Bryan Pringle v. William Adams Jr et al

Filing 28

JOINDER and OPPOSITION in opposition to re: EX PARTE APPLICATION for Temporary Restraining Order as to Copyright Infringement and OSC re Preliminary Injunction 15 filed by Defendants Interscope Records, UMG Recordings Inc. (Attachments: # 1 Declaration Declaration of Linda M. Burrow, # 2 Exhibit Exhibit A, # 3 Declaration Declaration of Ike Youssef)(Burrow, Linda)

1 CALDWELL LESLIE & PROCTOR, PC
LINDA M. BURROW, State Bar No. 194668
[e-mail]
2
HEATHER PEARSON, State Bar No. 235167
[e-mail]
3
1000 Wilshire Boulevard, Suite 600
4 Los Angeles, California 90017-2463
Telephone: [phone]
5 Facsimile: [phone]
6 Attorneys for Defendants
UMG RECORDINGS, INC. and
7 INTERSCOPE RECORDS
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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BRYAN PRINGLE, an individual,

13
14

Plaintiff,
v.

15

WILLIAM ADAMS, JR.; STACY
16 FERGUSON; ALAN PINEDA; and
JAIME GOMEZ, all individually and
17 collectivley as the music group the
Black Eyed Peas; DAVID GUETTA;
18 FREDERICK RIESTERER; UMG
RECORDINGS, INC.; INTERSCOPE
19 RECORDS; EMI APRIL MUSIC,
INC.; HEAPHONE JUNKIE
20 PUBLISHING, LLC.; WILL.I.AM
MUSIC, LLC; JEEPNEY MUSIC,
21 INC.; TAB MAGNETIC
PUBLISHING; CHERRY RIVER
22 MUSIC, CO.; SQUARE RIVOLI
PUBLISHING; RISTER EDITIONS;
23 and SHAPIRO, BERNSTEIN & CO.,
24

Case No. SACV 10-1656 JST (RZx)
JOINDER TO OPPOSITION AND
OPPOSITION BY DEFENDANTS
UMG RECORDINGS, INC. AND
INTERSCOPE RECORDS TO EX
PARTE APPLICATION FOR
TEMPORARY RESTRAINING
ORDER AND TO SHOW CAUSE
RE PRELIMINARY INJUNCTION;
DECLARATIONS OF LINDA M.
BURROW AND IKE YOUSSEF;
EXHIBITS
Trial Date:

None Set

Defendants.

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CALDWELL
LESLIE &
PROCTOR

JOINDER TO OPPOSITION AND
OPPOSITION TO EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER

1 I.

INTRODUCTION

2

Defendants UMG Recordings, Inc. and Interscope Records (collectively,

3 “UMG”) hereby oppose the Ex Parte Application for a Temporary Restraining
4 Order and Order to Show Cause Regarding Preliminary Injunction filed by Plaintiff
5 Bryan Pringle. Instead of repeating the arguments and evidence presented by the
6 Black Eyed Pea Defendants (collectively “BEP”), UMG hereby joins in their
7 Opposition. UMG firmly agrees with the BEP that Plaintiff has failed to establish
8 that he is likely to prevail on the merits of his claim, reason enough to deny his ex
9 parte request for a Temporary Restraining Order. UMG files this brief statement to
10 support BEP’s Opposition, and emphasize that Plaintiff’s Application can be denied
11 based upon Plaintiff’s failure to make any showing that he will suffer irreparable
12 harm in the absence of a TRO.
13 II.

PLAINTIFF WILL NOT SUFFER IRREPARABLE HARM WITHOUT

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THIS EXTRAORDINARY RELIEF

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A.

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This Court May Not Merely Presume That Plaintiff Will Suffer
Irreparable Harm

As set forth in the BEP’s Opposition, Plaintiff has not demonstrated that he is

18 likely to succeed on the merits of his copyright infringement claim. Even if he
19 could, however, he is still not entitled to an injunction, as he has failed entirely to
20 offer any evidence of irreparable harm. Indeed, Plaintiff appears to believe that he
21 need not offer any evidence of harm, but that this Court may merely presume harm
22 from his (defective) infringement claims.
23

Contrary to Plaintiff’s assertion, however, this Court may not merely assume

24 irreparable harm simply because this is a copyright infringement case. Indeed,
25 injunctive relief has never been automatic, even in a copyright infringement case.
26 See Abend v. MCA, Inc., 863 F.2d 1465 (9th Cir. 1988) (declining to enjoin
27 distribution of alleged infringing film). Summit Entertainment, LLC v. Beckett
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CALDWELL
LESLIE &
PROCTOR

-1JOINDER TO OPPOSITION AND
OPPOSITION TO EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER

1 Media, LLC, No. CV 09-8161, 2010 WL 147958 (C.D. Cal. Jan. 12, 2010)
2 (Guttierez, J.), the unpublished district court case on which Plaintiff relies, is not to
3 the contrary. In Summit Entertainment, the Court, after noting case law describing
4 this “presumption,” went on to make a factual determination that the plaintiff had, in
5 fact, demonstrated that irreparable harm was likely. See id. at *4. That finding was
6 necessary, particularly in light the Supreme Court’s decision in eBay Inc. v.
7 MercExchange, L.L.C., 547 U.S. 388 (2006), in which it specifically determined that
8 there can be no presumption of irreparable harm with respect to permanent
9 injunctions in intellectual property cases. See 547 U.S. at 394. Since eBay, courts
10 in this District and elsewhere have cast serious doubt on the validity of the
11 presumption of irreparable harm in assessing the need for preliminary relief such as
12 a TRO. See, e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518
13 F.Supp.2d 1197, 1212-13 (C.D. Cal. 2007) (Wilson, J.) (citing cases and observing
14 that “a significant number” of courts have determined that the presumption no
15 longer applies); see also Aurora World, Inc. v. Ty Inc., No. CV09-08463, --16 F.Supp.2d ---, 2009 WL 6617192, at *37 (C.D. Cal. Dec. 15, 2009) (Morrow, J.)
17 (declining to apply presumption of irreparable harm in trademark case).1
18

B.

19

Plaintiff offers no evidence of irreparable harm in this case. To the contrary,

Plaintiff Cannot Show Irreparable Harm

20 Plaintiff concedes that the infringement began upon release of “I Gotta Feeling” in
21 May 2009, over a year and a half ago. See Declaration of Bryan Pringle (“Pringle
22 Decl.”), ¶ 12; see also Declaration of Ike Youssef (“Youssef Decl.”), ¶ 2 2
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CALDWELL
LESLIE &
PROCTOR

1

The lack of viability of the presumption of irreparable harm was reinforced by the
Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc.,
129 S.Ct. 365 (2008), which held that the Ninth Circuit erred in granting a
preliminary injunction based upon a possibility of irreparable harm. Id. at 375-76.
2
The statements in the Pringle Declaration are repeated in the First Amended
Complaint (the “FAC”). See, e.g. FAC, ¶ 44. Although the FAC was filed on
(footnote continued)
-2JOINDER TO OPPOSITION AND
OPPOSITION TO EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER

1 Plaintiff’s attorney first contacted counsel for Defendants concerning “I Gotta
2 Feeling” in May of 2010—more than six months ago—but did not either file a
3 complaint or seek an injunction at that time. See Declaration of Linda M. Burrow
4 (“Burrow Decl.”), Exh. A. Indeed, Plaintiff did not file his complaint until several
5 weeks after settlement discussions broke down, Burrow Decl., ¶¶ 3-4, and then
6 waited an additional month before seeking injunctive relief. Id.
7

“Plaintiff's long delay before seeking a preliminary injunction implies a lack

8 of urgency and irreparable harm.” Oakland Tribune, Inc. v. Chronicle Publishing
9 Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985) (upholding denial of TRO where
10 plaintiff failed to show significant threat of irreparable injury). Moreover, a
11 “preliminary injunction is sought upon the theory that there is an urgent need for
12 speedy action to protect the plaintiff's rights. By sleeping on its rights a plaintiff
13 demonstrates the lack of need for speedy action . . . .” Gillette Co. v. Ed Pinaud,
14 Inc., 178 F.Supp. 618, 622 (S.D.N.Y. 1959) (denying preliminary injunction where
15 Plaintiff waited six months after Defendant started marketing a product to request
16 injunction for alleged trademark infringement).
17

The absence of irreparable harm to Plaintiff is further bolstered by Plaintiff’s

18 failure even to register his work in the eleven years since it was created. See Pringle
19 Decl., ¶ 4 (stating that he created the derivative of “Take a Dive” in 1999, but
20 registered the work with the Copyright Office in 2010). As Pringle had registered
21 previous works with the Copyright Office, see id., ¶ 3, he was well-aware of the
22 steps he needed to take to invoke the Copyright Act’s protections. Nevertheless,
23 Pringle proceeded to submit CDs with his unregistered work to music labels,
24 internet websites and virtually anyone else who would listen. See id., ¶ 7. If Pringle
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November 19, 2010, Plaintiff has not yet made an effort to serve UMG. Burrow
27 Decl., ¶ 5.
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LESLIE &
PROCTOR

-3JOINDER TO OPPOSITION AND
OPPOSITION TO EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER

1 himself could not be bothered to make even the most basic efforts at protecting his
2 work despite more than a decade of distribution, he cannot now claim that further
3 distribution of “I Gotta Feeling” would harm him irreparably.
4

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), on which

5 Plaintiff relies, is not to the contrary. In Napster, the Ninth Circuit held that the
6 activities of the Napster file-sharing service, which allowed users to download
7 copyrighted sound recordings for free, had an irreparable “deleterious effect on the
8 present and future digital download market” for such recordings. 239 F.3d at 1017.
9 This case does not concern an entire market, as was the case in Napster, but a single
10 work, which Plaintiff concedes he has never sold. Similarly inapposite is Taylor
11 Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958 (8th Cir. 2005), in which the
12 court concluded that the plaintiff’s decision not to seek monetary relief did not
13 preclude it from obtaining a permanent injunction following trial—particularly
14 where, as in that case, the defendants’ use of the plaintiff’s copyrighted greeting
15 cards precluded the plaintiff from making any use of that material thereafter. Id. at
16 962, 967-68.
17

Indeed, cases cited by the Napster court actually undermine Plaintiff’s claim

18 to irreparable harm in this case. In Abend v. MCA, Inc., 863 F.2d 1465 (9th Cir.
19 1988), for example, the Ninth Circuit declined to enjoin further distribution of the
20 film Rear Window, holding instead that the Plaintiff could “be compensated
21 adequately for the infringement by monetary compensation.” 863 F.3d at 1479; see
22 also Elvis Presley Enterprises, Inc. v. Passport Video, 357 F.3d 896, 899-900 (9th
23 Cir. 2004) (holding that the district court committed a “miscarriage of justice” in
24 failing to consider monetary remedies as an alternative to an injunction in a
25 copyright infringement case).
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LESLIE &
PROCTOR

-4JOINDER TO OPPOSITION AND
OPPOSITION TO EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER

1

C.

2

Not only does Plaintiff fail to offer any evidence of irreparable harm, but it is

The Harm to UMG Would be Immense

3 clear from his motion that UMG would suffer incalculable harm if an injunction
4 should issue. “I Gotta Feeling” is contained on the Black Eyed Peas album, “The
5 E.N.D.” which is sold in more than 7,000 stores nationwide. See Youssef Decl., ¶ 3.
6 Simply pulling the album from inventory would cost UMG hundreds of thousands
7 of dollars, if not millions of dollars in harm, including but not limited to the cost of
8 working with retailers to pull “The E.N.D.” from their shelves, the loss of good will
9 with those retailers, and damages of at least $900,000 related to returns of product
10 that is already in the marketplace. Id. UMG would also incur overhead in working
11 with on-line retailers, such as iTunes, to remove “I Gotta Feeling” from their
12 inventory. See id., ¶ 4. Moreover, as Plaintiff also notes, “I Gotta Feeling” has also
13 been licensed for various uses, including in films and television programs, which
14 UMG neither owns nor distributes. See FAC, ¶ 45(e); see also Youssef Decl., ¶ 5.
15 UMG would thus have to arrange not only to pull its own inventory from stores, but
16 would also have to incur the cost of preventing buyers from purchasing another
17 companies’ product, likely harming its ability to license similar works in the future.3
18 III.

TO PROTECT UMG, PLAINTIFF WOULD HAVE TO POST AN

19

IMMENSE BOND

20

Under Federal Rule of Civil Procedure 65(c) the Court is required to require

21 Plaintiff to post a bond “to pay the costs and damages sustained by any party found
22 to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). “When
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3

Should the Court find that the Plaintiff has demonstrated a sufficient question on
the merits to warrant further consideration of its ex parte application, UMG requests
25 that it be given additional to prepare a more comprehensive response, which would
include more specific evidence of the harm UMG would suffer as a result of the
26 entry of an injunction in this case. Given Plaintiff’s long delay in bringing this case,
he cannot complain of any additional harm he might suffer in the time necessary for
order to allow UMG to prepare and file a more detailed response.
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CALDWELL
LESLIE &
PROCTOR

-5JOINDER TO OPPOSITION AND
OPPOSITION TO EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER

1 setting the amount of security, district courts should err on the high side. . . . [A]n
2 error in the other direction produces irreparable injury, because the damages for an
3 erroneous preliminary injunction cannot exceed the amount of the bond.” Mead
4 Johnson & Co. v. Abbott Laboratories, 201 F.3d 883, 888 (7th Cir. 2000).
5

Here, the Plaintiff is an individual—apparently unsuccessful—songwriter,

6 who seeks to force UMG to incur, at a minimum, hundreds of thousands of dollars
7 in costs in complying with an injunction against future sales of “I Gotta Feeling”
8 when Plaintiff himself allowed those sales to continue for a year and a half before
9 seeking any sort of relief. As UMG would be required to take immediate action to
10 comply with the TRO, the “costs and damages” it incurs, see Fed. R. Civ. P. 65(c),
11 would be immediate and substantial. See generally Youssef Decl., ¶¶ 3-5.
12 Accordingly, in the unlikely event this Court is inclined to issue a TRO, it should
13 require the Plaintiff to post a substantial bond to cover the harm to UMG should the
14 injunction be found to have been improvidently entered.
15 IV.

CONCLUSION

16

For the reasons stated herein, and in the Opposition filed by the BEP, this

17 Court should deny Plaintiff’s ex parte application and decline to issue the requested
18 TRO.
19 DATED: November 23, 2010
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Respectfully submitted,
CALDWELL LESLIE & PROCTOR, PC
LINDA M. BURROW
HEATHER PEARSON
By

/s/
LINDA M. BURROW
Attorneys for Defendants
UMG RECORDINGS, INC. and INTERSCOPE
RECORDS

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CALDWELL
LESLIE &
PROCTOR

-6JOINDER TO OPPOSITION AND
OPPOSITION TO EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER