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

Filing 140

MOTION in Limine No. 4 to Exclude Testimony of Steven Marks by Eight Mile Style, LLC, Martin Affiliated, LLC. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Declaration of Marc Guilford, # 3 Exhibit A - Subpoena served on the HFA, # 4 Exhibit B Email from Kelly Klaus to Richard Busch, # 5 Exhibit C - FILED UNDER SEAL) (Busch, Richard)

EXHIBIT A to DECLARATION OF MARC GUILFORD

EXHIBIT A

EXHIBIT A DEFINITIONS AND INSTRUCTIONS 1. "Eight Mile Style" means Plaintiff Eight Mile Style, LLC and any of its

predecessors, successors, parents, subsidiaries, divisions, affiliates, or other entities under common operation or control, and any of their respective present or former officers, directors, employees, agents and advisors. 2. "Martin Affiliated" means Plaintiff Martin Affiliated, LLC and any of its

predecessors, successors, parents, subsidiaries, divisions, affiliates, or other entities under common operation or control, and any of their respective present or former officers, directors, employees, agents and advisors. 3. "Eminem" refers to Marshall B. Mathers III and any of his agents, employees,

representatives, attorneys, auditors, accountants, or other professionals or experts. 4. 5. 6. 7. "Apple" refers to Apple Inc. "Aftermath" refers to Aftermath Records d/b/a Aftermath Entertainment. "Defendants" refers collectively to Apple and Aftermath. "Eminem Compositions" refer to the works identified by Plaintiffs as the

compositions at issue in this litigation, which is provided for Your reference as a Schedule 1 at the end of this Exhibit A. 8. The "Eight Mile Style Litigation" refers to this action pending in the Eastern

District of Michigan. 9. "You," "Your," or "HFA" refers to the Harry Fox Agency, and any of the Harry

Fox Agency's predecessors, successors, parents, subsidiaries, divisions, affiliates, or other entities within its operation or control, and their respective present or former officers, directors, employees, agents and advisors. 10. "RIAA-NMPA-HFA Agreement" refers to the October 5, 2001 Agreement -18348393.1

between the Recording Industry Association of America, Inc. (RIAA) on the one hand and the National Music Publisher's Association (NMPA) and HFA on the other, related to the licensing of musical compositions for Digital Distribution. 11. "Person" means any natural individual, governmental entity or business entity,

including a corporation or partnership, association, joint venture, co-venture, or other entity, or any combination thereof, and all corporations, divisions or entities affiliated with, owned or controlled directly or indirectly by any such entities, as well as the directors, officers, employees, agents, attorneys or other representatives thereof, or third parties retained or employed by any of the above. 12. "Digital Distribution" means any distribution of sound recordings (in whatever

form, including but not limited to albums, singles, ringtones, mastertones, etc.) via any electronic means, including the distribution of permanent downloads, conditional downloads, by streaming service or otherwise. 13. Where documents are requested, You are required to produce all documents in the

possession, custody or control of You or Your partners, agents, employees, representatives, attorneys, auditors, accountants, or other professionals or experts. 14. A request for a document shall be deemed to include a request for any and all

transmittal sheets, cover letters, exhibits, enclosures, or attachments to such document, in addition to the document. 15. You shall produce responsive documents as they have been kept in the usual

course of business or shall organize and label them to correspond to these enumerated requests. In either case, documents contained in file folders, loose-leaf binders and notebooks with tabs or labels identifying such documents are to be produced intact with such file folders, loose-leaf binders, or notebooks. In producing documents, all documents that are physically attached to each other shall be left so attached. Documents that are segregated or separated from other -28348393.1

documents, shall be left so segregated or separated. 16. You shall produce electronically stored information as follows: a. Email: In single page TIFF images with Optical Character Recognition ("OCR"), and with related, extracted text and associated metadata (for example, but not limited to, date, time, to, from, cc, bcc fields, internal path showing mail "folder" names, and source custodian name) in a Concordance load file format with Opticon image cross reference file, indicating beginning and ending pages of each message and each attachment, with attachments identified so as to enable the undersigned issuing attorneys to electronically identify their parent e-mails and with records for which you request special treatment (such as confidential records) identified with field flags; b. E-files, such as Microsoft word documents, Adobe Acrobat pdf's, Excel or other spreadsheet files: in single page TIFF images with OCR, and with related, extracted text, with tracked changes, and associated metadata (for example, but not limited to, date last modified, date created, author, file type [e.g., .doc or .xls], full file path, and source custodian name) in a Concordance load file format with Opticon image cross reference file, indicating beginning and ending pages of each document, with records for which you request special treatment (such as confidential records) identified with field flags, and, the same for Excel and spreadsheet files, so long as the image to be produced communicates all essential substance of the spreadsheet workbooks, including but not limited to essential formulas and hidden data, but if such information is not available in the TIFF image, we request native production of Excel and spreadsheet files; and c. Databases: native format or exported to a standard output file type which preserves data content and is readable by other common applications (e.g., Access or SQL). If any electronically stored information is produced in a form that is not reasonably useable by -38348393.1

the undersigned, the undersigned reserves the right to request that such electronically stored information be delivered in different form so that it is reasonably useable, including, but not limited to, native form. 17. The singular form of the word should be interpreted as plural wherever necessary

to bring within the scope of the request any information that might otherwise be construed to be outside its scope. 18. The words "and" and "or" should be construed either disjunctively or

conjunctively where necessary to bring within the scope of the request any information that might otherwise be construed to be outside its scope. 19. If no documents are responsive to a particular request, You should state that no

responsive documents exist. 20. Any document responsive to a request that You do not produce by reason of a

claim of privilege or otherwise, shall be identified in writing as follows: A. B. C. State the general subject matter; State the date the document was prepared and the date it bears; Identify each Person who wrote, signed, initialed, dictated, or otherwise

participated in the preparation of the document; D. Identify each Person to whom the document was addressed and each

Person to whom the original or a copy of the document was sent; E. document; F. Identify each Person referred to in the immediately preceding Identify each Person who has custody of the original or a copy of the

subparagraphs C, D, and E by stating his or her full name, job title, and business address, both currently and at the time he or she first had any involvement with the document; and G. State the privilege or immunity asserted. -48348393.1

TOPICS ON WHICH TESTIMONY SHALL BE GIVEN TOPIC NO. 1 Licenses issued by or through HFA for any of the Eminem Compositions, including but not limited to the documents attached hereto as Exhibit B.

TOPIC NO. 2 Communications regarding the Eight Mile Style Litigation between HFA on the one hand, and/or Eight Mile Style, Martin Affiliated, and/or any of their representatives or members, including Joel Martin, Jeff Bass, Mark Bass, Mark Levinsohn, Richard S. Busch, or Marc Guilford.

TOPIC NO. 3 Your particular practices and policies regarding the licensing of musical compositions for Digital Distribution, including but not limited to the licensing of musical compositions embodied in sound recordings distributed in permanent download form.

TOPIC NO. 4 The following excerpt from the HFA website, including but not limited to whether the statement accurately describes the policy of the HFA and, if so, during what time period: "Q If I receive a mechanical license for a digital configuration from HFA, is that all I need? A HFA licenses cover the rights to make and distribute recordings of musical compositions. HFA licenses do NOT cover the use of existing sound recordings. Such "master

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rights" in existing sound recordings must be directly cleared with the appropriate copyright owner, usually a record company (label). Additionally, please note that HFA may not represent all of the publishers on a given song. Therefore, the license you receive from HFA will only cover the percentage that is HFArepresented. You will need to obtain a mechanical license directly from any additional publishers that are not represented by HFA." See http://www.harryfox.com/public/infoFAQDigitalLicensing.jsp

TOPIC NO. 5 The following excerpt from the HFA website, including but not limited to whether the statement accurately describes the policy of the HFA and, if so, during what time period: "4. The HFA licensing percentage is not 100%. Why? What does that mean? This means that HFA does not represent 100% of the rights to this song. HFA may not represent one of the publishers that has partial ownership, or HFA may not be authorized to license this format. If HFA licenses part of the song, you can complete your licensing transaction through Songfile for the percentage of the song that HFA represents. To obtain a license for the remaining percentage, or for a song that is not represented by HFA for this format, you will need to contact the publisher directly. It is your responsibility to obtain licenses from each publisher that owns part of the song so that you are licensed for 100% of the song. If you are not licensed for 100% of the song, you could be liable for infringement. You can use the Songfile Public Search to find information on this publisher, or use the databases at the following websites: http://www.ascap.com http://www.bmi.com -68348393.1

http://www.sesac.com http://www.copyright.gov/" See http://www.harryfox.com/songfile/faq.html#faq3

TOPIC NO. 6 All documents produced in response to this Subpoena. REQUESTS FOR PRODUCTION REQUEST NO. 1 Any and all documents referring to, discussing, describing or analyzing the policies or practices of HFA relating to the licensing of musical compositions for Digital Distribution, including but not limited to whether a license for a percentage share of a composition entitles the licensor to distribute the whole.

REQUEST NO. 2 All documents referring to, discussing, describing or analyzing the issues encompassed by the excerpts from the HFA website in Topics 4 and 5 above.

REQUEST NO. 3 All documents referring to the RIAA-NMPA-HFA Agreement, and any change in HFA licensing policy relating to the RIAA-NMPA-HFA Agreement or implemented since the inception or expiration of that agreement.

REQUEST NO. 4 All communications regarding the Eight Mile Style Litigation between HFA on the one hand, and/or Eight Mile Style, Martin Affiliated, and/or any of their representatives or members, -78348393.1

including Joel Martin, Jeff Bass, Mark Bass, Mark Levinsohn, Richard S. Busch, or Marc Guilford.

REQUEST NO. 5 All licenses issued by or through HFA relating to the Eminem Compositions.

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SCHEDULE 1 - "EMINEM COMPOSITIONS"
COMPOSITION TITLE 40 OZ 6 In the Morning 8 Mile 8 Miles & Running American Psycho 2 Ass Like That Average Man Big Weenie Bitch Business Cheers Cleaning Out My Closet Cleaning Out My Closet Crazy In Love Curtains Close Curtains Up Curtains Up Don't Come Down Don't Push Me Drips ALBUM TITLE D12 WORLD D12 WORLD 8 Mile S/T 8 Mile S/T D12 WORLD Encore (Deluxe Version) Cheers Encore (Deluxe Version) D12 WORLD The Eminem Show Cheers The Eminem Show Curtain Call - The Hits (Deluxe Version) Encore (Deluxe Version) Encore (Deluxe Version) The Eminem Show Encore (Deluxe Version) Cheers Get Rich or Die Trying The Eminem Show
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REGISTRATION NUMBER PA 1-245-114 PA 1-245-103 PA 1-204-555 PA 1-204-569 PA 1-325-368 PA 1-295-394 PA 1-245-073 PA 1-295-392 PA PA PA PA 1-245-115 u 2-696-276 1-245-074 1-073-403

PA 1-073-403 (COHM) PA 1-295-397 PA 1-295-390 PA u 2-673-526 PA 1-295-387 PA 1-245-078 PA 1-204-560 PA 1-104-808

COMPOSITION TITLE Dude Em Calls Paul Encore Evil Deeds Final Thought Follow My Life Gatman And Robbin Get My Gun Git Up Got Some Teeth Guilty Conscience

ALBUM TITLE D12 WORLD Encore (Deluxe Version) Encore (Deluxe Version) Encore (Deluxe Version) Encore (Deluxe Version) Cheers The Massacre D12 World

REGISTRATION NUMBER PA 1-245-084 PA 1-295-393 PA 1-295-406 50 PA 1-295-402 PA 1-295-389 PA 1-245-107 PA 1-364-299 PA 1-245-109 PA 1-245-111 PA 1-245-108 PA 954-422 (COHM)

D12 World Cheers Curtain Call - The Hits (Deluxe Version) Hailie's Song The Eminem Show Hands On You Cheers High All The Time Get Rich or Die Trying Hoodrats Cheers How Come D12 World I'm Supposed To Die The Massacre Tonight Just Don't Give a Curtain Call - The Fuck Hits (Deluxe Version) Just Lose It Encore (Deluxe Version)
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PA u 2-725-252 PA 1-245-080 PA 1-204-559 PA 1-245-106 PA 1-245-112 PA 1-364-300 PA u 2-333-090

PA 1-268-078

COMPOSITION TITLE Keep Talkin' Lady Leave Dat Boy Alone Like Toy Soldiers Lose Yourself Lose Yourself (Parody done by Weird Al "Couch Potato") Love Me Love You More Loyalty Many Men (aka Death Wish) Mockingbird Mosh My 1st Single My Band My Dad's Gone Crazy Never Enough Never Forget Ya On Fire

ALBUM TITLE D12 World Cheers D12 World Encore (Deluxe Version) 8 Mile S/T Poodle Hat

REGISTRATION NUMBER PA 1-245-110 PA 1-245-102 PA 1-245-085 PA 1-295-400 PA 1-152-688 PA 1-152-688

8 Mile S/T Encore (Deluxe Version) D12 World Get Rich or Die Trying Encore (Deluxe Version) Encore (Deluxe Version) Encore (Deluxe Version) D12 World The Eminem Show Encore (Deluxe Version) Cheers Hunger for More
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PA 1-204-567 PA 1-295-408 PA 1-245-104 PA 1-204-558

PA 1-295-396 PA 1-295-401 PA 1-295-405 PA 1-245-105 PA u 2-697-183 PA 1-295-403 PA 1-245-101 PA 1-256-131

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COMPOSITION TITLE One Shot, 2 Shot Outro Patiently Waiting Paul Places To Go Puke Rabbit Run Rain Man Rap Game Ricky Ticky Toc Role Model

ALBUM TITLE Encore (Deluxe Version) Cheers Get Rich or Die Trying Encore (Deluxe Version) 8 Mile S/T Encore (Deluxe Version) 8 Mile S/T Encore (Deluxe Version) 8 Mile S/T Encore (Deluxe Version) Curtain Call - The Hits (Deluxe Version) The Eminem Show The Eminem Show Cheers Curtain Call - The Hits (Deluxe Version) The Eminem Show

REGISTRATION NUMBER PA 1-295-398 PA 1-245-076 PA 1-204-561 PA 1-295-388 PA 1-204-556 PA 1-295-404 PA 1-204-568 PA 1-295-391 PA 1-204-570 PA 1-295-409 PA 954-427 (COHM)

Say Goodbye To Hollywood Say What You Say Shit Hit's The Fan Shit On You

PA 1-104-945 (COHM) PA 1-073-017 PA 1-245-077 PA 1-164-487 (COHM) PA 1-104-947 (COHM) PA 1-073-064 (COHM)

Sing For The Moment Again Soldier

The Eminem Show

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COMPOSITION TITLE Spend Some Time Spit Shine Spread Yo Shit

ALBUM TITLE Encore (Deluxe Version) 8 Mile S/T Cheers

REGISTRATION NUMBER PA 1-295-395 PA 1-204-557 PA 1-245-081

Square Dance

The Eminem Show

Steve Berman (Skit) The Eminem Show Steve's Coffee D12 World House Superman The Eminem Show The Kiss The Eminem Show The Real Slim Shady Curtain Call - The Hits (Deluxe Version) Till I Collapse The Eminem Show Till The End Hunger for More Warrior part 2 Hunger for More We All Die One Day Cheers We As Americans Encore (Deluxe Version) When the Music The Eminem Show Stops Without Me The Eminem Show Without Me Curtain Call - The Hits
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PA 1-073-065 (COHM) PA u 2-697-161 PA 1-245-086 PA 1-073-066 PA u 2-782-860 PA 980-855 (COHM)

PA PA PA PA PA

u 2-697-181 1-256-130 1-256-133 1-245-075 1-295-407

PA 1-073-063 (COHM) PA 1-073-070 (COHM) PA 1-073-070 (COHM)

COMPOSITION TITLE

ALBUM TITLE (Deluxe Version) Curtain Call - The Hits (Deluxe Version) Encore (Deluxe Version)

REGISTRATION NUMBER PA 1-153-337 (COHM) PA 1-295-399

Without Me

Yellow Brick Road

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