Eight Mile Style, LLC et al v. Apple Computer, Incorporated

Filing 108

Amended MOTION to Strike 79 Statement, 74 Response to Motion,,,,,,,,,,,,, by Aftermath Records, Apple Computer, Incorporated. (Attachments: # 1 Index of Exhibits to Corrected Motion to Strike, # 2 Exhibit Declaration of Melinda LeMoine, # 3 Exhibit 1-A Excerpts from Deposition of Patrick Sullivan, # 4 Exhibit 1-B E-Mail from DeSalvo to Sullivan dated Aug. 27, 2008, # 5 Exhibit 1-C Email from DeSalvo to Sullivan dated August 20, # 6 Exhibit 1-D Eight Mile Style's Responses to First Set of Interrogatories, # 7 Exhibit 1-E Martin Affiliated's Responses to First Set of Interrogatories, # 8 Exhibit 1-F Eight Mile Style's Responses to First Set of RFPs, # 9 Exhibit 1-G Martin Affiliated's Responses to First Set of RFPs, # 10 Exhibit 1-H Eight Mile Style's Responses to Second Set of RFPs, # 11 Exhibit 1-I Martin Affiliated'd Responses to Second Set of RFPs, # 12 Exhibit 1-J Eight Mile Style's Responses to Second Set of Interrogatories, # 13 Exhibit 1-K Martin Affiliated's Responses to Second Set of Interrogatories, # 14 Exhibit 2 - Anderson v. United States) (Lemoine, Melinda)

Eight Mile Style, LLC et al. v. Apple Computer Inc., et al. Case No. 2:07-CV-13164

EXHIBIT 1-A Excerpts of transcript pages from the depositions of Patrick Sullivan taken on September 18, 2008 and October 1, 2008

5005843.1

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ---------------------------x EIGHT MILE STYLE, LLC and MARTIN AFFILIATED, LLC, ) )

Plaintiffs,) vs. APPLE COMPUTER, INC. and AFTERMATH RECORDS d/b/a AFTERMATH ENTERTAINMENT, )Case No. 2:07-cv-13164 )Hon. Anna Diggs Taylor ) )

Defendants.) ---------------------------x September 18, 2008 10:12 a.m.

Deposition of PATRICK SULLIVAN, held at the law offices of Jenner & Block, 919 Third Avenue, New York, New York, pursuant to subpoena, before Anita T. Shemin, CSR and Notary Public within and for the State of New York.

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Patrick F. Sullivan not going to allow you to do that. it is not vague and ambiguous. I am asking you whether you mean to say does the license on its face say it covers DPD and physical. Is that what you are meaning to say rather than being vague and ambiguous in your questioning? BY MR. KLAUS: Q Universal. I am asking you, Mr. Sullivan, do you Do you know whether Universal Music know whether EMI Music -- let me go back to obtains licenses from music publishers where the rights granted include both physical and DPD rights -MR. BUSCH: Q Same objection. Do you know one -- in the same license? I have a right to ask you to clarify it so

way or the other whether they have such agreements? A Q In my industry experience, no. What is your industry experience of

knowing what licenses Universal Music has from music publishers? A I know from working at the Harry Fox

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Patrick F. Sullivan Agency, they would license directly through Harry Fox and the non-Fox members, and they licensed thousands of songs for DPDs. Q Fox. Do you have any understanding of the licenses -- do you have any understanding of what types of licenses Universal Music obtains from music publishers -MR. BUSCH: Q A licenses. Q Besides those licenses that you have seen in this case and your experience at Harry Fox, do you have any understanding what licenses Universal obtained from music publishers? A Q A From industry experience. What is your industry experience of the In conversations speaking to publishers Same objections. -- in your industry experience? The only thing I have is purported We will come back -- set that aside. We will come back to Harry Fox, but set aside Harry

licenses that they claim in this case are

licenses that Universal Music obtains? I work with, friends when they request licenses,

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Patrick F. Sullivan Universal, EMI Records, Warner, type of licenses they request, so -Q than that? A Q A side? Q right? A Q clients? A Q Yes. Do you have any understanding of the One of my clients. On the record side, they are one of your Major music label, EMI is one of them, No. Okay. EMI Music, do you know -- EMI Record side or publishing Can you recall anything more specific

Music is not one of the music majors, correct? It depends.

types of licenses that EMI music obtains from music publishers? A Q A Q Again, in my industry experience, yes. What is that experience based on? Talking to publishers that issue Do you know one way or the other whether

licenses to EMI Records. EMI Music has licenses from publishers that

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Patrick F. Sullivan covered both mechanical and DPD rights? MR. BUSCH: Same objection. You are purposely being ambiguous and vague in your question about the word cover. Are you saying that they are licenses that say on their face that it is DPD and physical? that question. phony record. Q I am using it as you do on Page 8 in I am asking you your bullet point, Mr. Sullivan. based on the way you use it there. A Q Which bullet point? The first bullet point, in fact, under Do you know one way or another whether EMI Music has any agreements with any music publishers that covered both, that cover mechanical and DPD rights? MR. BUSCH: Same objection. You are also purposely excluding the first sentence, which puts the sentence that you are using in context, which says You refuse to ask him I understand why, but I

am not going to allow you to create a

"Typical terms of a privately negotiated license."

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Patrick F. Sullivan "The license, whether it be mechanical or DPD, is only applicable for that specific use." So once again, I ask you to clarify whether you are asking him whether there could be a license that can say on its face that it is for digital and for mechanical, but you refuse to ask that question. BY MR. KLAUS: Q Let me ask you that question. Have you ever seen an agreement that covers both digital and physical uses? A Q Not that I have seen. Okay. So with that, your understanding

you have testified to, isn't it correct that they are separate -- your understanding is they are always separate? A Q In all of the publishers I have dealt Thank you. Let me ask you the question with respect to EMI Music. Do you know one way or another whether EMI Music has any agreement with any music with, they are separate licenses.

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Patrick F. Sullivan publishers where the license is applicable for both mechanical and DPD rights? A Q A Q A Q A Q I wouldn't be privy to that information. But you know what Sony BMG is, right? Tell me what it is. Tell me what it is. Let me know. Let me ask you this -I am well aware of Sony BMG. Sony BMG is one of the four music Correct. Do you know whether Sony BMG has

majors, correct?

licenses with music publishers that are applicable wherein the same license is applicable both to mechanical and DPD? another? MR. BUSCH: A Same objection. I am not privy to Sony BMG licensing, I am not sure they cover Do you know one way or

although the publishers that I do work with do issue licenses to them. Q A Q DPD and mechanical licenses, but I doubt it. But you don't know one way or the other? I am not privy to that information. The Warner Music Group, they are the

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Patrick F. Sullivan last of the music majors, right? Do you know whether Warner Music has licenses with music publishers that are applicable to both mechanicals and DPDs? A Q I am not privy to that information, so I All right. The third bullet point on do not know. Page 8, do you see that where it says "The physical license will often state the number of units to be manufactured"? A Q A Q There is multiple bullet points. I am reading down the list of typical Yes. Do you see you say "The physical license Do you see that? Which music publishers, to your

terms of a privately negotiated license.

will often state the number of units to be manufactured"? A Q units? A Harry Fox Agency, the world's largest mechanical rights licensing agent, specifies very clearly on their website. Okay. Correct.

knowledge, insist on specifying the number of

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Patrick F. Sullivan Q A Q Besides Fox? Fox is 65 percent of the market. I fully appreciate that, but let me ask

you -- we will get into detail after lunch about Harry Fox, I promise. A Q A Q A I am looking forward to that. But I want to -- I want to ask you Yes. -- which publishers insist on specifying I can't tell you the publishers' names,

besides Harry Fox --

the number of units? but quite a few in the industry practice of licensing will state not only 2,500 units will ask for advances as well. Q A Q A Q A Q Can you recall the names? I can't recall any. I would have to

look -- I would have to look at licenses. The next one is the license term? Yes. Do you see that? Yes. "DPD licenses will often have a term of

three to five years"?

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Patrick F. Sullivan A Q A Yes. Which publishers, to your knowledge, Not to name confidential information on

insist on having terms with a DPD license? publishers, but the majority have a term of three years that I have come across in my industry experience. Q years? A I would have to look at the contracts, but after licensing and doing it for so long, it is around three years. Q A But you can't tell me any publisher? I would have to look, and it is Which ones have a term of three to five

confidential information between my previous clients, so -Q A Q All right. No. No. But do you have access to that information? So is it the case that without looking

at the records of your prior employer, you couldn't answer that question? A For specifics -- well, define that question a little broader. MERRILL LEGAL SOLUTIONS

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Patrick F. Sullivan Q Let me make sure we are clear here. I am asking you if you could tell me which music publishers require a term of three to five years in their contracts. far? A Q I understand. Okay. And I asked you if you could name Are we on the same page so

who those music publishers are who do that, and your answer is? A I would be disclosing confidential information between my prior client, the Orchard, and eMusic and the publishers. Q To make sure we are clear, as we sit here, do you have a recollection of who those former clients are? A Q No. Is the only way you could refresh your

recollection on that to go and look at records that are no longer in your possession? A Q Yes. Okay. Yes. Besides the work that you have

done in connection with your former employer that you have no way -- it sounds like you have no way of recalling who they are, can you tell me any

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Patrick F. Sullivan other music publishers you are aware of who insist on a term of three to five years? A Q Not that I recall. I would have to look at the contracts. Do you know whether any of the music majors -- the four music majors we discussed earlier, do you know whether any of them enter into agreements with music publishers where there is a term of three to five years? A to. Q A Why do you say they would have to? Because the publisher controls that I wouldn't be privy to that information, but my experience, they have to -- they would have

right, and they can dictate and negotiate that term, and in my experience, three to five years is what publishers look for. Q A It sounds like they negotiated that term No. The Orchard would take on major The licenses with eMusic and Orchard, correct? cases responsibility after the fact. eMusic or the Orchard. Q But those are licenses that were

were negotiated prior to being distributed through

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Patrick F. Sullivan negotiated between -A Q correct? A anymore. I don't know who you call independent Those independents are now majors, and I don't know if you The record company. -- independent record companies,

the majors -- I don't know.

can sit here and tell me they are majors anymore, but the independent major record companies. Q Are you aware of Universal Music ever entering into the license for a composition right for a limited term? MR. BUSCH: A Q A Q A Q A He beat me to it. He always does. I am aware with this case, yes. You are aware? Well -The -I am aware with -- Universal Music Group We did That We know of one.

has -- yes, I am aware of the Orchard.

distribute Universal Record artists as well.

artist would have entered into a DPD license which we didn't obtain, Universal would have obtained.

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Patrick F. Sullivan Q A Q A And that is the back catalog material? Actually, a front line artist. Who was the artist? I have got to remember. A pretty I It is a Hip Hop artist. In that

case, it was a front line.

prominent artist.

can't recall the name, but it was one -- it was a pretty prominent Hip Hop artist that went through the Orchard at my time. Q A Q A Distributed on the Universal label? Yes, Universal distributed label. And Universal had an agreement with the They would have -- they stated in our

music publisher? agreement they had the rights to distribute that musical composition through some sort of license, but we weren't privy to that. Q Do you know whether Universal Music's license with the music publisher for that Hip Hop artist that you distributed had a term? A Q I wasn't privy to that information. Are you aware of any other information

where Universal Music has ever entered into a license for DPDs that has a limited term? MERRILL LEGAL SOLUTIONS

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Patrick F. Sullivan A Q Could you rephrase that? Is that with the Orchard and eMusic or outside? Anywhere in the world, are you aware of Universal Music ever entering into a DPD license that contained a term? A Q A I think you have to ask Universal that. Are you aware of that? Other than seeking publishers that issue Based upon

licenses that have terms of three years, I am not aware of directly what they have done. the same terms. Q Has any huge music publisher ever told you that they have an agreement with Universal Music that has a limited term for DPD rights? A Q A Q a term? A I would not be privy to that information. No. I never asked that question. Let me ask you with respect to Warner Yes. Do you know whether Warner Music Group my experience, they would be licensing Universal

Music Group.

has ever entered into a license with DPD that has

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Patrick F. Sullivan Q A Q Do you know whether Sony BMG ever Repeat that question. Sure. Are you aware whether Sony BMG has ever entered into a license with a music publisher that has a term? A Q I wouldn't be privy to that. The same question with respect to EMI, entered into a license that has a music term?

do you know whether they have ever entered into an agreement with a music publisher that has a term? A Q Excuse me, I wouldn't be privy to that Let me ask you, if you would, a couple information. of last questions on these typical terms of a privately negotiated license. Do you see the next to the last bullet point in that second set of bullet points, it says that for physical licenses, royalties are paid based on units sold, not based on units made, manufactured and distributed"? A Q A Yes. Has that been true in your experience? It varies. Do you see that?

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Patrick F. Sullivan Q Do you think it is common or uncommon for royalties to be paid on units sold and not made or manufactured for physical licenses? A Q A Q It depends on the label. Is it true that free goods and Oh, it depends on the label. Is it -- let me -- is it the case that

promotional units are not royalty bearing?

free goods and promotional units often are not royalty bearing? A they are. Q not? A Q A lawyer. Q A Q A Q Have you ever attended law school? No. Ever taken any legal courses? Could you define legal course? Any class that covered the subject of MERRILL LEGAL SOLUTIONS I would say 50/50. Are you a lawyer? No, I am not an attorney. I am not a You characterize it as often, they are In some of the agreements that we enter into, they are not royalty bearing, and in some,

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Patrick F. Sullivan law? A Q A industry. Q A Q A Q A Q A Q A Q A Where? Ethical issues in the music industry, When did you take that? All during my tenure at New York As -- was that as an undergraduate? A Master's degree. Okay. Yes. Which ones? I am sorry? Textbooks, treatises, scholarly works? I have read Nimmer on Copyright Law, I As part of your work, have you Yes. What class is that? I think the legal issues of music

contract law.

University.

studied legal texts or treatises?

have read the Copyright Law Section 115 and pretty much all of the statute of copy law. Q the law? Do you consider yourself an expert on

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Patrick F. Sullivan A Q A No. What is RightsFlow? RightsFlow is an LLC New York based

company, professional services and outsource licensing music company, and we are an agent that act on behalf of over 800 record companies to obtain DPD licenses on their behalf. The company services EMI Music for our professional services arm; Musak, which is the largest retail background and service music in the United States; Lime Wire, Constellation Wine, Wine Italia. We serve quite a bit of companies, everyone from Audible Magic to Fox Interaction, which owns MySpace. Q A Q Do you do exclusively DPD licensing? No. What do you mean by exclusive? Does any part of your work consist of obtaining license rights for physical distribution of product? A In the past, yes. For RightsFlow today, no, but we are in that business offering -- we are offering that. Q So you will obtain mechanical licenses

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Patrick F. Sullivan 12th? A Q at -MR. KLAUS: 240. (Opposition to Summary Judgment marked Exhibit 240 for identification.) BY MR. KLAUS: Q Exhibit 240, is it a true and correct copy of your Declaration in Opposition to the Summary Judgment motion, sir? A Q A Q copy? A the phone. Q I believe we might have had something on I don't recall. Do you recall ever receiving an e-mail Yes. Did you draft this Declaration? This was done by Ramona DeSalvo. Did she send you any drafts of this Mark this as Exhibit I don't recall. Okay. I would ask you to take a look

Declaration, or did she just send you the final

from her with a copy of this before this was put in front of you for signature? A Yes.

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Patrick F. Sullivan this case are denominated Eminem compositions change your understanding as to whether Eminem wrote compositions or not? A State that again. MR. KLAUS: Exhibit 242. A Is the question that you are asking -MR. BUSCH: question. He withdraw the There is no question pending. Okay. Are your okay? Yes. Withdraw it.

How are you feeling? THE WITNESS: MR. BUSCH: THE WITNESS:

(Exhibit 2 to the Declaration of Mr. Sullivan marked Exhibit 242 for identification.) BY MR. KLAUS: Q case, sir? A Q A Q Yes. Did you prepare Exhibit 242? No. Who prepared it? Is this Exhibit 242 the exhibit that you attached as Exhibit 2 to your Declaration in this

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Patrick F. Sullivan A Q A Q Ramona, I believe. Did you have any input into Exhibit 242? After looking at the agreements, yes. What in Exhibit 242 did you tell

Ms. DeSalvo to change or do differently after having looked at the agreements? MR. BUSCH: question. did he review? A That is a different Just note my objection. Did you have input meaning

Just go ahead. After reviewing the licenses that -- the mechanical licenses that were sent forth to me, we identified -- as we stated here, there is no mention of DPD, so we went through each one of those. Q Okay. Do you recall making any changes Did you to the chart that Ms. DeSalvo sent you? A Q A Q

ask her to make any changes to that chart? We went closely through each one. And you didn't find any mistakes in what Not to my knowledge, no. All right. MR. KLAUS: Let me mark this as

she had done?

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DISTRICT

EIGHT MILE STYLE, LLC and MARTIN AFFILIATED, LLC, Plaintiffs, vs. APPLE COMPUTER, INC. and AFTERMATH RECORDS d/b/a AFTERMATH ENTERTAINMENT, Defendants.

) ) ) Case No. ) 2:07-CV-13164 ) Volume 2 ) (Pages 271-542) ) )

---------------------------)

CONTAINS ATTORNEYS' EYES ONLY INFORMATION

VIDEOTAPED DEPOSITION OF: PATRICK SULLIVAN WEDNESDAY, OCTOBER 1, 2008 11:09 A.M.

REPORTED BY: SUSAN NELSON C.S.R. No. 3202

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"unauthenticated"? A. Q. A. Q. Yes. What does that mean? Not authentic. What does that mean? MR. BUSCH: THE WITNESS: that -MR. BUSCH: that -THE WITNESS: else wrote this, so. BY MR. KLAUS: Q. A. Q. A. It's your Exhibit 2. I -What does that -- what is that -I -- I didn't write -- I can't speculate on What does it -I don't write this. Someone That -- if someone else wrote If you know. Don't speculate.

Yeah, don't -- no, I -- yeah,

what it means, so. Q. We'd have to have Miss DeSalvo to ask what

that means? MR. BUSCH: I think you know what auth- -Do you think we

"unauthenticated" means, Mr. Klaus.

need Miss DeSalvo to come testify about what the word "unauthenticated" means, or "produced late"? BY MR. KLAUS:

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Q.

How does -- how does unau- -- how does

whether or not that agreement was authenticated, does that have any effect on any -A. Q. I --- opinion you've offered? MR. BUSCH: THE WITNESS: BY MR. KLAUS: Q. Does it have any effect on any opinion Object to form. I can't answer that question.

you've offered, "yes" or "no"? A. Q. A. Q. you? A. Q. A. Q. A. I can't speculate, so. Do you see where it says "produced late"? Yes. What does that mean? I can't -- I can't authenticate that and I I didn't write it, so. I can't answer that. Why not? I didn't write that. Okay. You have no idea with that means, do

can't verify it. Q.

The next column over says inapplicable, D-12

album, Devil's Night. Do you see that? A. Yes.

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