Brave New Films 501 (C)(4) v. Weiner et al

Filing 34

JOINT CASE MANAGEMENT STATEMENT filed by Michael Weiner, Original Talk Radio Network Inc., Brave New Films 501 (C)(4). (Pierce, Sheila) (Filed on 1/22/2009)

Brave New Films 501 (C)(4) v. Weiner et al

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Anthony T. Falzone (SBN 190845) Julie A. Ahrens (SBN 230170) Christopher K. Ridder (SBN 218691) STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] William F. Abrams (SBN 88805) Sheila M. Pierce (SBN 232610) BINGHAM McCUTCHEN LLP 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: [phone] Facsimile: 650.849.4800 Email: [e-mail] Attorneys for Plaintiff Brave New Films 501(c)(4) Benjamin Aaron Shapiro (SBN 254456) 12330 Magnolia Blvd., #114 Valley Village, CA 91607 Telephone: [phone] Email: [e-mail] Attorneys for Defendants Michael Weiner aka Michael Savage, and Original Talk Radio Network, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

BRAVE NEW FILMS 501(C)(4), v. Plaintiff,

No. CV 08-04703 SI JOINT CASE MANAGEMENT STATEMENT F.R.C.P. 16 and Civil L.R. 16-10 Date: Time: Place: Judge: January 23, 2009 2:00 p.m. Courtroom 10, 19th Floor Honorable Susan Illston

MICHAEL WEINER aka MICHAEL SAVAGE, and ORIGINAL TALK RADIO NETWORK, INC., Defendants.

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Pursuant to Civil Local Rule 16-9 and Fed.R.Civ.P. 26(f), Plaintiff Brave New Films, 501(c)(4) ("Brave New Films") and Defendants Original Talk Radio Network, Inc. ("OTRN") and Michael Weiner ("Savage") (collectively "the Parties") jointly submit this Case Management Statement in advance of the January 23, 2009 Case Management Conference. 1. Jurisdiction This is an action for declaratory judgment and damages arising under the Federal Copyright Act, 17 U.S.C. §§ 101 et seq. This Court has subject matter jurisdiction over this claim pursuant to 28 U.S.C. §§ 1331 and 1338, and the Declaratory Judgment Act, 28 U.S.C. § 2201. There are no disputed issues regarding personal jurisdiction or venue. All named Defendants are served. 2. Facts Brave New Films seeks a declaration that the video at issue in this matter does not infringe the copyright of OTRN or Savage, or any other exclusive rights that OTRN or Savage might assert under state or federal law. Brave New Films also seeks damages it claims were a direct and proximate result of the actions alleged in the Complaint. This dispute originally arose on September 29, 2008, when a letter written by Carter Glahn, Esquire, which stated under the penalty of perjury that his office represented "the owner of an exclusive right" and had "been retained by The Original Talk Radio Network to take such actions as may be appropriate," was sent to YouTube's "DMCA Complaints" department demanding the removal of a total of 259 videos, including "Michael Savage Hates Muslims" (the "Video"), a video created and posted by Brave New Films, which uses approximately one minute of excerpts from an October 29, 2007 broadcast of "The Michael Savage Show" in a one minute, twenty-four second video. Mr. Glahn asserted that YouTube was "in violation of OTRN's exclusive rights" and demanded that YouTube immediately remove all OTRN Content (defined as "numerous segments from OTRN's `The Michael Savage Show'") from its website and "cease and desist all further publications, broadcasts, and/or reproductions of any and all OTRN Content" immediately. This cited content included the Video, which contained excerpts from the October 29, 2007 broadcast of the Michael Savage Show. Savage is identified as the "Copyright 1
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Claimant" of "The Michael Savage Show, October 29, 2007" in the copyright registration filed with the U.S. Copyright Office. See Copyright Registration attached as Exhibit A to the Complaint. On October 2, 2008, following receipt of the September 29, 2008 letter demanding the removal of a total of 259 videos, including the Video, YouTube disabled access to the Video and notified Brave New Films that the Video had been removed pursuant to the complaint letter by OTRN. Brave New Films claims that YouTube also disabled access to Brave New Films' entire YouTube channel, which is Brave New Films' main channel of distribution for its videos, and that on October 3, 2008, Brave New Films submitted a DMCA counter-notice to YouTube. On October 10, 2008, Brave New Films filed this lawsuit. OTRN and Savage claim that they were not notified by Brave New Films of the DMCA counter-notice before this lawsuit was filed. On October 20, 2008, the Video was restored to YouTube. On January 11, 2009, Savage filed a Motion to Dismiss and OTRN filed its Answer. So far, it appears the disputed facts may include but are not limited to the following: Disputed facts asserted by Brave New Films: a. Whether OTRN or Savage had constructive or actual knowledge that the Video did not infringe any exclusive rights protected by the Copyright Act, 17 U.S.C. § 106 at the time the September 29, 2008 letter was sent. Whether the letter dated September 29, 2008 and sent by OTRN's counsel to YouTube, was done with Savage's actual or constructive knowledge and permission. Whether OTRN or Savage reviewed the Video at issue prior to sending the letter dated September 29, 2008. Whether OTRN or Savage considered whether the fair use doctrine might protect Brave New Films' use of the copyrighted material at issue in the Video.

b.

c. d.

Disputed facts asserted by Defendants: e. Whether counsel for OTRN knew that Savage owned the copyright to the allegedly infringing material contained in the Video, or OTRN knew that material for which Savage owned the copyright was included among the 259 videos that were the subject of the September 29, 2008 letter. 2
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f. g.

Whether Brave New Films was damaged as a result of the conduct alleged in the complaint. Whether Brave New Films filed the Complaint in retaliation for Savage's involvement in Savage v. CAIR and/or to penalize him for his statements in the underlying broadcast in issue. Whether OTRN requested the removal of Plaintiff's videos other than the Video from YouTube. Whether the letter dated September 29, 2008 sent by OTRN's counsel to YouTube, was done with Savage's actual or constructive knowledge or permission or was sent wholly independent of Savage. Whether OTRN has made, is making or will make any further copyright claims with respect to the Video.

h. i.

j.

Legal Issues Agreed upon legal issues: a. b. c. d. Whether Brave New Films infringed any exclusive rights protected by the Federal Copyright Act, 17 U.S.C. § 106. Whether Brave New Films' use of the excerpts from Savage's October 29, 2007 broadcast was a fair use. Whether Brave New Films had an affirmative duty to communicate with Defendants prior to filing this action. Whether California's anti-SLAPP statute, California Code of Civil Procedure Section 425.16, applies to Brave New Films' federal claims for relief. Whether Brave New Films is entitled to a declaratory judgment that the Video does not infringe any copyrights, or any other exclusive right, owned or asserted by OTRN and/or Savage; damages according to proof; attorneys' fees and costs.

e.

Legal issues asserted by Brave New Films include: f. Whether OTRN's September 29, 2008 letter was a knowing and material misrepresentation in violation of 17 U.S.C. § 512(f).

Legal issues asserted by Defendants include: g. Whether the September 29, 2008 letter was a knowing and material misrepresentation in violation of 17 U.S.C. § 512(f) under the subjective good faith standard set forth therein. 3
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h. i.

Whether Savage is properly a party to this action. Whether any injunctive or declaratory relief is appropriate as against OTRN in the absence of any evidence of further claims by OTRN with respect to the Video once OTRN discovered that it relates to the October 29, 2007 broadcast.

Motions Defendant Michael Savage filed a Motion to Dismiss on January 11, 2009. The

hearing is scheduled for March 13, 2009. Additionally, the Parties anticipate filing dispositive motions for judgment on the pleadings, summary judgment or summary adjudication. OTRN currently anticipates filing an early summary judgment motion for hearing on March 13, 2009, or as soon thereafter as possible. Brave New Films anticipates a dispositive motion on the declaratory relief claim may be filed early in the case; summary adjudication or summary judgment on the section 512(f) claim may need to await some discovery. 5. Amendment of Pleadings The Parties do not anticipate amendments to the pleadings at this time. 6. Evidence Preservation All Parties represent that they have taken appropriate steps to ensure that relevant evidence is preserved. 7. Disclosures The Parties anticipate making full and timely disclosures in this matter pursuant to Federal Rule of Civil Procedure 26(a)(1) on January 28, 2009. 8. Discovery There has been no discovery taken to date. The Parties expect to serve document requests and interrogatories and to take relatively few depositions. Third parties may also be subpoenaed. It is too early for the Parties to determine the volume of discovery, particularly with respect to the production of documents. Hence, the Parties have agreed to discuss the specifics relating to the production of documents, including form and timing, once they have a better idea of the volume and types of documents that will be produced. At this time, the Parties 4
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have no reason to believe that the scope of discovery will exceed the limits provided by the Federal Rules. They have agreed, however, to reserve the right to revisit this issue at a later date if determined necessary by one of the Parties. 9. Class Actions This is not a class action. 10. Related Cases There is one related case: Savage v. Council on American-Islamic Relations, Inc., Case No. C 07-6076 SI which has already been ordered Related. See the Related Case Order signed by Judge Illston on December 5, 2008. 11. Relief Sought By The Parties

Brave New Films is seeking: a. Declaratory judgment that it has not infringed any copyrights, or any other exclusive right, owned or asserted by OTRN or Savage. Injunctive relief restraining Defendants from (i) bringing any lawsuit or threatening any legal action relating to the Video, (ii) delivering DMCA takedown notices directed at the Video, or (iii) asserting to any third-party that it has any legal right to interfere with the publication, distribution, performance, display, or licensing of the Video or to interfere with any linking to or from the Video on the internet. Damages according to proof. Attorneys' fees and costs.

b.

c. d.

Michael Savage is seeking: a. Dismissal under Rule 12(b)(6).

OTRN is seeking: a b 12. Judgment against Brave New Films. Attorneys' fees and costs.

Settlement and ADR The Parties have discussed settlement, but were unsuccessful in settling this

matter. The Parties, however, hope to engage in further settlement discussions as the case 5
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progresses. Brave New Films has filed its ADR Certification. OTRN has filed its ADR Certification and Defendant Michael Weiner aka Michael Savage is in the process of filing his ADR Certification. The Parties have filed a Notice of "Need for ADR Phone Conference" pursuant Local ADR Rule 3-5(c)(2) to seek assignment to an Early Settlement Conference with a Magistrate Judge. An ADR Phone Conference is scheduled for January 22, 2009. 13. Consent to Magistrate Judge For All Purposes Brave New Films has declined to proceed before a Magistrate Judge for all purposes in this action. 14. Other References The Parties do not believe that the case is suitable for reference to binding arbitration, a special master or the Judicial Panel on Multidistrict Litigation. 15. Narrowing Issues Issues in this case may be narrowed by Savage's Motion to Dismiss and additional dispositive motions that may be made by the Parties. 16. Expedited Scheduling The Parties do not believe that this is the type of case that can be handled on an expedited basis with streamlined procedures. 17. Scheduling Brave New Films' Proposed Scheduling Fact Discovery Cutoff Opening Expert Reports Expert Rebuttal Reports Dispositive motions filed by Expert Discovery Cutoff Pretrial Conference Hearing on Dispositive Motions Trial June 30, 2009 July 31, 2009 August 31, 2009 September 16, 2009 September 30, 2009 November 17, 2009 November 20, 2009 December 7, 2009 6
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Defendants' Proposed Scheduling July 31, 2009 August 31, 2009 September 30, 2009 October 31, 2009 October 31, 2009 December 16, 2009 December 18, 2009 January 5, 2010
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18.

Trial Brave New Films has requested a jury trial. The Parties estimate the length of

trial to be approximately 2-4 full court days. 19. Disclosure of Non-Party Interested Entities or Persons All Parties have filed their Disclosure of Interested Entities or Persons pursuant Civil Local Rule 3-16. Brave New Films and Savage reported that there are no parties, other than the named parties, with an interest in this case. OTRN identified Talk Radio Network, Inc., a Delaware corporation, as a third party that may have some interest in the outcome of this proceeding. 20. Other Matters

Counsel for OTRN and Savage, Benjamin Aaron Shapiro, has been admitted to practice in the Northern District. Shapiro advises that a request may be made to add Ronald H. Severaid, who is an attorney licensed to practice before all courts of the State of California and admitted to practice before the Eastern District and the Central District, as co-counsel for one or both defendants once Severaid is admitted to practice in the Northern District.

Dated: January 22, 2009 BINGHAM McCUTCHEN LLP

Dated: January 22, 2009

By: ____/s/ William F. Abrams____________ William F. Abrams Attorneys for Plaintiff Brave New Films, 501(c)(4)

___/s/ Benjamin Aaron Shapiro_______ Benjamin Aaron Shapiro Attorney for Defendant The Original Talk Radio Network, Inc. and Defendant Michael Weiner

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CERTIFICATION BY SHEILA M. PIERCE PURSUANT TO GENERAL ORDER NO. 45, SECTION X. RE E-FILING ON BEHALF OF MULTIPLE SIGNATORIES 1. I am a lawyer licensed to practice law in the State of California, and am an

associate in the law firm of Bingham McCutchen LLP, counsel for Plaintiff Brave New Films 501(c)(4). The statements herein are made on my personal knowledge, and if called as a witness I could and would testify thereto. 2. The above e-filed document contains multiple signatures. I declare that

concurrence has been obtained from each of the other signatories to file this jointly prepared document with the Court. Pursuant to General Rule No. 45, I shall maintain records to support this concurrence for subsequent production for the Court if so ordered, or for inspection upon request by a party until one year after final resolution of the action (including appeal, if any). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct on January 22, 2009.

/s/ Sheila M. Pierce Sheila M. Pierce

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