THERE WAS NEVER A LAWSUIT FILED UNDER THE

9

COPYRIGHT -- NEVER, EVER, EVER.

10

IN OTHER

BECAUSE IN THE 40

THERE'S NEVER BEEN -- I JUST WANT THE COURT TO

11

UNDERSTAND.

12

TO YOU" WAS PURPORTEDLY COPYRIGHTED, NOT A SINGLE OWNER --

13

AND IT HAS PASSED THROUGH MANY HANDS -- NOT A SINGLE OWNER

14

HAS EVER SUED ANYONE FOR INFRINGING ANY COPYRIGHT TO THE SONG

15

"HAPPY BIRTHDAY TO YOU."

16

IN THE 80 YEARS SINCE THE SONG "HAPPY BIRTHDAY

IN THE FIVE INSTANCES -- AND THIS IS I THINK

17

IMPORTANT -- IN THE FIVE INSTANCES WHEN THERE HAVE BEEN

18

INFRINGEMENT LAWSUITS OVER PUBLIC PERFORMANCES OF THE SONG

19

"HAPPY BIRTHDAY TO YOU" WITHOUT THE PERMISSION OF THE

20

SO-CALLED OWNER, IN EACH AND EVERY ONE OF THOSE INSTANCES THE

21

ONLY COPYRIGHT THAT WAS EVER ASSERTED WAS THE 1893 COPYRIGHT

22

TO A PREDECESSOR SONG "GOOD MORNING TO ALL."

23

THOSE CASES WERE -- I'M SORRY, FOUR OF THOSE FIVE CASES WERE

24

COMMENCED AFTER THE OWNER PURPORTEDLY FILED A COPYRIGHT TO

25

"HAPPY BIRTHDAY TO YOU."

ALL FIVE OF

39
1

AND IN ALL FOUR OF THOSE CASES FILED AFTER THE

2

COPYRIGHT WAS FILED THEY DID NOT RELY ON THE COPYRIGHT TO

3

"HAPPY BIRTHDAY TO YOU" AS ONE MIGHT SUSPECT, BUT THEY

4

RELIED ON THE COPYRIGHT TO A -- A THEN 60-YEAR-OLD SONG,

5

"GOOD MORNING TO ALL."

6

INFORMATIVE.

7

THERE HAS NEVER BEEN AN INSTANCE WHEN ANYONE WAS EVER GOING

8

TO SUE UNDER THIS COPYRIGHT.

9

ONCE EVER HAS ANYONE EVER SUED ANYONE FOR INFRINGING THE

I THINK THAT'S INCREDIBLY

AND I THINK IT SHOULD EXPLAIN TO THE COURT THAT

IT HASN'T HAPPENED EVER.

NOT

10

COPYRIGHT TO THE SONG "HAPPY BIRTHDAY TO YOU," WHICH AS YOUR

11

HONOR KNOWS IS THE SUBJECT OF THE COUDERT LETTERS.

12

SO, I THINK TO SURMISE AS THE DEFENDANTS REALLY

13

HAVE TO -- I THINK TO SURMISE THAT THERE WAS SOME RISK THAT

14

THERE MIGHT BE SOME DAY SOME LITIGATION THAT ASCAP MIGHT BE

15

ASKED TO BRING ON BEHALF OF SUMMY-BIRCHARD IN 1979 REALLY

16

STRETCHES THE TRUTH.

17

ARE STRETCHING THE TRUTH.

18

WE KNOW THE FACTS TO BE.

19

THE COURT:

20

MR. RIFKIN:

AND I DON'T MEAN THAT THE DEFENDANTS
WHAT I MEAN IS IT STRETCHES WHAT

OKAY.
I'M NOT SUGGESTING THAT THEY'RE

21

DISTORTING THE FACTS AT ALL.

FAR BE IT FROM ME TO SAY THAT.

22

WHAT I AM SAYING, THOUGH, IS THEY ARE ASKING YOU TO MAKE AN

23

ENORMOUS LEAP FROM WHAT WE ALL KNOW THE REAL HARD FACTS ARE

24

TO CONCLUDE FROM A COVER LETTER THAT DOESN'T ASK FOR LEGAL

25

ADVICE, DOESN'T SOLICIT LEGAL ADVICE, ISN'T IN RESPONSE TO A

40
1

COMMUNICATION REQUESTING INFORMATION FOR THE PROVISION OF

2

LEGAL ADVICE, ISN'T MET WITH LEGAL ADVICE, DOESN'T RESULT IN

3

ANY LEGAL ACTION OR ANY LEGAL ADVICE BEING TAKEN.

4

THAT'S PRETTY POWERFUL EVIDENCE THAT THERE REALLY WASN'T MUCH

5

OF A RISK HERE.

6

I THINK

BUT IN ADDITION TO THAT, EVEN IF WE WERE GOING TO

7

PUT ALL THOSE FACTS ASIDE, WE HAVE A CASE LIKE THE TERRA NOVA

8

CASE THAT WE DISCUSSED IN OUR BRIEF WHERE THE COURT SAYS IN

9

THE BANK OF AMERICA VERSUS TERRA NOVA CASE IT'S NOT ENOUGH

10

THAT YOU'RE TRYING TO STRUCTURE A COMMERCIAL RELATIONSHIP IN

11

A WAY THAT AVOIDS SOME FUTURE LITIGATION.

12

MIGHT SAY HERE THAT ASCAP HAD AN INTEREST IN KNOWING THAT IF

13

ASCAP WAS COLLECTING FEES ON THE COPYRIGHT TO "HAPPY

14

BIRTHDAY," ASCAP MIGHT HAVE AN INTEREST IN THAT.

15

AND MAYBE YOU

BUT THE MERE FACT THAT THE PARTIES ARE TRYING TO

16

STRUCTURE A BUSINESS RELATIONSHIP IN A, QUOTE, LEGAL WAY IS

17

NOT THE KIND OF LEGAL INTEREST THAT WE'RE TALKING ABOUT WHEN

18

WE LOOK AT THIS QUESTION OF THE COMMON INTEREST.

19

CITED THAT CASE.

20

IT’S THE BANK OF AMERICA VERSUS TERRA NOVA FROM THE SOUTHERN

21

DISTRICT OF NEW YORK IN 2002.

22

AND WE

WE DISCUSSED IT AT LENGTH IN OUR BRIEF.

I THINK THE ANSWER IS REALLY LOOK AT WHAT -- LOOK

23

AT WHAT ASCAP HAS SAID OVER THE YEARS.

MR. REIMER SAYS THEY

24

DON'T HAVE ANY INTEREST IN THE COPYRIGHT.

25

THEY DON'T HAVE ANY INTEREST IN THE ROYALTIES.

MR. REIMER SAYS
THEY DO

41
1

COLLECT A FEE FOR THE SERVICE THEY PROVIDE, BUT IT'S -- IT'S

2

NOT AN INTEREST IN EITHER OF THE PROPERTY -- THAT IS, THE

3

COPYRIGHTS OR THE ROYALTIES DERIVED FROM THEM.

4

FEE FOR THE SERVICES THEY RENDER.

5

COUPLE OF CASES.

6

IT'S JUST A

WHEN -- AND WE'VE CITED A

WE CITE -- I CALL IT THE SPRINGSTEIN CASE BECAUSE I

7

CAN'T REMEMBER THE PERFORMER -- OCASEK.

8

FAMOUS THAN I'M GIVING HIM CREDIT FOR.

9

ONE OF THE PLAINTIFFS IN THAT CASE.

HE MAY BE MORE
BUT SPRINGSTEIN WAS

THEY SUED A BAR OWNER

10

FOR PERFORMING THEIR RIGHTS.

11

ASCAP IN THE LITIGATION.

12

THEY MOVED TO HAVE THE THIRD-PARTY COMPLAINT DISMISSED.

13

AND THE BAR OWNER TRIED TO JOIN

AND ASCAP MOVED TO BE DISMISSED.

AND THEIR ARGUMENT THERE WAS WE DON'T HAVE ANY

14

INTEREST IN THESE COPYRIGHTS.

15

THIS LITIGATION.

16

LITIGATION.

17

AGAINST US, A CLAIM AGAINST US.

18

AND, SO, THAT'S WHAT THE COURT DID.

19

ON ASCAP'S MOTION.

20

WE DON'T WANT TO BE A PARTY TO

WE DON'T NEED TO BE A PARTY TO THIS

YOU SHOULDN'T JOIN US.

YOU DON'T HAVE A CLAIM

WE ARE STRANGERS TO THIS.
THE COURT LET ASCAP OUT

AND I THINK THAT THOSE CASES -- THERE WAS ANOTHER

21

CASE, THE DOORS CASE -- ALMOST EXACTLY THE SAME FACTS, ONE

22

DECIDED IN 1987 AND THE OTHER DECIDED IN 1992.

23
24
25

THE COURT:

ALL RIGHT.

WELL, DON'T SHORT FORM

THEM.
THE SPRINGSTEIN CASE WAS WHICH ONE?

42
1

MR. RIFKIN:

I'M SORRY.

2

IS OCASEK, O-C-A-S-E-K.

3

IN 1987.

4
5

THE COURT:

7

THE COURT:

8

MR. RIFKIN:

YOUR HONOR, IT'S IN THE REPLY.
AHH.
OKAY.

THAT WAS RECENTLY FILED.

OBVIOUSLY, YOU PROBABLY HAVEN'T HAD A CHANCE TO READ THE
SUPPLEMENTAL BRIEF THAT WE FILED --

11

THE COURT:

12

MR. RIFKIN:

13

THE COURT:

14

WHERE IS THAT -- WHERE IS THAT CITED IN

YOUR BRIEF?
MR. RIFKIN:

10

IT'S THE WYOMING CASE THAT'S DECIDED

AND IT WAS A -- IT WAS AN ACTION --

6

9

THE SPRINGSTEIN CASE IS --

OH, I DID.
-- ON THE 22ND.
I DID.

I DID.

I DID.

I READ

EVERYTHING.

15

MR. RIFKIN:

UH-HUM.

16

IT'S -- IT APPEARS ON PAGE 9 OF OUR BRIEF, YOUR

17

HONOR, OF OUR SUPPLEMENTAL BRIEF.

18

HEGGLUND.

19

THE COURT:

20

MR. RIFKIN:

21

THE COURT:

22

MR. RIFKIN:

IT'S OCASEK VERSUS

YES.
HEGGLUND WAS A BAR OWNER.
GOT IT.

AND --

GOT IT.

-- WHAT THE COURT SAID --

23

INTERESTINGLY, THERE WAS TWO THINGS.

IT SAYS, FIRST OF ALL,

24

ASCAP IS NOT -- IN THE STRICTEST SENSE, IT IS NOT A LICENSING

25

AGENT OF ANY OF THE MEMBERS BECAUSE -- AND I THOUGHT THIS WAS

43
1

VERY INTERESTING -- BECAUSE THE LICENSES THAT ASCAP ISSUES

2

ARE LICENSES IN ASCAP'S OWN NAME TO THE USERS OF THE MUSIC.

3

SO, IN THIS CASE IT WAS A BAR.

4

STATION.

5

WHATEVER.

6

BUT IT COULD BE A RADIO

IT COULD BE A HOTEL LOBBY.

IT COULD BE AN AIRPORT,

SO, THE COURT SAYS IT'S NOT REALLY AN AGENT BECAUSE

7

IT DOESN'T ISSUE LICENSES IN THE NAME OF THE PRINCIPAL, THAT

8

IS, THE OWNERS OF THE MUSIC.

9

AGENT, IT STILL HAS NO INTEREST IN THE COPYRIGHTS OR THE

10

AND IT SAYS EVEN IF IT WAS AN

VALIDITY OF THE COPYRIGHTS.

11

AGAIN, MR. REIMER TESTIFIED ON THE 22ND OF JULY.

12

THE COURT:

13

MR. RIFKIN:

UH-HUM.
I ASKED HIM IF ASCAP HAS EVER BEEN

14

INVOLVED IN ANY LITIGATION REGARDING THE VALIDITY OF ANY

15

COPYRIGHT.

16

COURSE NOT.

17

THAT'S FOR THE -- THAT'S FOR THE MEMBERS TO WORRY ABOUT.

18

AND HE LOOKED AT ME.
WHY WOULD WE BE.

AND HE SAID, WELL, NO, OF

WE HAVE NO INTEREST IN THAT.

SO, WHEN WE HAVE ALL OF THE RELEVANT FACTS I THINK

19

IN THE BASKET IN FRONT OF US, AND WE LOOK AND WE SAY, WELL,

20

WHAT IS THERE ABOUT THIS LETTER FROM MRS. SENGSTACK THAT

21

MAKES US THINK THAT SHE WAS REQUESTING LEGAL ADVICE OR

22

THOUGHT THAT BERNIE CORMAN WAS HER LAWYER.

23

AND WE LOOK AT SOME OF THE FACTORS THE COURTS HAVE

24

CONSIDERED RELEVANT.

IT JUST -- THERE'S NOT ENOUGH HERE FOR

25

THE DEFENDANTS TO MEET THEIR BURDEN IN LIGHT OF WHAT ARE

44
1

REALLY OVERWHELMING HISTORICAL FACTS THAT ASCAP HASN'T HAD

2

ANYTHING TO DO WITH THE "HAPPY BIRTHDAY" COPYRIGHT.

3

THE FAR MORE PLAUSIBLE CONCLUSION FROM THIS IS THAT MRS.

4

SENGSTACK HAD A CASUAL CONVERSATION WITH BERNIE CORMAN AND

5

MENTIONED THAT SHE HAD THIS ANALYSIS DONE.

6
7

AS YOUR HONOR KNOWS, THE "HAPPY BIRTHDAY" COPYRIGHT
HAS BEEN SOMETHING OF A DISPUTE IN THE MUSIC BUSINESS --

8
9

I THINK

THE COURT:
BETTER WORD THAN THAT.

10

MR. RIFKIN:

11

YOUR HONOR.

12

WELL, I THOUGHT YOU WERE GOING TO USE A
OKAY.
NO.

I'VE REFRAINED FROM DOING SO,

BUT YOU CAN IMAGINE A MORE COLORFUL WORD FOR

DISPUTE.

13

THE COURT:

HAVE --

14

MR. RIFKIN:

15

THE COURT:

16

MR. RIFKIN:

17

AND I THINK IT'S FAR MORE PLAUSIBLE THAT MRS.

IT'S BEEN SOMETHING OF A DISPUTE -HAVE AT IT.
-- IN THE MUSIC BUSINESS FOR DECADES.

18

SENGSTACK SIMPLY SENT IT TO MR. CORMAN AS A COURTESY.

19

THERE'S NOTHING -- AND, AGAIN, THIS IS -- AS YOUR HONOR SAID

20

AT THE VERY BEGINNING, THIS IS THE DEFENDANT'S BURDEN TO

21

CONVINCE THE COURT THAT SUMMY-BIRCHARD REGARDED ASCAP AS ITS

22

LAWYER OR WAS COMMUNICATING INVOLVING A COMMON LEGAL

23

ENTERPRISE.

24
25

AND WHEN YOU LOOK AT THE TOTALITY OF THE FACTS THAT
WE REALLY KNOW EXISTED, AND YOU COMPARE IT TO THE PAUCITY OF

45
1

EVIDENCE THAT SUGGESTS THE CONTRARY -- UNLIKE ALL THE OTHER

2

CASES WHERE -- AND I AGREE THAT THEY'RE MORE TEMPORALLY

3

RELATED TO THE TIME IN QUESTION -- WHERE THERE ARE AFFIDAVITS

4

OR DECLARATIONS OR EVEN TESTIMONY FROM PARTICIPANTS IN THE

5

MEETINGS WHO SAY, YES, ALL THE LAWYERS WERE THERE; YES, WE

6

TALKED WITH ONE ANOTHER; YES, THERE WERE MANY CLIENTS THERE

7

FROM DIFFERENT COMPANIES.

8
9

THE CIRCUMSTANCES OBVIOUSLY SUGGEST SOME EITHER
ATTORNEY-CLIENT RELATIONSHIP OR SOME EXPECTATION THAT THERE

10

WAS THIS COMMON LEGAL ENTERPRISE THAT THE PARTIES SHARED EVEN

11

THOUGH THEY'RE STRANGERS TO ONE ANOTHER OTHERWISE.

12

BUT -- BUT THAT JUST DOESN'T EXIST HERE GIVEN THE

13

RELATIONSHIP THAT ASCAP HAS DESCRIBED FOR ITSELF.

14

FOR EXAMPLE, WHEN ASCAP IN THE -- ONE OF THE RATE PROCEEDINGS

15

IN THE SECOND CIRCUIT IN THE PANDORA MATTER, WHEN ASCAP SAYS

16

THAT THE PRODUCERS -- THAT ASCAP HAS SOME INTEREST IN THE

17

SONGS, THE PRODUCERS JUMP IN.

18

COURT.

19

PRODUCERS, NOT ASCAP, ARE THE COPYRIGHT OWNERS OF THE SONGS

20

IN QUESTION, POSSESSED OF EXCLUSIVE RIGHTS UNDER SECTION 106

21

OF THE COPYRIGHT ACT WHICH INCLUDE THE EXCLUSIVE RIGHT TO

22

PUBLICLY PERFORM THE SONGS OR TO AUTHORIZE OTHERS TO DO SO.

23
24
25

AND, SO,

AND THEY WRITE A LETTER TO THE

AND THEY SAY, TO BE CLEAR, OUR CLIENTS, THE MUSIC

THIS WAS -- AND I'M NOW QUOTING FROM THE IN RE
PANDORA MEDIA CASE.
THE COURT:

THIS IS THE -AND YOU HAVE THE SAME STATEMENT IN HIS

46
1

DECLARATION IN --

2

MR. RIFKIN:

3

THE COURT:

4

MR. RIFKIN:

5

THE EXACT SAME STATEMENT -YES.
-- IN THE DECLARATION.

AND, FRANKLY,

IN HIS DEPOSITION TESTIMONY ON JULY 22ND.

6

YOU KNOW, I -- WE ARE STRUGGLING BECAUSE WE ARE

7

LOOKING BACK 40-SOME-ODD YEARS.

8

OUT WHAT MRS. SENGSTACK THOUGHT WHEN SHE DID WHAT SHE DID.

9

AND I THINK HERE --

10
11

THE COURT:

MR. RIFKIN:

I -- NOT THAT I'M AWARE OF, YOUR

HONOR.

14

THE COURT:

15

MR. RIFKIN:

16

AND I PRESUME SHE'S NOT IN A POSITION

TO TESTIFY.

12
13

AND WE'RE TRYING TO FIGURE

OKAY.

THAT'S FINE.

I DON'T BELIEVE THAT IS THE CASE AT

ALL.

17

THE COURT:

18

MR. RIFKIN:

OKAY.
WHAT -- WHEN WE LOOK AT WHAT SHE DID,

19

WHICH IS TO SEND A LETTER THREE YEARS LATER THAT WAS DONE BY

20

HER OWN COUNSEL TO AN ORGANIZATION THAT HAS AT BEST A

21

CONTRACTUAL RELATIONSHIP WITH ITS MEMBERS, AND WE LOOK AT

22

WHAT HAPPENED IN THE 40 YEARS BEFORE THAT AND THE 40 YEARS

23

AFTER THAT, AND WE LOOK AT WHAT ASCAP SAYS IS THE LIMITED

24

ROLE IT HAS AND WHETHER IT HAS ANY INTEREST IN THE

25

COPYRIGHTS, WHETHER IT HAS PARTICIPATED IN ANY OTHER --

47
1

FORGET "HAPPY BIRTHDAY" -- WHETHER IT HAS PARTICIPATED IN ANY

2

OTHER LITIGATION INVOLVING THE VALIDITY OF ANY OTHER

3

COPYRIGHTS.

4

I THINK IT'S A STRETCH TO SAY THAT -- THAT ASCAP

5

AND SUMMY-BIRCHARD SHARED A COMMON LEGAL INTEREST OR WERE

6

INVOLVED IN A COMMON LEGAL ENTERPRISE CONCERNING "HAPPY

7

BIRTHDAY TO YOU."

8
9

WHAT THEY WERE WERE BUSINESS PARTNERS.

AND YOUR HONOR IS CORRECT.

WE'VE CITED A NUMBER OF

CASES, INCLUDING THE NIDEC CASE, THAT SAYS A BUSINESS

10

INTEREST ISN'T SUFFICIENT.

11

LEGAL MATTER.

12

IT HAS TO BE AN INTEREST IN A

AND THE MERE POSSIBILITY -- THE REMOTE POSSIBILITY

13

THAT SOMEHOW HISTORY WOULD CHANGE ITSELF AFTER 40 YEARS.

14

ALL OF A SUDDEN ASCAP WOULD FOR SOME STRANGE REASON FIND

15

ITSELF IN LITIGATION INVOLVING THE VALIDITY OF THE COPYRIGHT

16

TO "HAPPY BIRTHDAY TO YOU" WHEN IT HAS NEVER LITIGATED THE

17

VALIDITY OF A COPYRIGHT TO ANY OTHER INDIVIDUAL SONG EVER --

18

NOT BEFORE.

19

GIVEN THE FACT THAT THE BURDEN IS ON THE DEFENDANTS.

20

NOT SINCE.

AND

I THINK THAT'S JUST -- GOES TOO FAR

IF THE BURDEN WERE OURS, WE WOULD HAVE A MUCH

21

DIFFERENT ARGUMENT AND FRANKLY A MUCH MORE DIFFICULT

22

ARGUMENT.

23

IN NOW.

24
25

WE WOULD BE IN A POSITION THAT THE DEFENDANTS ARE

BUT SINCE THE BURDEN IS ON THEM, THEY NEED TO COME
FORWARD WITH SOMETHING MORE THAN JUST SUPPOSITION OR A MERE

48
1

POSSIBILITY, WHICH IS REALLY ALL THEY CAN OFFER THAT FRANKLY

2

FLIES IN THE FACE OF WHAT WE ALL KNOW TO BE THE HISTORICAL

3

FACTS.

4

THE COURT:

OKAY.

5

MR. RIFKIN:

SO, FOR THOSE REASONS, I THINK IN

6

LIGHT OF EVERYTHING YOUR HONOR SAID, I WOULD URGE YOU TO

7

CONSIDER ALL THOSE FACTS IN THE CONTEXT OF THE LEGAL

8

FRAMEWORK THAT I THINK YOUR HONOR DOES UNDERSTAND.

9

MRS. SENGSTACK HAD TO THINK THAT MR. CORMAN WAS HER

10

LAWYER, EVEN THOUGH THERE'S NO INDICATION THAT HE WAS EVER

11

HER LAWYER BEFORE.

12

LEGAL ADVICE FROM HIM.

13

LEGAL ADVICE TO HER -- AND BY HER I MEAN OBVIOUSLY

14

SUMMY-BIRCHARD.

THERE'S NO INDICATION THAT SHE SOUGHT

15

THE COURT:

16

MR. RIFKIN:

17

THERE'S NO INDICATION HE PROVIDED

I'M WITH YOU.

I'M WITH YOU.

SUMMY-BIRCHARD HAD ITS OWN COUNSEL,

COUDERT BROTHERS.

18

THE COURT:

19

MR. RIFKIN:

YEP.
WHICH OVER THE COURSE OF TWO YEARS

20

RENDERED EXHAUSTIVE LEGAL ADVICE ON THE ISSUE.

21

THERE'S NOTHING IN THE RECORD THAT SAYS THAT MRS. SENGSTACK

22

TOLD MR. CORMAN KEEP THIS CONFIDENTIAL.

23

PRODUCED THE DOCUMENT --

24
25

THE COURT:

THERE'S NO --

IN 2014 MR. REIMER

SO, DO YOU -- DO YOU HAVE -- OKAY.

SO,

YOU MAKE A VERY WELL-ARTICULATED EXPLANATION AS TO WHY THOSE

49
1

THINGS DID NOT OCCUR.

2

MR. RIFKIN:

3

THE COURT:

RIGHT.
DO YOU WANT TO GIVE ME SOMETHING TO

4

HANG ON TO AS TO WHY SHE DID PROVIDE INFORMATION THAT SHE

5

PAID A HECK OF A LOT OF MONEY FOR FROM COUDERT, WHY SHE WOULD

6

HAVE BEEN IN THE POSITION TO GIVE THIS TO ASCAP.

7

MR. RIFKIN:

WHY?

I THINK THEY HAPPENED TO BUMP INTO

8

EACH OTHER.

AND I THINK THEY PROBABLY TALKED ABOUT THE SONG

9

BECAUSE PEOPLE IN THE MUSIC BUSINESS TALK ABOUT THE SONG A

10

LOT.

IT IS -- AS I'VE TRIED TO BE KIND TO SAY IT IS A MATTER

11

OF SOME NOTORIETY --

12

THE COURT:

13

(LAUGHTER.)

14

MR. RIFKIN:

I'VE SUNG IT MYSELF.

WITHIN THE MUSIC BUSINESS, IT IS --

15

YOUR HONOR, YOU KNOW, NOT A MONTH GOES BY THAT I DON'T HEAR

16

SOME HUMOROUS REFERENCE TO IT.

17

IT WAS NOT A FEW WEEKS AGO ON THE COLBERT SHOW WHEN HE SANG

18

"HAPPY BIRTHDAY" TO HAPPY BIRTHDAY ON HAPPY BIRTHDAY'S HAPPY

19

BIRTHDAY.

20
21

I THINK THE LAST TIME I SAW

AND HE COULDN'T SING THE SONG.
IT IS -- IT IS TRULY A MATTER OF SOME ATTENTION IN

THE INDUSTRY.

22

THE COURT:

23

MR. RIFKIN:

24

THE COURT:

25

MR. RIFKIN:

OKAY.
I THINK IT IS -OKAY.

SO --

IT IS -- IT WAS SUMMY'S BIGGEST

50
1

PROPERTY BY FAR.

IF CORMAN HAPPENED TO BUMP INTO ARLENE

2

SENGSTACK ANYWHERE -- AND SINCE THEY WERE BOTH IN THE MUSIC

3

BUSINESS, IT'S LIKELY THAT THEY DID -- IT'S ALSO LIKELY THAT

4

THE TOPIC OF "HAPPY BIRTHDAY" CAME UP.

5

JOKE ABOUT TWO FLIES.

6

TOGETHER YOU KNOW WHAT THEY'RE TALKING ABOUT.

7

FARM JOKE, BUT YOU'LL FORGIVE ME.

8

SO, I SPEND SOME TIMES ON HORSE FARMS.

9

MR. RIFKIN:

IF YOU SEE TWO FLIES FLYING AROUND
MAYBE THAT'S A

MY WIFE IS A HORSE RIDER.

(LAUGHTER.)

10

IT'S LIKE THE OLD

11
12
13

I THINK IF THEY BUMPED INTO ONE

ANOTHER -THE COURT:
WAS GRATUITOUS.

OKAY.

I MEAN, YOU KNOW, YOU SAID IT

I COULDN'T --

14

MR. RIFKIN:

15

THE COURT:

I THINK IT WAS GRATUITOUS.
I COULDN'T PLAUSIBLY IMAGINE HOW

16

SOMEONE WOULD GRATUITOUSLY SAY, HEY, WOULD YOU LIKE TO SEE

17

WHAT MY LAWYER SAYS ABOUT THIS SONG.

18

MR. RIFKIN:

19

THE COURT:

20

MR. RIFKIN:

21

THE COURT:

22

MR. RIFKIN:

23

THE COURT:

24

MR. RIFKIN:

25

AND YOU'VE GIVEN ME --

I -LOOK, IT'S SPECULATION.

I GOT IT.

IT DIDN'T COME OUT OF THE BLUE.
OKAY.
I THINK -OKAY.
I THINK THERE'S A CONTEXT TO IT.

I

THINK THE CONTEXT IS -- AGAIN, AS I SAY, ALL THE HISTORICAL

51
1
2

SIGNIFICANCE.

AND LET'S NOT FORGET WHAT WE'RE TALKING ABOUT.

WE'RE TALKING ABOUT A UNIQUE SONG.

I MEAN, IT IS "HAPPY

3

BIRTHDAY."

AND IT WAS SUMMY'S BIGGEST PROPERTY.

4

IT'S ENTIRELY LIKELY THAT CORMAN SAID SOMETHING TO SENGSTACK

5

ABOUT IT.

6

LETTERS WE GOT FROM -- FROM OUR LAWYER THREE YEARS AGO.

AND SENGSTACK SAYS, YOU KNOW, HERE'S A COUPLE OF

7

THE COURT:

8

MR. RIFKIN:

9

AND I THINK

GOT IT.
THERE'S NOTHING IN THE RECORD TO

SUBSTANTIATE ANYTHING ELSE OTHER THAN THAT.

AND I THINK

10

THAT'S FAR MORE CONSISTENT WITH THE HISTORICAL FACTS THAN ANY

11

CONTRARY SUPPOSITION.

12

THE COURT:

AND THAT IS ORAL ADVOCACY.

I GOT IT.

13

MR. RIFKIN:

14

THE COURT:

15

MR. RIFKIN:

16

THE COURT:

17

MR. RIFKIN:

18

THE COURT:

19

MS. LEMOINE:

20

MS. LEMOINE:

21

SO, YOUR HONOR, I WANT TO JUST START BY ADDRESSING

OKAY.
WELL DONE -THANK YOU, YOUR HONOR.
WELL DONE.

THANK YOU.

THANK YOU.
OKAY.

YES, YOUR HONOR.

THANK YOU.

22

THE POINT ABOUT THAT MR. RIFKIN MADE, THE POINT ABOUT THIS

23

NOTION THAT ASCAP HAS NEVER BEEN INVOLVED IN THE VALIDITY OF

24

THE COPYRIGHT HERE.

25

THE COURT:

MICROPHONE DOWN --

52
1

MS. LEMOINE:

OF COURSE.

2

THE COURT: -- SO WE CAN HEAR WHAT YOU SAY.

3

MS. LEMOINE:

AS YOUR HONOR POINTED OUT, ASCAP IS

4

CHARGED WITH ENFORCING OUR PUBLIC PERFORMANCE RIGHTS, SUMMY'S

5

PUBLIC PERFORMANCE RIGHTS.

6

FILED THOUSANDS OF INFRINGEMENT ACTIONS.

7

COULDN'T SAY WHETHER ANY INVOLVED "HAPPY BIRTHDAY," BUT HE

8

SAID THEY FILED THOUSANDS OF INFRINGEMENT ACTIONS.

9
10
11
12
13

IT HAS, AS MR. REIMER TESTIFIED,
ALL RIGHT.

HE

AS YOUR HONOR POINTED OUT, AN ESSENTIAL COMPONENT
-THE COURT:

AND THAT'S -- AND THAT'S DISTINCT FROM

ACTIONS REGARDING THE VALIDITY OF A COPYRIGHT.
MS. LEMOINE:

WELL, AS YOUR HONOR POINTED OUT, IN

14

ORDER TO FILE THOSE ACTIONS YOU'D HAVE TO OWN THE COPYRIGHT.

15

AND YOU'D HAVE TO HAVE A VALID COPYRIGHT IN ORDER TO OWN IT.

16

SO, WE SAY IT'S SUBSUMED WITHIN THE QUESTION OF OWNERSHIP.

17

THE VALIDITY -- WHEN HE TESTIFIED AS TO THE

18

VALIDITY OF THE COPYRIGHT, I THINK WHAT HE HAD IN MIND WAS AN

19

ACTION LIKE THIS ONE IN WHICH PLAINTIFFS ARE SEEKING A

20

DECLARATORY RELIEF CLAIM ABOUT WHETHER IT'S VALID OR NOT.

21

THINK HE HAD THIS ONE IN MIND, BUT I DON'T KNOW.

22

TO ASK MR. REIMER.

23

WE'D HAVE

BUT HE DID SAY THAT THEY MAKE -- I MEAN, WE

24

UNDERSTAND, AND YOUR HONOR ARTICULATED IT VERY CLEARLY, THE

25

NATURE OF THE RELATIONSHIP BETWEEN ASCAP AND SUMMY.

ASCAP

I

53
1

EXISTS TO ENFORCE PUBLIC PERFORMANCE RIGHTS.

2

STATES SUPREME COURT SAID THAT.

3

1914.

4
5

THE COURT:

7

MS. LEMOINE:

MR. KAPLAN:

9

I CAN SUBMIT THAT.

MS. LEMOINE:

THE COURT:

12

YES.
MR. KAPLAN WILL HELP ME AND TELL ME

MS. LEMOINE:

YES, HE WILL.
WE DID SUBMIT THAT, YOUR HONOR, FROM

1975.

14

MR. KAPLAN:

15

MS. LEMOINE:

16

I THINK THAT WE

WHAT EXHIBIT IT IS.

11

13

I KNOW I HAVE THE WARNER AGREEMENT.

SUBMITTED IT.

8

10

THAT'S HOW IT WAS FORMED IN

DO I HAVE A COPY OF THE CONTRACT

BETWEEN SUMMY AND ASCAP?

6

THE UNITED

EXHIBIT C OF THE KLAUS DECLARATION.
IT'S EXHIBIT C TO MR. KLAUS'S

DECLARATION, YOUR HONOR.

17

THE COURT:

18

(PAUSE IN PROCEEDINGS.)

19

THE COURT:

20

STAND BY.

OH, OKAY.

I HAD SPENT TIME WITH

EXHIBIT D, WHICH WAS THE WARNER.

21

C IS THE?

22

MS. LEMOINE:

23

THE COURT:

24

MS. LEMOINE:

25

THE COURT:

THEY'RE THE SAME, YOUR HONOR.
OH, I SEE.

OKAY.

SO -THERE ARE JUST SO MANY COPIES OF

54
1

DEPOSITION NOTICES AND LAWYER SNITAGRAMS THAT FRANKLY I WENT

2

BUZZING PAST, BUT --

3

BY THE WAY, JUST TO BE VERY CLEAR, THE ADDITIONAL

4

CASES THAT YOU REFERENCE, WHICH I'M FAMILIAR WITH, AND I WANT

5

TO GO BACK AND TAKE A LOOK AT AS WELL AS THE FULL DEPOSITION

6

THAT I MAY HAVE NOT TAKEN A LOOK AT.

7

AND I ASSURE YOU I'LL TAKE IT UNDER CONSIDERATION BEFORE I

8

MAKE A DECISION.

9
10

MS. LEMOINE:

I WILL SEE ALL OF IT.

WELL, LET ME JUST -- A LITTLE BIT

ABOUT THOSE TWO CASES, YOUR HONOR, SINCE YOU BROUGHT THEM UP.

11

I MEAN, IN THOSE CASES, WHICH ARE WITHIN THE

12

SOUTHERN DISTRICT OF NEW YORK, AS YOUR HONOR RECOGNIZED, IS A

13

COURT THAT'S VERY FAMILIAR WITH ASCAP.

14

WHETHER THE DEFENDANT BAR OWNER COULD IMPLEAD ASCAP AS A

15

NECESSARY PARTY.

IT WAS NOT ABOUT WHETHER ASCAP WAS A

16

LICENSING AGENT.

IT WAS ABOUT WHETHER ASCAP WAS A NECESSARY

17

PARTY.

18

SPRINGSTEIN; THE OTHER IS OCASEK, DOORS MUSIC, I THINK.

19

I THINK THAT'S THE -- SPRINGSTEIN OCASEK IS THE CASE THAT MR.

20

RIFKIN CITED.

21

THE QUESTION WAS

BOTH OF THOSE CASES WHICH BOTH INVOLVED -- ONE IS

THE COURT:

NO.

WHICH IS CONFUSING BECAUSE RICK OCASEK

22

WAS THE LEAD SINGER FOR THE CARS.

23

MS. LEMOINE:

24
25

REALLY EMBARRASSING.
SO --

YOU'RE RIGHT.
WE NEED TO --

YOU'RE RIGHT.

THAT'S

55
1

THE COURT:

2

MS. LEMOINE:

3

THE COURT:

4

MS. LEMOINE:

5

THE COURT:

6

MS. LEMOINE:

7

THE COURT:

IS HE A CLIENT?
OF MINE?
YES.
NO.
OH, OKAY.
SO -ALL RIGHT.

SO, I MEAN -- SO, YOU'RE

8

GOING TO DISTINGUISH THESE CASES BECAUSE THEY DON'T DEAL WITH

9

THE EXISTENCE OF --

10

MS. LEMOINE:

11

THE COURT:

12

MS. LEMOINE:

NO.
-- ATTORNEY-CLIENT RELATIONSHIP.
THEY DO NOT.

THEY DEAL WITH THE --

13

SORT OF A QUESTION OF FEDERAL CIVIL PROCEDURE, WHETHER

14

THEY'RE A NECESSARY PARTY AND HAVE TO BE INVOLVED IN ANY

15

INFRINGEMENT ACTION.

16

THE COURT:

17

MS. LEMOINE:

OKAY.
I WANT TO TALK BRIEFLY ABOUT -- YOU

18

KNOW, MR. RIFKIN SAID A FEW TIMES THAT IT'S OUR BURDEN.

19

THAT'S TRUE.

20

EXACTLY RIGHT WHEN YOU LOOK AT WHAT IS THE MORE PROBABLE

21

CONCLUSION TO DRAW BASED ON THE PARTIES' RELATIONSHIP.

22

THAT'S FRANKLY THE STANDARD.

23

THAT MS. SENGSTACK JUST BUMPED INTO MR. CORMAN AND THOUGHT,

24

HEY, LET ME SEND YOU THIS OR THAT SHE SENT IT GRATUITOUSLY.

25

OR IS IT MORE LIKELY THAT BECAUSE OF THEIR RELATIONSHIP -- IS

IT'S OUR BURDEN.

AND

BUT I THINK YOUR HONOR HAS IT

AND

YOU KNOW, IS IT MORE LIKELY

56
1

THE INFERENCE THAT YOUR HONOR HAS DRAWN MORE CONSISTENT WITH

2

WHAT WE UNDERSTAND ABOUT THEIR RELATIONSHIP, WITH WHAT THE --

3

THE FACT THAT HE IS THE GENERAL COUNSEL OF ASCAP, THE FACT

4

THAT SHE SAYS HERE'S THE ANALYSIS --

5

THE COURT:

WAIT.

WAIT.

6

MS. LEMOINE: -- ABOUT OUR CLAIM.

7

THE COURT:

WOULDN'T THE PROPER FORMULATION BE

8

WHETHER WARNER HAS ESTABLISHED BY A PREPONDERANCE OF THE

9

EVIDENCE THAT IT'S MORE LIKELY THAN NOT --

10

MS. LEMOINE:

CORRECT.

11

THE COURT: -- THAT THAT RELATIONSHIP OCCURRED.

12

MS. LEMOINE:

13

THE COURT:

14

MS. LEMOINE:

THAT IS -- THAT IS CORRECT.
OKAY.
AND IN LIGHT OF THE RECORD EVIDENCE

15

THAT -- ABOUT THE RELATIONSHIP BETWEEN ASCAP AND SUMMY,

16

ASCAP'S RESPONSIBILITY AS THE LICENSING AGENT, ASCAP'S ROLE

17

IN INFRINGEMENT ACTIONS, IN ENFORCING, IN POLICING THE

18

COPYRIGHT, IT'S MUCH MORE PLAUSIBLE -- WE THINK THE ONLY

19

PLAUSIBLE CONCLUSION, FRANKLY, IS THAT SHE SENT THIS FOR ONE

20

OF THOSE PURPOSES, FOR SOME PURPOSE OTHER THAN JUST AN FYI.

21

AND I THINK, YOU KNOW, PLAINTIFF'S CONTENTION THAT

22

IT WAS GRATUITOUS, YOU KNOW, NOW IS JUST -- IT CAN'T BE

23

SUSTAINED.

24
25

NOW, WHETHER SHE DID THIS TO OBTAIN LEGAL ADVICE,
WHICH I THINK IS A FAIR INFERENCE, AND WHETHER SHE DID IT

57
1

BECAUSE THEY HAD A COMMON INTEREST IN THE LEGAL QUESTION,

2

WHICH I THINK THE EVIDENCE SHOWS THAT THEY DID, EITHER ARE A

3

BASIS FOR YOUR HONOR TO UPHOLD THE PRIVILEGE IN THIS

4

INSTANCE.

5

THE COURT:

AND WHAT'S -- WHAT'S THE EVIDENCE

6

SUPPORTING THE CONCLUSION THAT MS. SENGSTACK -- HEY, I

7

FINALLY GOT IT -- WAS SEEKING LEGAL ADVICE --

8

MS. LEMOINE:

9

THE COURT:

WELL, I THINK THE --- AS OPPOSED TO PROVIDING INFORMATION

10

IN ANTICIPATION OF COMMON LITIGATION.

11

TWO, IF POSSIBLE.

12
13

MS. LEMOINE:

SURE.

LET'S DISTINGUISH THE

I THINK WE LOOK AT THE

TRANSMITTAL LETTER.

14

THE COURT:

15

MS. LEMOINE:

OKAY.
EITHER -- EITHER INTERPRETATION I

16

THINK IS POSSIBLE, THAT SHE SENT IT FOR THE PURPOSE OF

17

OBTAINING HER OWN ASSOCIATION-RELATED LEGAL ADVICE.

18

HAVE SOME QUESTION FOR HIM ABOUT WHETHER ASCAP COULD LICENSE

19

THE WORK, OR DID SHE SEND IT BECAUSE ASCAP ITSELF HAD A

20

QUESTION AND ASCAP HAD A CONCERN AND ANTICIPATED FUTURE

21

CLAIMS LIKE THE ONE THAT MR. RIFKIN HAS BROUGHT HERE.

22

IS VERY POSSIBLE.

23

PLAUSIBLE WE SAY THAN THE CONTENTION THAT IT WAS JUST BECAUSE

24

THEY BUMPED INTO EACH OTHER ON THE STREET.

25

DID SHE

THAT

BOTH ARE EQUALLY PLAUSIBLE AND MORE

YOU KNOW, IF YOU LOOK AT THE TRANSMITTAL LETTER

58
1

ITSELF, FIRST YOU LOOK AT THE AGREEMENT BETWEEN SUMMY AND

2

ASCAP WHERE YOU SEE THAT THEIR ROLE IS AS FIRST IN 1(A) IS TO

3

ENFORCE --

4

THE COURT:

UH-HUM.

5

MS. LEMOINE: -- THE COPYRIGHT.

IF YOU UNDERSTAND

6

WHAT THE BASIS OF THE RELATIONSHIP IS, IF YOU LOOK AT THE

7

ARTICLES OF THE ASSOCIATION FOR ASCAP, THEIR PURPOSE IS.

8

YOU LOOK AT THE TRANSMITTAL LETTER SHE SAYS, HERE'S AN

9

ANALYSIS ABOUT OUR CLAIM, THE RIGHTS AND THE WORK AS

10

DISCUSSED.

THEY HAD A PREVIOUS CONVERSATION.

11

LOGICAL CONCLUSION IS THAT SHE DID THAT FOR ONE OF THE

12

PURPOSES THAT ASCAP SERVES AS A BUSINESS.

13

IF

GENERAL COUNSEL FOR A REASON.

14

THE COURT:

15

MS. LEMOINE:

16

THE COURT:

17

MS. LEMOINE:

18

THE ONLY REAL

SHE SENT IT TO THE

OKAY.
AND, YOUR HONOR -I GOT IT.
OKAY.

IF -- DOES YOUR HONOR HAVE ANY

FURTHER QUESTIONS FOR THE PARTIES?

19

THE COURT:

I WOULD ASK -- NOT OF YOU.

20

I WOULD ASK -- WELL, I GUESS MY QUESTION FOR THE

21

PLAINTIFFS IS YOU WERE FORMALLY ASKING THE COURT TO OVERRULE

22

THE CLAIM OF PRIVILEGE.

23

MR. RIFKIN:

24

THE COURT:

25

YOU WANTED.

AND THEN YOU WANTED SOMETHING ELSE.
WELL --

AND I WASN'T ENTIRELY SURE WHAT ELSE

59
1
2

MR. RIFKIN: -- WE DID.

ALTHOUGH, I THINK IT BECAME

MOOT.

3

THE COURT:

4

MR. RIFKIN:

OKAY.
WHAT WE HAD ASKED FOR WAS SOME

5

ADDITIONAL DISCOVERY, BUT THEN IN THE INTERIM ASCAP AGREED TO

6

ALLOW MR. -- ASCAP AGREED TO ALLOW MR. REIMER TO COME BACK

7

AND ANSWER SOME MORE QUESTIONS.

8

AGREED TO PRODUCE ANOTHER WITNESS.

9

REQUEST FOR ADDITIONAL DISCOVERY REALLY BECAME MOOT.

10

THE COURT:

12

MR. RIFKIN:

AND THE DEFENDANTS

THEY DID.

SO, OUR

I THINK THE RECORD --

11

HE DID.

13

OKAY.
-- FACTUALLY IS AS COMPLETE AS IT'S

EVER GOING TO BE.

14

THE COURT:

OKAY.

OH, NO, AND THAT CLARIFICATION

15

HELPS.

BECAUSE WE HAD A VERY HURRIED CALL A COUPLE OF WEEKS

16

AGO WHEN I WAS IN A HOTEL LOBBY.

17

MR. RIFKIN:

18

THE COURT:

AND --

I RECALL IT.
-- I DIDN'T MEAN TO BE CURT WITH YOU

19

ALL, BUT THINGS WERE GOING.

20

OKAY.

21

AND I WAS OUT OF TOWN.

SO, THAT -- THAT MAKES SENSE.

AND --

THE GIST OF THE

22

REQUESTED RELIEF IS TO DEAL WITH THE ASSERTION OF PRIVILEGE.

23

GOT IT.

24

MR. RIFKIN:

25

THE COURT:

AT THIS POINT THAT'S CORRECT.
OKAY.

60
1
2

MS. LEMOINE:

IF I COULD JUST -- ONE MORE POINT IF

I COULD MAKE, YOUR HONOR.

3

MR. RIFKIN IS MUCH TALLER THAN I AM.

4

THE COURT:

5

MS. LEMOINE:

HE IS.
MR. REIMER'S TRANSCRIPT IS ATTACHED

6

-- PORTIONS OF IT ARE ATTACHED TO EXHIBIT A TO THE

7

DECLARATION I SUBMITTED WITH OUR SUPPLEMENTAL BRIEF.

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HE TESTIFIED CONSISTENT WITH YOUR UNDERSTANDING OF
WHAT ASCAP'S ROLE IS.
HE -- I JUST WANT TO ADDRESS JUST BRIEFLY THIS

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NOTION THAT THIS LETTER HAD TO CONTAIN AN EXPLICIT REFERENCE

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TO LEGAL ADVICE AND THINK ABOUT -- YOU KNOW, THE PASSAGE OF

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TIME AND THE NATURE OF COPYRIGHT AS YOUR HONOR POINTED OUT,

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AND THAT, YOU KNOW, WHAT WE'RE TRYING TO DO HERE IS MAKE

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ASSUMPTIONS ABOUT THIS ENCOUNTER ON THE STREET.

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BUT HAVING AN EXPLICIT REQUIREMENT THAT THERE BE

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SOMETHING SAYING I AM ASKING FOR LEGAL ADVICE, OR I AM

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SENDING THIS TO YOU AND PURSUANT TO OUR COMMON INTEREST

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DOCTRINE WOULD JUST BE CONTRARY TO THE POLICY UNDERLYING THE

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COPYRIGHT ACT, WHICH GRANTS THESE COPYRIGHTS FOR A PERIOD OF

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TERMS OF SEVERAL DECADES.

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YOUR HONOR.

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THE COURT:

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MS. LEMOINE:

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MR. RIFKIN:

SO, I WOULD ALSO SUBMIT THAT TO

OKAY.
ALL RIGHT.
YOUR HONOR, THE ONLY OTHER THING I'LL

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ADD IS WHILE WE HAVE THE LETTER FROM MRS. SENGSTACK --

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THE COURT:

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YES.

MR. RIFKIN:

-- OPEN, SHE SAYS AT THE VERY BOTTOM

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WHEN SHE SENDS -- SHE REFERS TO BOTH THE LONG ANALYSIS, THE

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1976 ANALYSIS AND THEN THE SHORT --

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THE COURT:

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MR. RIFKIN: -- 1978 ANALYSIS.

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UH-HUM.
AND IN REFERRING TO

THE FOLLOW-UP LETTER SHE SAYS -THE COURT:

"IT MIGHT BE OF INTEREST."

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MR. RIFKIN: -- "IT MIGHT BE OF INTEREST."

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SHE DOESN'T SAY IT MIGHT BE HELPFUL.

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SAY IT MIGHT BE USEFUL.

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SHE DOESN'T

SHE SAYS IT MIGHT BE OF INTEREST.

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THE COURT:

YOU MIGHT BE ABLE TO MAKE USE OF IT.

YOU KNOW, THIS IS -- THIS IS -- THIS IS

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LIKE THE BEST PART OF IT.

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OUT WHAT SMART PEOPLE WERE DOING.

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HERE FOR BOTH SIDES.

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MEAN, WE COULD TALK ABOUT HOW IT'S ON THE FIRM'S LETTERHEAD

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AS OPPOSED TO A PERSONAL STATIONARY.

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SHE ADDRESSES HIM BY HIS FIRST NAME --

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MR. RIFKIN:

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THE COURT:

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IT'S SMART PEOPLE TRYING TO FIGURE
I MEAN, THERE'S THINGS

AND YOU'VE BOTH DONE A FINE JOB.

I

WE COULD TALK ABOUT HOW

BERNIE --- RATHER THAN HIS FORMAL TITLE.

YOU

KNOW, THERE'S -- THERE'S STUFF FOR BOTH HERE.
MR. RIFKIN:

THERE'S GRIST FOR BOTH MILLS.

AND YOU

ULTIMATELY HAVE TO DECIDE WHETHER THEY HAVE GROUND UP ENOUGH

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TO --

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THE COURT:

THE JOKE IS THAT'S WHY I GET THE BIG

BUCKS.

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MR. RIFKIN: -- TO --

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THE COURT:

ALL RIGHT.

HERE'S WHAT'S GOING TO

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HAPPEN.

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SIGNIFICANCE OF THIS ISSUE FOR BOTH PARTIES.

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TAKE AN ADDITIONAL LOOK AT YOUR MATERIALS, PARTICULARLY THE

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ONES THAT WERE HIGHLIGHTED HERE TODAY, WHICH IS HELPFUL IN

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I AM GOING TO CLEAR MY AFTERNOON BECAUSE OF THE
I AM GOING TO

FOCUSING ON WHAT I NEED TO DO.
I WILL TRY AND GET OUT A DECISION.

YOU MAY FEEL

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CONFIDENT THAT TO THE EXTENT THAT MY -- I'M NOT GOING TO MAKE

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UP MY FINAL MIND.

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MY TENTATIVE IS GOING TO BE, YOU CAN APPROPRIATELY REFER TO

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BOTH THE STATEMENTS YOU HEARD HERE TODAY AS WELL AS THE

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WRITTEN DECISION, WHICH IS KIND OF MY CUSTOM.

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IT WON'T BE A ONE-PAGER, BUT, YOU KNOW, I'M GOING TO MAYBE

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SHORTHAND SOME OF THE THINGS THAT I'VE SAID HERE.

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BUT IF I -- IF I -- IF I STICK WITH WHAT

IT WON'T BE --

IF THERE IS A DESIRE TO TAKE THIS TO CHIEF JUDGE

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KING ON APPEAL, NO PROBLEM WITH ME.

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BUT HE IS GOING TO DEFER

TO SOME OF THESE FACTUAL CONCLUSIONS.

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BUT BOTH SIDES WOULD BE WELL SERVED IF THERE IS

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GOING TO BE ADDITIONAL PROCEEDINGS HERE TO FOCUS ON THOSE

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ISSUES AS OPPOSED TO SOME OF THE OTHER THINGS THAT CAUSE THIS

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STACK OF PAPER TO BE SEVERAL INCHES HIGH.

BUT I WILL TRY AND

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GET THAT OUT TODAY.

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MS. LEMOINE:

COULD I GIVE YOU ONE CITE, YOUR

HONOR, BEFORE WE WALK OUT OF THE ROOM.

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THE COURT:

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HEY, WHY NOT.

MS. LEMOINE:

SO, MR. KAPLAN JUST POINTED THIS OUT

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TO ME.

IN THE DISTRICT OF THE DISTRICT OF COLUMBIA, THERE'S

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A PRESUMPTION THAT COMMUNICATIONS TO OUTSIDE COUNSEL OR THE

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GENERAL COUNSEL OF THE COMPANY ARE PRIMARILY RELATED TO LEGAL

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ADVICE.

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BOCA INVESTORING PARTNERSHIP --

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THE COURT:

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I'M SORRY.

YOU'RE CITING SOMETHING NOW

THAT YOU DIDN'T CITE IN THE TWO PREVIOUS BRIEFS?

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MS. LEMOINE:

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DIDN'T WE?

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MR. KAPLAN:

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MS. LEMOINE:

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I THINK WE DID.

NO.
OKAY.

TO SIT DOWN.

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THE COURT:

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MS. MANIFOLD:

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THE COURT:

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IF WE DIDN'T, THEN, I'M GOING

YES.

YES, YOU ARE.

THANK YOU, SIR.

UNLESS -- UNLESS YOU WANT ADDITIONAL

BRIEFING --

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MS. LEMOINE:

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THE COURT: -- AND -- YES.

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MS. LEMOINE:

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ANY OF US WANT THAT.

NO --

NO.

PLEASE GOD, NO.

I DON'T THINK

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THE COURT:

ALL RIGHT.

OR RULE 37 TO COME BACK

INTO PLAY.

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ANYTHING ELSE FOR YOU FOLKS?

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MR. RIFKIN:

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THANK YOU VERY MUCH FOR YOUR TIME, AS ALWAYS.

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THE COURT:

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THANK YOU VERY MUCH --

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MS. LEMOINE:

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THE COURT: --

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NONE, YOUR HONOR.

NOT AT ALL.

THANK YOU.
FOR A VERY HIGH-LEVEL -- HIGH-LEVEL

WORK ON THIS.

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THE CLERK:

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(PROCEEDINGS ADJOURNED AT 10:56 A.M.)

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COURT IS ADJOURNED.

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C E R T I F I C A T E

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I CERTIFY THAT THE FOREGOING IS A CORRECT

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TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE

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PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.

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/S/ DOROTHY BABYKIN

7/30/14

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______________________________

___________

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FEDERALLY CERTIFIED TRANSCRIBER

DATED

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DOROTHY BABYKIN

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