Bryan Pringle v. William Adams Jr et al

Filing 283

DECLARATION of Tal E. Dickstein in support of MOTION for Attorney Fees of all Defendants 280 filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Miller, Donald)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION AT SANTA ANA

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HONORABLE JOSEPHINE STATON TUCKER, JUDGE PRESIDING

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BRYAN PRINGLE,
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PLAINTIFF,
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VS.
) SACV NO. 10-1656-JST
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WILLIAM ADAMS, JR., ET CETERA, ET )
AL.,
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DEFENDANTS.
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___________________________________)

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

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SANTA ANA, CALIFORNIA

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MONDAY, JANUARY 31, 2011

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10:00 A.M.

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DEBORAH D. PARKER, CSR 10342
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT
411 WEST FOURTH STREET
SUITE 1-053
SANTA ANA, CALIFORNIA 92701
[phone]
[e-mail]

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DEBORAH D. PARKER, U.S. COURT REPORTER

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APPEARANCES OF COUNSEL:
FOR THE PLAINTIFF, BRYAN PRINGLE:
DEAN A. DICKIE
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
225 W. WASHINGTON STREET
SUITE 2600
CHICAGO, ILLINOIS 60606
[phone]

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GEORGE L. HAMPTON IV
HAMPTON HOLLEY, LLP
2101 EAST COAST HIGHWAY
SUITE 260
CORONA DEL MAR, CALIFORNIA 92625
[phone]

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FOR THE DEFENDANTS, WILLIAM ADAMS JR., ET CETERA,
ET AL.:
BARRY I. SLOTNICK
LOEB & LOEB, LLP
345 PARK AVENUE
NEW YORK, NEW YORK 10154
[phone]

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FOR THE DEFENDANTS, UMG RECORDS, INC. AND
INTERSCOPE RECORDS:
LINDA M. BURROW
CALDWELL LESLIE & PROCTOR, PC
1000 WILSHIRE BOULEVARD
SUITE 600
LOS ANGELES, CALIFORNIA 90017
[phone]

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DEBORAH D. PARKER, U.S. COURT REPORTER

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APPEARANCES OF COUNSEL:
FOR THE DEFENDANTS, WILLIAM ADAMS, ALLAN PINEDA,
JAIME GOMEZ, STACY FERGUSON, WILL.I.AM MUSIC, LLC;
TAB MAGNETIC PUBLISHING COMPANY; JEPPNEY MUSIC;
HEADPHONE JUNKIE; EMI APRIL MUSIC
AND CHERRY RIVER MUSIC COMPANY:
KARA E.F. CENAR
BRYAN CAVE, LLP
161 NORTH CLARK STREET
SUITE 4300
CHICAGO, ILLINOIS 60601
[phone]

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FOR THE DEFENDANTS, WILLIAM ADAMS, ALLAN PINEDA,
JAIME GOMEZ, STACY FERGUSON, WILL.I.AM MUSIC, LLC;
TAB MAGNETIC PUBLISHING COMPANY; JEPPNEY MUSIC;
HEADPHONE JUNKIE; EMI APRIL MUSIC
AND CHERRY RIVER MUSIC COMPANY:

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JONATHAN S. PINK
BRYAN CAVE, LLP
3161 MICHELSON DRIVE
SUITE 1500
IRVINE, CALIFORNIA 92612
[phone]

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DEBORAH D. PARKER, U.S. COURT REPORTER

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SANTA ANA, CALIFORNIA; MONDAY, JANUARY 31, 2011; 10:00 A.M.

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THE COURT:

GOOD MORNING.

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THE CLERK:

CALLING CALENDAR ITEM NO. 1,

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SACV 10-16560-JST, BRYAN PRINGLE VERSUS WILLIAM ADAMS, JR.,

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ET CETERA, ET AL.

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COUNSEL, YOUR APPEARANCES, PLEASE.

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MS. KELLER:

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DEAN DICKIE, APPEARING ON BEHALF OF PLAINTIFF.

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MR. HAMPTON:

GOOD MORNING, YOUR HONOR.

GOOD MORNING, YOUR HONOR.

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GEORGE HAMPTON, APPEARING ON BEHALF OF PLAINTIFF.

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MR. SLOTNICK:

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BARRY SLOTNICK, APPEARING ON BEHALF OF SHAPIRO

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GOOD MORNING, YOUR HONOR.

BERNSTEIN AND DAVID GUETTA, DEFENDANTS.

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MS. BURROW:

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LINDA BURROW, UMG RECORDINGS AND INTERSCOPE

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GOOD MORNING, YOUR HONOR.

RECORDS.

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MS. CENAR:

GOOD MORNING, YOUR HONOR.

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KARA CENAR AND JONATHAN PINK, AND I HAVE THE

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LONGEST LIST:

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MUSIC, LLC; TAB MAGNETIC COMPANY; JEEPNEY MUSIC, HEADPHONE

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JUNKIE.

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ADAMS, PINEDA AND GOMEZ, FERGUSON.

THE COURT:

I'M SORRY.

WILL.I.AM

SLOW DOWN A LITTLE BIT FOR

THE BENEFIT OF OUR COURT REPORTER.

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MS. BURROW:

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THE COURT:

EMI APRIL MUSIC AND CHERRY RIVER.
AND WAS OUR COURT REPORTER ABLE TO GET

DEBORAH D. PARKER, U.S. COURT REPORTER

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THAT?
WE'LL HAVE YOU READ THAT LIST TO HER OFF THE
RECORD LATER.
ALL RIGHT.

AND WE ARE HERE ON THE REQUEST FOR

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PRELIMINARY INJUNCTION FILED BY PLAINTIFF IN THE CASE, AND

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SO I WILL HEAR FROM PLAINTIFF FIRST.

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AND I DO HAVE A COUPLE OF QUESTIONS.

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MR. DICKIE:

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GOOD MORNING, YOUR HONOR.

MAY IT

PLEASE THE COURT.
BEING SOMEWHAT FAMILIAR WITH THE COURT'S
PROCEDURES, I'M HAPPY TO ADDRESS THE QUESTIONS.
I KNOW THERE ARE SUBSTANTIAL PAPERS WHICH HAVE

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BEEN FILED, WHICH I DON'T INTEND TO GO OVER.

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ARGUMENTS ARE SET FORTH IN OUR REQUEST FOR THE RELIEF IS

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WHAT WE BELIEVE TO BE A VALID COPYRIGHT ACCESS AND

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SUBSTANTIAL SIMILARITY OF SOUND IS ALWAYS SET FORTH IN THE

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PLEADINGS.

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I THINK THE

I WOULD BE HAPPY, YOUR HONOR, IF YOU HAVE SOME
QUESTIONS TO ADDRESS THOSE.

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THE COURT:

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MR. DICKIE:

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THE COURT:

THE ORIGINAL VERSION OF TAKE A DIVE?
YES, MA'AM.
WHILE THE COURT UNDERSTANDS FOR

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PURPOSES OF YOUR MOTION TO DISMISS THAT THE FACT THAT IT WAS

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PART OF A COLLECTION MEANS THAT EVEN THOUGH IT MAY NOT HAVE

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BEEN INDIVIDUALLY LISTED AS TAKE A DIVE IF IT WAS PART OF
DEBORAH D. PARKER, U.S. COURT REPORTER

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THAT COLLECTION AND IT WAS ALLEGED THAT IT WAS PART OF THAT

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COLLECTION, THAT'S FINE FOR, AGAIN, MOTION TO DISMISS

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PURPOSES.

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CAN YOU TELL ME WHAT EVIDENCE DID YOU PROVIDE FOR

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THE PRELIMINARY INJUNCTION TO REFLECT -- THAT REFLECTS THAT

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THAT PARTICULAR SONG, TAKE A DIVE, THE ORIGINAL VERSION, WAS

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PART OF THE DEADBEAT CLUB 1998 CD.

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LET ME ASK A MORE -- A SIMPLER QUESTION, FIRST,
PERHAPS:

1998 CD FOR WHICH YOUR CLIENT OBTAINED A COPYRIGHT; CORRECT?

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MR. DICKIE:

I BELIEVE THAT IS CORRECT, YOUR

THE COURT:

WHAT EVIDENCE DO I HAVE THAT THAT

HONOR.

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YOU DID NOT PROVIDE TO THE COURT THE DEADBEAT CLUB

ORIGINAL VERSION IS PART OF THAT COLLECTION?

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MR. DICKIE:

YOU HAVE THE DECLARATION OF

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MR. PRINGLE.

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THE REGISTRATION OF THE SOUND RECORDING FOR TAKE A DIVE, THE

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DANCE VERSION WHICH GOES BACK TO 1999, ACCORDING TO THE

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COPYRIGHT REGISTRATION.

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YOU HAVE AS WELL -- YOU ALSO HAVE BEFORE YOU

THE COURT:
CORRECT?

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MR. DICKIE:

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THE COURT:

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THAT'S THE DERIVATIVE VERSION;

YES, SIR.
AND THAT'S THE COPYRIGHT FOR THE SOUND

RECORDING; CORRECT?
MR. DICKIE:

THAT'S CORRECT.

AND, THEN, I BELIEVE

DEBORAH D. PARKER, U.S. COURT REPORTER

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WE SUBMIT THE CD, ITSELF; BUT WE DID SUBMIT, AS I SAID,

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MR. PRINGLE'S DECLARATION WITH RESPECT TO WHAT WAS CONTAINED

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IN THAT VERSION.

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THAT IS EVIDENCE OF THAT.

THE COURT:

WELL, YOU'RE REQUESTING A PRELIMINARY

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INJUNCTION, THOUGH, CORRECT?

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WOULD BE APPROPRIATE FOR THE COURT TO ISSUE A PRELIMINARY

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INJUNCTION IF THE ONLY EVIDENCE I HAD ON SOME VERY

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SIGNIFICANT POINTS WERE YOUR CLIENT'S DECLARATION ON THAT?

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MR. DICKIE:

AND SO WOULD YOU THINK THAT IT

YOUR HONOR, I THINK YOU HAVE MORE

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THAN THAT.

I THINK YOU HAVE THE -- ARE ABLE TO COMPARE THE

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SUBSTANTIAL SIMILARITY OF THE RECORDINGS THEMSELVES OF THE

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MUSIC, BECAUSE THAT WAS SUBMITTED TO COMPARE THEM TO SEE IF

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THEY'RE SUBSTANTIALLY THE SAME.

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THE COURT:

BUT I CAN'T DO THAT IF I'M -- IF I

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DON'T KNOW THAT THAT SONG IS ACTUALLY PART OF THE

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COPYRIGHT -- COPYRIGHTED COLLECTION IN DEADBEAT CLUB 1998;

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CORRECT?

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MR. DICKIE:

WITHOUT -- IF YOU'RE SAYING THAT

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WITHOUT HAVING DEADBEAT CLUB 1998 THAT SPECIFIC CD, AND THEN

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BEING ABLE TO GO INTO IT, AND YOU'RE NOT WILLING TO TAKE THE

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DECLARATION OF MR. PRINGLE, THEN THERE IS NO FURTHER SUPPORT

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FOR THAT, BASED ON WHAT HAS BEEN SUBMITTED, AT LEAST THAT

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I'M AWARE OF IN THE PAPERS.

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THE COURT:

LET ME MOVE ON TO THE DERIVATIVE

VERSION, THE 1999 VERSION OF THE SONG.

THAT IS COPYRIGHTED

DEBORAH D. PARKER, U.S. COURT REPORTER

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AS TO THE SOUND RECORDING; CORRECT?

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MR. DICKIE:

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THE COURT:

YES.
NOW HOW DO YOU RESPOND TO THE

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DECLARATION, BECAUSE I DON'T -- I DON'T THINK I SAW A

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SIGNIFICANT RESPONSE, IF ANY, IN THE REPLY PAPERS TO THE

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DEFENDANTS' EXPERT THAT DECLARES THAT IT CAN'T BE SAMPLED --

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IT COULDN'T HAVE BEEN SAMPLED.

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LET ME BACK UP AGAIN.
SIMPLER QUESTION:

I'M GOING TO ASK AN EVEN

IN ORDER FOR YOU TO SHOW COPYRIGHT

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INFRINGEMENT WHEN IT'S BASED ON A SOUND RECORDING, YOU HAVE

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TO SHOW SAMPLING; CORRECT?

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MR. DICKIE:

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THE COURT:

YES.
NOW, THAT I'VE GOT THAT QUESTION OUT

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OF THE WAY, THE FUNDAMENTAL QUESTION, HOW DO YOU RESPOND TO

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THE DEFENDANTS' EXPERT DECLARATION THAT SAYS -- THAT

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CONTRADICTS YOUR EXPERT'S DECLARATION AND SAYS, COULD NOT

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HAVE BEEN SAMPLED.

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EXPECTED TO SEE, PERHAPS, IN A REPLY BRIEF IS A FURTHER

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DECLARATION BY THE PLAINTIFF'S EXPERT SAYING, NO, HE'S

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WRONG, AND HERE IS WHY.

IN OTHER WORDS, WHAT I WOULD HAVE

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I DIDN'T SEE THAT.

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MR. DICKIE:

THAT'S CORRECT, YOUR HONOR.

AND,

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IN FACT, AT LEAST FOR PURPOSES OF THAT ISSUE, WE ARE IN THE

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PROCESS OF GATHERING ADDITIONAL INFORMATION WITH RESPECT TO

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THAT ISSUE.

BUT THE WHOLE IDEA OF THE SAMPLING AND THE

DEBORAH D. PARKER, U.S. COURT REPORTER

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SOUND RECORDING IS ONE WHICH I THINK THERE IS A QUESTION OF

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FACT, AND THAT CAN BE RESOLVED BY THE ISSUE OF LISTENING TO

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THE TWO SONGS AND COMPARING THEM.

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SUBSTANTIALLY SIMILAR IF NOT IDENTICAL, ONE HAS TO ASSUME

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FROM THAT THAT THERE WAS SOME FORM OF COPYING AT LEAST FOR

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PURPOSES OF AN INITIAL PROCEEDING.

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THE COURT:

I'M SORRY.

I MEAN, IF THEY ARE SO

AND INDEED --

WAIT.

WE'RE TALKING ABOUT

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SAMPLING NOW.

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AND SUBSTANTIAL SIMILARITY, WHICH AT LEAST IN THE COURT'S

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VIEW -- AND I DON'T CLAIM TO BE AN EXPERT IN THIS AREA AT

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THIS POINT, BUT I HAVE READ AS MANY OF THE CASES AS I CAN.

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AND I DON'T SEE WHERE SUBSTANTIAL SIMILARITY AND ACCESS COME

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INTO PLAY WHEN WE'RE TALKING ABOUT SOUND RECORDING AND

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SAMPLING.

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SO YOU'RE ON TO SUBSTANTIAL SIMILARITY ACCESS

SO MAYBE WE CAN BACK UP, AND YOU COULD EXPLAIN
THAT.
MR. DICKIE:

I'M NOT SURE THAT I CAN DO IT ANY

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BETTER THAN WHAT WE HAVE ALREADY DISCUSSED, YOUR HONOR, IN

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THE SENSE OF WE DID NOT SUBMIT AND HAVE NOT BEEN ABLE TO AT

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THIS POINT TO COMPLETE THE WORK NECESSARY TO SUBMIT THE

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REJOINDER TO THAT DECLARATION WITH RESPECT TO THE VARIOUS

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VERSIONS THAT EXIST IN TERMS OF SAMPLING.

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THE COURT:

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MR. DICKIE:

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OKAY.
THAT IS AN ISSUE WHICH, I THINK, AS

YOU NOTED IN THE MOTION TO DISMISS OPINION WHICH WILL BE THE
DEBORAH D. PARKER, U.S. COURT REPORTER

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SUBJECT OF ADDITIONAL PROOFS THAT WILL HAVE TO BE FLESHED

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OUT AS WE GO FORWARD.

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THE COURT:

VERY WELL.

ANYTHING YOU WISH TO ADD?

THOSE ARE THE COURT'S ONLY QUESTIONS TODAY.
MR. DICKIE:

NO, YOUR HONOR, EXCEPT THAT I WOULD

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ADD -- I GUESS THE ANSWER IS, YES, I THINK, YOUR HONOR,

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BASED ON YOUR EARLIER QUESTION.

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GIVEN ALL OF THE THINGS THAT ARE BEFORE THE COURT, THAT

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THERE IS A DEMONSTRATED SUBSTANTIAL SIMILARITY WHICH

ON A PRELIMINARY BASIS,

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ENTITLES US TO SOME RELIEF, AT LEAST ON A PRELIMINARY BASIS,

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SINCE THEY HAVE NOT IN ANY WAY SENT AN EXPERT TO REFUTE THE

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SIMILARITY OF THESE VERSIONS AND OF THESE SONGS, AND THAT

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OURS GO BACK A LONG TIME.

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THE COURT DOES HAVE AMPLE SUPPORT FOR THE ISSUANCE OF THE

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INJUNCTION REQUESTED BASED UPON THE PLEADINGS, AND THE

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UNREFUTED DECLARATIONS WITH RESPECT TO THE MUSIC, THE

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SIMILARITY AND SO FORTH.

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THE COURT:

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MR. DICKIE:

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THE COURT:

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MR. SLOTNICK:

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THE COURT:

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MR. SLOTNICK:

AND I THINK THAT ON THAT BASIS

THANK YOU.
THANK YOU.
ANYTHING FROM DEFENDANTS?
GOOD MORNING, YOUR HONOR.

GOOD MORNING.
YOUR HONOR, HAVING HEARD

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MR. DICKIE, I'M SORT OF AT A LOSS TO KNOW WHAT TO REBUT.

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YOUR HONOR HAS ASKED THE SAME QUESTIONS THAT WE WOULD HAVE
DEBORAH D. PARKER, U.S. COURT REPORTER

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ASKED OF HIM.

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THE INITIAL WORK.

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THE ONE THAT PURPORTEDLY WAS CREATED IN 1999 BUT WAS NOT

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REGISTERED UNTIL 2010, A YEAR OR SO AFTER THE DEFENDANTS'

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WORK WAS REGISTERED, THE COURT ASKED THE RIGHT QUESTION.

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SUBSTANTIAL SIMILARITY IS NOT ENOUGH.

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IS NOT ENOUGH.

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THERE IS NO IDENTIFIABLE EVIDENCE REGARDING
AND WITH RESPECT TO THE DERIVATIVE WORK,

STRIKING SIMILARITY

ACCESS IS NOT ENOUGH.

IN ORDER TO PROVE A COPYRIGHT INFRINGEMENT OF THE
SOUND RECORDING, THE PLAINTIFF MUST PROVE COPYING.

COPYING

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IS NOW, I GUESS, IN THE VERNACULAR, SAMPLING.

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PROVEN IT.

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PROVEN IT TO DATE.

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GREAT DEAL OF TIME DEALING WITH A MOTION TO DISMISS, BECAUSE

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WE THINK THAT, FRANKLY, THE PLAINTIFF'S ALLEGATIONS ARE A

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SHELL GAME, EXCEPT THAT WHEN YOU REMOVE -- WHEN YOU TURN

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OVER ALL THREE OF THE SHELLS, THERE'S NO PEA UNDER ANY OF

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THEM.

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THEY HAVEN'T

THEY CAN'T PROVE IT, OR AT LEAST THEY HAVEN'T
OBVIOUSLY, THE DEFENDANTS EXPENDED A

SO WHAT WE'RE -- YOU KNOW, WHAT WE'RE ASKING FOR

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NOW IS, YOU KNOW, WHAT'S THE RUSH TO AN INJUNCTION WHEN THEY

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CAN'T PROVE A COPYRIGHT IN THE UNDERLYING WORK?

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PROVE COPYING OF THE SOUND RECORDING.

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THAT WITH AN EXPERT, AND THEY HAVE NOT REBUTTED THAT.

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REALLY IS NO THERE, THERE.

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ALLEGATIONS IN THE FIRST AMENDED COMPLAINT AS REPEATEDLY

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MODIFIED BY THE VARIOUS DECLARATIONS OF THE PARTIES, JUST

THEY CAN'T

WE HAVE CHALLENGED
THERE

AND, YOU KNOW, THE NATURE OF THE

DEBORAH D. PARKER, U.S. COURT REPORTER

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LEAVE US EVEN MORE AT SEA AS TO WHAT THE PLAINTIFF REALLY

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DID, WHAT HE CREATED, WHAT HE MAY HAVE COPIED FROM THE

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DEFENDANTS FOR ALL WE KNOW.

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NOW, IT JUST SEEMS STRIKING TO ME THAT WHEN THE

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PLAINTIFF THOUGHT THAT MY CLIENTS, MY INDIVIDUAL CLIENTS

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WERE RESIDENTS OF CALIFORNIA, HIS TESTIMONY AS IT WERE, WAS

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THAT HE SUBMITTED COPIES OF THESE DERIVATIVE WORKS TO

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EVERYBODY IN THE MUSIC BUSINESS IN THE UNITED STATES.

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HE FOUND OUT THAT THEY WERE FRENCH, LO AND BEHOLD, HE AND

ONCE

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HIS BROTHER MADE A ROAD TRIP.

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ACCESS BY GOING TO FRANCE AND SUBMITTING THIS TO SOMEONE IN

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FRANCE.

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TWO PEOPLE IN A CORPORATION, I DON'T THINK HANDING THESE OUT

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AT CHARLES DEGAUL CONSTITUTES A LEVEL OF LIABILITY FOR THE

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FRENCH AUTHORS WHO HAVE ALREADY SAID, WE INDEPENDENTLY

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CREATED THIS.

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IF THE PLAINTIFF EVER SERVES MR. RISTER, I'M SURE THAT HE

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WILL TESTIFY AT GREAT LENGTH AS TO EXACTLY WHAT HE DID AND

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WHEN HE DID IT.

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AND NOW, APPARENTLY, THERE IS

IF THEIR CORPORATE RECEIPT IS INSUFFICIENT TO BIND

THEY GAVE CHAPTER AND VERSE HOW THEY DID IT.

YOU KNOW, FRANKLY, I DON'T THINK WE NEED TO

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BELABOR THE POINT, BUT I DO WANT TO MAKE ONE POINT REGARDING

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IRREPARABLE INJURY.

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BRING THEIR LAWSUIT.

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THEY SEEK A PRELIMINARY INJUNCTION.

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TALKING ABOUT, REALLY, IS THAT FOR 10 YEARS, THE PLAINTIFF

IT'S 18 MONTHS AFTER THE FACT THAT THEY
IT'S 20 MONTHS AFTER THE FACT THAT
AND THE FACT THAT WE'RE

DEBORAH D. PARKER, U.S. COURT REPORTER

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ALLEGEDLY WENT THROUGH HEAVEN AND EARTH TO GET HIS WORK

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EXPLOITED.

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CONTINENTS, MAYBE MORE.

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THAT IT WOULD GET EXPLOITED.

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A CLOSET.

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HOW GOOD I AM?

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TO SUBMIT THIS TO EVERYBODY, APPARENTLY, ON TWO
TO SUBMIT THIS WORK IN SUCH A WAY
NOT THAT IT WOULD BE LOCKED IN

HE WASN'T SENDING THIS TO EVERYONE SAYING, SEE
I DON'T WANT YOU EVER TO USE IT.

HE WANTED PEOPLE TO USE IT.

IF, IN THE UNLIKELY

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EVENT THAT PLAINTIFF CAN ACTUALLY PROVE THAT HE CREATED THIS

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WORK FIRST AND THAT IT WAS COPIED, THEN HE IS MORE -- THEN

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HE WILL BE MORE THAN AMPLY JUSTIFIED IN COLLECTING DAMAGES.

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YOUR HONOR CAN LOOK AT THE NAMES OF THE

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DEFENDANTS.

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JUST NO POINT FOR BEING HERE NOW.

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TAKE DISCOVERY.

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THE REST OF THE DEFENDANTS, AND WE'LL COME BACK TO YOUR

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HONOR IN EIGHT OR NINE MONTHS, IF WE HAVEN'T MOVED FOR

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SUMMARY JUDGMENT LONG BEFORE THAT, AND WE'LL HAVE A PROPER

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HEARING AT A PROPER TIME WITH OSTENSIVELY PROPER EVIDENCE.

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I THINK WE'RE ALL GOOD FOR THE MONEY.

THERE IS

THEY HAVE A CASE.

WE'LL

THEY'LL TAKE DISCOVERY, AND THEY'LL SERVE

I SUSPECT THE PLAINTIFF IS GOING TO PROVIDE

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EXACTLY THE SAME EVIDENCE THAT PLAINTIFF HAS PROVIDED TODAY,

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WHICH IS NOTHING.

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THANK YOU FOR YOUR TIME, YOUR HONOR.

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THE COURT:

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ANYBODY ELSE WISH TO BE HEARD ON THE DEFENDANTS'

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THANK YOU.

SIDE, OR DOES THAT COVER IT?
DEBORAH D. PARKER, U.S. COURT REPORTER

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I HAVE NO QUESTIONS.

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MS. CENAR:

NO, YOUR HONOR.

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THE COURT:

VERY WELL.

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ANYTHING FURTHER FROM

PLAINTIFF?

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MR. DICKIE:

YOUR HONOR, I WOULD LIKE TO JUST

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ADDRESS SOMETHING THAT COUNSEL RAISED WITH RESPECT TO THE

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TIME FRAME AND THE DELAY IN BRINGING OF THE MOTION.

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I THINK AS PART OF WHAT'S ALLEGED IN THIS

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COMPLAINT IS, IN FACT, THAT THE DEFENDANTS HAVE APPROACHED,

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IF YOU WILL, NEW AND NON-FAMOUS COMPOSERS AND AUTHORS OF

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MUSIC.

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TO TAKE ON PEOPLE WHO STAND BEFORE THE COURT AND SAY, WE

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HAVE SO MUCH MONEY, YOU NEED NOT WORRY ABOUT IT.

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EVENT THAT THERE'S A JUDGMENT, WE CAN OBVIOUSLY PAY IT.

AND WITH THE WHOLE VIEW THAT IT'S DIFFICULT FOR THEM

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IN THE

AND THE FACT IS, IT TOOK TIME, FOR ONE, FOR

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MR. PRINGLE TO OBTAIN COUNSEL, AND THEN THERE WERE

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NEGOTIATIONS AND ATTEMPTS TO SETTLE THE CASE WHICH TOOK A

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PERIOD OF TIME.

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OF TIME.

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AND THOSE WERE UNSUCCESSFUL OVER A PERIOD

A LAWSUIT WAS BROUGHT.
SO I DON'T THINK IN THE CONTEXT OF THE

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INTELLECTUAL PROPERTY RIGHTS, SUGGESTING THAT UNDER THE

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FACTS IN THIS CASE AND GIVEN THE PECUNIARY CIRCUMSTANCES OF

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THE PLAINTIFF THAT THAT WOULD BE A BASIS ON WHICH THE COURT

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COULD DENY OR SAY THAT WE WERE LAX IN BRINGING THE MATTER TO

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THE COURT'S ATTENTION AND SEEKING THE RELIEF THAT WE SOUGHT
DEBORAH D. PARKER, U.S. COURT REPORTER

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UNDER THE CIRCUMSTANCES.

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WITH RESPECT TO THE OTHER ISSUE, COUNSEL TALKED

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ABOUT WE HAVE TO PROVE IT.

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BELIEVE THE LAW IS THAT WE HAVE TO RAISE A SUBSTANTIAL

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QUESTION OF WHETHER OR NOT THERE WAS A COPYRIGHT

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INFRINGEMENT, NOT THAT WE HAVE TO PROVE IT AS IF IT WAS A

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TRIAL ON THE MERITS.

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THE COURT:

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AT THE PRELIMINARY STAGE, I

WELL, NOW, WAIT A SECOND.

YOU HAVE TO

RAISE A SERIOUS ISSUE -- YOU KNOW, A SERIOUS ISSUE GOING TO

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THE MERITS.

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YOU DON'T RAISE IT BY ALLEGATIONS.

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PRESENTING EVIDENCE.

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AND YOU DON'T RAISE IT BY ASKING QUESTIONS.
YOU RAISE IT BY

IF YOU CAN SHOW ME A CASE THAT SAYS THAT A

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PRELIMINARY INJUNCTION DOES NOT NEED TO BE BASED ON

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EVIDENCE, I.E., PROOF, THEN I'LL TAKE A LOOK AT THAT.

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MR. DICKIE:

NO, YOUR HONOR, I WASN'T SUGGESTING

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THAT WE DIDN'T HAVE TO SUBMIT SOME EVIDENCE.

BUT PROVE IT

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IN THE SENSE OF THE SAME LEVEL OF PROOF THAT WOULD BE

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REQUIRED.

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IN THE RECORDS, IN THE DECLARATIONS IS A SUBSTANTIAL

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LIKELIHOOD OF SUCCESS.

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NOT REQUIRE THAT A SUBSTANTIAL LIKELIHOOD OF SUCCESS BE,

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MEANING A FULL BURDEN THAT THE JURY WOULD IMPOSE AFTER THE

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CLOSE OF ALL OF THE EVIDENCE.

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WASN'T SUGGESTING THAT YOU DIDN'T HAVE TO SHOW SOMETHING.

WHAT I HAVE TO SHOW BY EVIDENCE IN THE PLEADINGS,

AND I WOULD SUBMIT THAT THE CASES DO

THAT WAS MY ONLY POINT.

DEBORAH D. PARKER, U.S. COURT REPORTER

I

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BUT WHAT I DO THINK, ON THE DECLARATIONS THAT ARE HERE, THAT

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THERE IS SHOWING THAT IS SUBSTANTIAL ENOUGH ON THE

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DECLARATIONS AND THE DOCUMENTS SUBMITTED TO WARRANT THE

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ISSUANCE OF THE RELIEF REQUESTED.

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THAT WAS THE POINT.

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THE COURT:

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MR. DICKIE:

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THE COURT:

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IT WILL BE TAKEN UNDER SUBMISSION, AND YOU'LL

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OKAY.
THANK YOU, YOUR HONOR.
THANK YOU VERY MUCH.

RECEIVE THE COURT'S RULING WHEN IT'S POSTED ON THE DOCKET.

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THANK YOU.

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THE CLERK:

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ALL RISE.

(AT 10:19 A.M., PROCEEDINGS WERE ADJOURNED.)

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-OOO-

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DEBORAH D. PARKER, U.S. COURT REPORTER

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CERTIFICATE

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I HEREBY CERTIFY THAT PURSUANT TO SECTION 753,

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TITLE 28, UNITED STATES CODE, THE FOREGOING IS A TRUE AND

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CORRECT TRANSCRIPT OF THE STENOGRAPHICALLY REPORTED

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PROCEEDINGS HELD IN THE ABOVE-ENTITLED MATTER AND THAT THE

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TRANSCRIPT PAGE FORMAT IS IN CONFORMANCE WITH THE

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REGULATIONS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES.

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DATE:

JANUARY 31, 2011

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____________________________________

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DEBORAH D. PARKER, OFFICIAL REPORTER

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DEBORAH D. PARKER, U.S. COURT REPORTER