Bryan Pringle v. William Adams Jr et al

Filing 244

SUPPLEMENT to MOTION for Summary Judgment 159 , Plaintiff's Supplemental Response to Motion for Summary Judgment to Correct Misstatements Made by Defense Counsel, filed by Plaintiff Bryan Pringle. (Holley, Colin)

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1 Dean A. Dickie (appearing Pro Hac Vice) Dickie@MillerCanfield.com 2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice) Koppenhoefer@MillerCanfield.com 3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. 225 West Washington Street, Suite 2600 4 Chicago, IL 60606 Telephone: 312.460.4200 5 Facsimile: 312.460.4288 6 George L. Hampton IV (State Bar No. 144433) ghampton@hamptonholley.com 7 Colin C. Holley (State Bar No. 191999) cholley@hamptonholley.com 8 HAMPTONHOLLEY LLP 2101 East Coast Highway, Suite 260 9 Corona del Mar, California 92625 Telephone: 949.718.4550 10 Facsimile: 949.718.4580 11 Attorneys for Plaintiff BRYAN PRINGLE 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 SOUTHERN DIVISION 16 BRYAN PRINGLE, an individual, 17 18 Plaintiff, v. 19 WILLIAM ADAMS, JR.; STACY FERGUSON; ALLAN PINEDA; and 20 JAIME GOMEZ, all individually and collectively as the music group The 21 Black Eyed Peas, et al., 22 23 24 25 26 27 28 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 10-1656 JST(RZx) PLAINTIFF’S SUPPLEMENTAL RESPONSE TO MOTION FOR SUMMARY JUDGMENT TO CORRECT MISSTATEMENTS MADE BY DEFENSE COUNSEL 1 2 3 4 5 6 7 8 9 10 11 12 I. Introduction On March 5, 2012, this Court held its hearing on Defendants’ motion for summary judgment. The Court gave Defendants’ counsel the “last word” and he took that opportunity to make several misrepresentations about the record to date. The issue here, of course, is whether viewing the evidence in the light most favorable to Plaintiff and drawing all justifiable inferences in his favor, there are genuine issues of material fact. Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198, 1201 (C.D. Cal. 2010). Notwithstanding that required focus, counsel’s misstatements must not go unaddressed. II. Barbara Frederikson-Cross and David Gallant Concluded That There Was No Evidence That Plaintiff Backdated the Files Defendants’ counsel represented to the Court that Mr. Pringle’s expert 13 witnesses, Barbara Frederikson-Cross and David Gallant, concluded that the NRG 14 files “could have been backdated.” Those statements were not accurate or fair. 15 Mr. Gallant actually concluded that “based on the analysis of the data 16 provided to [him], August 22, 1999, at 12:54 pm was the last time the 17 “DISK05.NRG” file … was modified.” See Gallant Decl. at ¶ 9. Gallant also 18 referenced the fact that Defendants’ expert, Eric Laykin, admitted that after he 19 analyzed the CD-ROMs that contained the NRG files, he “had no evidence to 20 support his theory of backdating.” See Gallant Decl. at ¶ 21. 21 Defense counsel’s statement that Ms. Frederikson-Cross “concluded” that it 22 was “possible” that Plaintiff could have backdated the files was similarly 23 misleading. Ms. Frederikson-Cross said several times in her deposition that she had 24 seen “no evidence to suggest” that this was true. See Frederikson-Cross Dep. 25 Transcript, pp. 190, 191. She acknowledged that “from a purely hypothetical 26 computer science standpoint,” a “hypothetical” could be “constructed” in which that 27 was the case. Id. at 191. But she was clear that the list of assumptions (none of 28 1 1 which were supported by any evidence in this case) that would have to be in play 2 was beyond plausible. Id. at 190. 3 III. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Did Not Have to Re-Create Anything When He Registered “Take a Dive” (Dance Version) Defense counsel suggested to the Court that through some process of “trial and error,” Plaintiff “re-created” the individual components on “DISK05.NRG” when he registered the sound recording with the Copyright Office. Counsel’s statements were not accurate. There is no evidence in the record that Plaintiff had to “re-create” any of these components in order to play the sound recording or that he engaged in any process of “trial and error.” Plaintiff simply had to “re-load” the creation files from the “DISK05.NRG” into the Ensoniq ASR-10 and push the “play” button. Pringle Decl. at ¶ 169. This process did not involve any “re-creation” and the sound recording was not a “manual approximation.” Id. at ¶¶ 167-178. Plaintiff simply had to submit the sound recording in a format that the Copyright Office would accept. Id. The Copyright Office does not accept NRG files. Similarly, Mr. Pringle never testified that he engaged in any practice of trial and error when he was “re-loading” the sound recording. Plaintiff was not referring to himself or anything he had done. A complete reading of his testimony confirms that he was referring to the questioner’s ability to load the sound recording having limited experience with the equipment. See Pringle Dep. Transcript at p. 256. Defense counsel’s characterization of Plaintiff’s testimony is incorrect. Like a magnetic tape recording that may be played on different reels and subsequently recorded, the actual sound recording Plaintiff created and submitted to the Copyright Office remained the same at all times. IV. Plaintiff Could Not Have Copied From Beatport to NRG Defense counsel conceded that the samples the Black Eyed Peas made available on www.beatportal.com were available only for a limited time and the 2 1 hard drive that Plaintiff discarded may have been inoperable at that time. He 2 represented to the Court, however, that Plaintiff “could have found” the mp3 files 3 “anywhere” on the internet and then converted them to the NRG files that were 4 preserved and placed in Mr. Gallant’s possession. 5 This statement was also not true and not supported by any evidence in the 6 record. The Ensoniq ASR-10, to which NRG files are proprietary, cannot recognize 7 or work with any audio file that is in mp3 format. Pringle Decl. at ¶ 114. It is 8 undisputed that the sound files the Black Eyes Peas made available on 9 www.beatportal.com were only available as mp3 files. Id. at ¶ 110. Plaintiff could 10 not have located orphaned mp3 files that were once available on 11 www.beatportal.com (close to 50 mb) and then worked with them in any capacity on 12 his ASR-10 keyboard. It was not possible for him to do that. See id. at ¶¶ 110-116. 13 Ms. Frederikson-Cross agreed that “the ASR-10 does not accept input from mp3s.” 14 See Frederikson-Cross Dep. at p. 192. 15 Defense counsel’s rhetoric and misstatements of the evidence cannot replace 16 scientific fact, especially when there is uncontroverted evidence that these creation 17 files were last accessed and modified in 1999. 18 19 Dated: March 6, 2012 20 21 22 Dean A. Dickie (appearing Pro Hac Vice) Kathleen E. Koppenhoefer (appearing Pro Hac Vice) MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. George L. Hampton IV (State Bar No. 144433) Colin C. Holley (State Bar No. 191999) HAMPTONHOLLEY LLP 23 24 25 By: /s/ Dean Dickie Attorneys for Plaintiff BRYAN PRINGLE 26 27 28 3 1 2 3 4 5 6 CERTIFICATE OF SERVICE On March 6, 2012, I electronically filed the foregoing PLAINTIFF’S SUPPLEMENTAL RESPONSE TO MOTION FOR SUMMARY JUDGMENT TO CORRECT MISSTATEMENTS MADE BY DEFENSE COUNSEL using the CM/ECF system which will send notification of such filing to the following registered CM/ECF Users: 7 Barry I. Slotnick 8 Donald A. Miller Tal Efriam Dickstein 9 Linda M. Burrow 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 bslotnick@loeb.com dmiller@loeb.com, vmanssourian@loeb.com tdickstein@loeb.com wilson@caldwell-leslie.com, burrow@caldwell-leslie.com, popescu@caldwell-leslie.com, robinson@caldwell-leslie.com Ryan Christopher Williams williamsr@millercanfield.com Kara E. F. Cenar kara.cenar@bryancave.com Robert C. Levels levels@millercanfield.com Kathleen E. Koppenhoefer koppenhoefer@millercanfield.com Rachel Aleeza Rappaport rrappaport@loeb.com Jonathan S. Pink jonathan.pink@bryancave.com, elaine.hellwig@bryancave.com Dean A. Dickie dickie@millercanfield.com, smithkaa@millercanfield.com, deuel@millercanfield.com, christensen@millercanfield.com, seaton@millercanfield.com Edwin F. McPherson emcpherson@mcphersonrane.com, astephan@mcphersonrane.com Joseph G. Vernon vernon@millercanfield.com James W. McConkey mcconkey@millercanfield.com Justin Michael Righettini justin.righettini@bryancave.com, elaine.hellwig@bryancave.com Tracy B. Rane trane@mcphersonrane.com Thomas D. Nolan tnolan@loeb.com 1 I am unaware of any attorneys of record in this action who are not registered 2 for the CM/ECF system or who did not consent to electronic service. 3 I certify under penalty of perjury under the laws of the United States of 4 America that the foregoing statements are true and correct. 5 Dated: March 6, 2012 6 /s/Colin C. Holley George L. Hampton IV (State Bar No. 144433) Colin C. Holley (State Bar No. 191999) HAMPTONHOLLEY LLP 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 Telephone: 949.718.4550 Facsimile: 949.718.4580 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ND: 4833-3883-8536, v. 1

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