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

Filing 143

MOTION in Limine No. 2 by Aftermath Records, Apple Computer, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Abrams Transcript Excerpts, # 3 Exhibit 2 - Statement (Filed Under Seal), # 4 Exhibit 3 - Abrams Report, # 5 Exhibit 4 - Report (Filed Under Seal), # 6 Exhibit 5 - Amended Final Judgment, # 7 Exhibit 6 - Levinsohn Transcript Excerpts, # 8 Exhibit 7 - Plaintiffs Expert Disclosures) (Lemoine, Melinda)

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

EXHIBIT 1 Excerpt of transcript pages from the Deposition of Howard Abrams taken on October 8, 2008

5005843.1

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UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

EIGHT MILE STYLE, LLC and MARTIN AFFILIATED, LLC, Plaintiffs, vs. Case No. 2:07-CV-13164 Hon. Anna Diggs Taylor Magistrate Judge Donald A. Scheer APPLE COMPUTER, INC. and AFTERMATH RECORDS d/b/a AFTERMATH ENTERTAINMENT, Defendants. _____________________________________

The Videoconference and Videotaped Deposition of HOWARD B. ABRAMS, Taken at 500 Woodward Avenue, Suite 4000, Detroit, Michigan, Commencing at 2:04 p.m., Wednesday, October 8, 2008, Before Denise M. Kizy, CSR-2466, RPR, CRR.

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vague statement that, oh, we're going to want to use you as an expert witness in this case we've got and telling me nothing about the case or anything, probably would have been some time towards the end of July. Q. A. Q. A. Q. How long have you known Mr. Martin? I would guess 15, 20 years. Are you friends? Our relationship is cordial, yes. Have you ever worked with Mr. Martin in any professional capacity? A. Q. Matter of fact, yes. What -- in what situation have you worked with Mr. Martin in the past? A. This was many years ago, and a gentleman named Armen Boladian was in the midst of one of his interminable lawsuits with George Clinton, and it involved a number of songs and music publishing rights and sampling rights and Joel owned a half interest, was a co-publisher of one of the songs involved, and Joel -the case was in court and Joel asked me if I would appear for him to give him enough time to sell his co-publishing interest to Armen Boladian and get the heck out of the case, and that's what happened. Q. So you represented Mr. Martin in that situation?

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A. Q. A. Q. A. Q.

Yes. And did Mr. Martin pay you for your services? Yes, he did. Do you recall when that occurred? Oh, God. 10, 15 years ago.

Have you ever represented Mr. Martin at any other time?

A. Q.

No. Have you ever served as an expert witness in any matter that Mr. Martin has been involved in other than this case?

A. Q. A.

No.

Oh, wait a minute.

How did it come about that -- I'm sorry. Wait one minute. There was a case. Joel was not a

party to the case, but I think he was advising the plaintiffs, and it was a case involving the Romantics suing their former manager, and the Romantics lawyer, a gentleman named Norm Ankers, asked me if I would be an expert witness in that case. nothing else ever happened. deposition, nothing. I said yes, and

No expert report, no

I don't think Joel was a party.

I think he was just friends with some of the guys in the Romantics. Q. How did it -- how did it come about that you met Mr. Martin approximately 15 years ago?

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A.

You know, I'm really not sure.

The music industry in

Detroit compared to Los Angeles, New York or Nashville is really pretty small, and you sort of -- if you -if you're at all involved in it, you sooner or later bump into lots of -- you know, to most of the people. How I first met Joel, I don't know. Somewhere it

sticks in the back of my mind that a mutual friend who was going to law school, he was a promotion man, and decided to become a lawyer. His name was Mike I think at some point

diamond, if I recall correctly.

he's the guy who introduced us, but I could be wrong, and this was 15, 20 years ago. Q. And over the course of the last 15 years, have you ever gotten together socially with Mr. Martin? A. Well, if, for example, you're saying are there social events we've both been at, for example, a little while ago there was a fund-raiser for a group called the Deaf Performing Arts Network where I had purchased a table and where Joel Martin was present, and Joel may have even been on the planning committee. that was the most recent social occasion. Also -Before

that, I think you'd have to go back to December of last year. Every year Joel's studio throws sort of a

Christmas party that's an open house for just about everyone in the music industry. They take over a

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bowling alley, and I remember going to that last year and then maybe once in some previous year. Q. A. Have you ever been to Mr. Martin's home? Once quite a while ago. It was before he was married.

He was living with his wife to be over in a suburb called Pleasant Ridge, and I was over at their house on that occasion. Q. A. What was that occasion? I can't remember the exact date or exactly the circumstances. I know I was there, I know it was

before they were married, and I stopped by there or came by there, and that was it. what it was about. Q. A. Have you had Mr. Martin over to your home? No. He knows where it is, but to the best of my I can't even remember

recollection Joel and/or Deneen have never been a guest in our house. Q. Has Mr. Martin helped you in any way in any of your professional activities? A. Not really. MR. BUSCH: Just for the record, let me

just say that the teleconference has been interrupted. We've lost the connection with Mr. Pomerantz, so we're going to go off the record until we can reestablish the connection.

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VIDEO TECHNICIAN:

Going off the record.

The time is 2:16 and 30 seconds p.m. (Recess taken at 2:16 p.m.) (Back on the record at 2:29 p.m.) VIDEO TECHNICIAN: We're now on the record.

The time is 2:29 and 20 seconds p.m. BY MR. POMERANTZ: Q. Mr. Abrams, have you ever worked with Mr. Busch in any prior lawsuit? A. Q. A. Q. A. No. Do you know a gentleman named Howard Hertz? Yes. Have you ever worked with Mr. Hertz in the past? I think I can remember two incidents. One involved -One

I don't know if you'd call this working with him. involved a band called Sponge that had had some success initially and then broke up, and they were

fighting over who had the rights to the name Sponge, and I was representing two of the former members, and he was representing the other two, and we tried to negotiate an agreement of some -- of that and of some of the other issues, and ultimately nothing much happened. That was one. Then the other -- let me see if I've got this right. He represented a journalist who had

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written an article about drug dealers and sort of tongue-in-cheek in a side bar included a column on the Ten Commandments of being a drug dealer. You know, it

was sort of tongue-in-cheek humor, and then Biggie Smalls, or The Notorious B.I.G., recorded a record based on that, and Howard threatened suit. They

finally settled the matter, but in the process he talked to me about it and asked my -- I know he asked my opinion, but I don't know that much else ever came of it. Q. A. Have you ever met Mark or Jeff Bass? Once I met one of them. I'm trying to remember where. I know I've been

I'm trying to remember where.

introduced to at least one of them, but I really don't know them. I've been at events, you know, for

example, the Motor City Music Foundation sponsors an annual program called the Detroit Music Awards, which is sort of like the local answer to the Grammys, and I know they've been there. I may have been introduced

to them there, and so on, but certainly whatever our relationship is it is not at all close. Q. A. What experience have you had in the music industry? Okay. Before I went into the academy, I was in I represented a number

private practice in Chicago.

of clients in the music industry, artists and some

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local producers and record labels.

Then after I

joined the faculty at the University of Detroit, I don't particularly look for clients, but sometimes through a student or mutual friend they'll come to me and ask me for advice. The usual scenario is a student comes up to me and they've got a brother or sister or cousin or boyfriend or girlfriend who is in a band, and would I please give them advice, and so on. I've sort of

developed a routine of saying have them meet me in the school cafeteria, we'll have some coffee and we'll talk, and I try to explain ASCAP and BMI and some of the things to them, and then inevitably they leave me with a tape and it's usually somewhere between mediocre and God awful, but every now and then somebody with real talent has asked me to then represent them. Q. I think --

You joined the faculty -MR. BUSCH: Hold on, Glenn.

BY MR. POMERANTZ: Q. -- at the university -- I'm sorry, you're not done? MR. BUSCH: No, Glenn.

I want to say I don't think his question was limited to your private practice, but also any societies and your experience in the music industry

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from a scholarly perspective as well. THE WITNESS: Well, I've certainly written

about entertainment law related topics and copyright. The piece on Who's Sorry Now certainly came out of the music industry. I've tried to remain in contact with

a lot of my friends in the music industry so I can stay current. I can -- you know, I go pretty

regularly to meetings of groups like the Copyright Society of the USA, the entertainment law forum of the American Bar Association, where it's a question of staying up-to-date and staying current. Also I try to

read some of the stuff that's written in the area. BY MR. POMERANTZ: Q. A. Any other experience you have in the music industry? In other words, have I ever worked for a record company or anything like that? Q. Any experience whatsoever in the music industry? you basically given me a description of your experience in the music industry or is there anything more you'd like to add? MR. BUSCH: anything? THE WITNESS: copyright. Oh, yeah, I teach courses in In Do you teach copyright or Have

I teach courses in entertainment law.

fact, I've broken that down into two courses.

One is

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entertainment law/film and television. entertainment law/music.

The other is

I've certainly spoken on a You know,

number of panels about the music industry.

I'm sure other things will come to me, but the clients I had before I became a professor included artist producers, even one small record label in Chicago, and then I've done some work since then, granted, on a more selective basis, but, yeah, I've stayed in touch. BY MR. POMERANTZ: Q. A. Q. Anything else? Not that I can recall at the moment. Now you said that you were in private practice for a while, and at that point in time you did represent some clients in the music industry. When were you in private practice? A. Let's see. Graduated law school in '66. '67 and '68

I was basically with the Office of the Public Defender in Cook County, Illinois. have been '67, '68. Q. So, let's see, that would

So basically from '69 -Mr. Abrams,

Let me help you a little bit, Mr. Abrams. let me try to speed this up.

Your resume says you were with a law firm called Abrams, Mix and London from 1969 to 1977. that the private practice period that you were referring to? Is

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A. Q.

Yes, it is. And you stopped being in private practice then in 1977 and joined the University of Detroit Mercy School of Law; correct?

A. Q.

That is correct. Since 1977, when you joined the law school faculty, have you been involved in the negotiation or drafting of any artist agreement?

A. Q. A. Q.

Yes. How many? Two or three. Can you identify each of those artist agreements that you were involved in?

A.

Yes.

One was for a group called The Verve Pipe. I know

Another was for an artist named Gia Warner. there was one more.

I'm blocking on the name right

now, and then also I did some work for a little indie label here in Detroit that I set up their form contract for them. Q. A. What was the name of that indie label? Let's see, it was Chaos and then -- then Sony wanted the name for some reason or other and bought the name out from them and they changed it. personal involved. Joel, do you know the name of her record Sue Sommers is the

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company? I'd have to check. Q. A. Q. A. How do you spell Sommers? I believe it's S-o-m-m-e-r-s. Where is that label located? In Detroit, maybe just -- maybe in Grosse Pointe which is just the other side of the city line. Q. A. Q. Is it still in business? Yes, it is. When did you work with that label to develop their form contract? A. Q. I would say about five years ago. The first artist that you mentioned, was it -- was it The Verve Pipe? A. Q. A. Q. A. Q. Yes. Could you spell that, please? T-h-e V-e-r-v-e P-i-p-e. And who were you representing in that negotiation? The artist. Can you give me the names of the artists who you were working with? A. The lead singer was -- and rhythm guitar was Brian Vander Ark. on the name. The drummer, Donny -- gosh, I'm blocking Jeff Dunning was the lead guitarist. It's escaping me.

The other Vander Ark brother was the bass player.

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Okay, let's see.

Rhythm guitar, lead guitar, vocalist

was the rhythm guitar, bass player, drummer, that was the group, and then they added a keyboard percussionist later on named Doug. Q. A. Q. A. Q. Who was the other party to the contract? RCA records. What year was that? That would have been in the late '90s. Do you recall the name of any of the individuals who were sitting on the opposite side of the negotiation table from you? A. Whoever was the chief in-house counsel for RCA Records at the time, and I -- I forget her name. Q. And you're sure that the name of the label was RCA Records? A. It may have been RCA Records, Inc., or RCA, Inc., but it was RCA, what everyone knows as RCA. Q. A. Q. What kind of music does The Verve Pipe engage in? Rock, alternative rock. Do you recall what any of the points of discussion were in the negotiation of The Verve Pipe contract? A. There were a lot of them. Pretty much all the The number

financial terms were points of discussion.

of albums committed, what the recording funds would be, mutual approval of producers, so on. There were

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other things, too.

You know, just timing issues as to

when things were to be delivered. Q. Have you heard of something called a controlled composition clause? A. Q. A. Oh, yes. What is a controlled composition clause? Controlled composition clause is basically when a record company says to the recording artist that we do not want to pay full price for mechanical licenses for songs you own or control or have written, so that we are going to ask you to give us typically both a discount on the rate of the mechanical license and a limit on the number of songs per album on which we have to pay mechanical royalties. Q. Anything else -- strike that. Do you have an understanding whether a controlled composition clause is anything other than what you just described? MR. BUSCH: answered. THE WITNESS: Well, a controlled Objection to form, asked and

composition clause technically speaking is one of two forms. One, it can be a promise to the record company

that mechanical licenses will be issued on certain terms, and the other is an absolute issuing of the

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The time is 2:47 and 31 seconds p.m. (Recess taken at 2:47 p.m.) (Back on the record at 2:52 p.m.) VIDEO TECHNICIAN: Back on the record. The

time is 2:52 and 12 seconds p.m. BY MR. POMERANTZ: Q. Mr. Abrams, did The Verve Pipe contract have a controlled composition clause in it? A. Q. A. Q. As I recall, yes. Was that the subject of negotiation with RCA Records? Yes, it was. What specifically do you recall discussing with RCA Records regarding the controlled composition clause? A. The number of compositions that would be subject to the cap. We also discussed the percentage of

statutory that would be paid on the compositions that were paid for. We also discussed whether it would be

based on date of when the recording was finished or when the recording was distributed or when the -- the individual phono records were sold. primary issues we discussed. Q. Do you remember any other issues regarding the controlled composition clause that you discussed with RCA Records in connection with The Verve Pipe contract? Those were the

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A. Q.

No, I don't. Did The Verve Pipe contract contain a controlled composition clause that granted rights to RCA Records?

A.

I'd have to look -- find a copy of the document and look at it to tell you.

Q.

Well, did it use a word like "is hereby licensed"? Was that term in the contract?

A.

It may have been.

Without the contract in front of

me, I can't tell you exactly what it said. Q. A. Did it use the term "will license"? It may have. Again, without the contract in front of

me, I'm not going to be able to tell you what the contract said. Q. When was the last time that you looked at The Verve Pipe contract? A. Q. Some years ago. Now you said that another contract that you participated in negotiating and drafting was a contract involving the artist Gia Warner; is that correct? A. Q. A. Q. That is correct. Could you spell the name of that artist, please? G-i-a W-a-r-n-e-r. When did you get involved in negotiating and drafting that contract?

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document. BY MR. POMERANTZ: Q. A. Q. You don't recall as you sit here today? No, I do not. Did it use the term "is hereby licensed"? MR. BUSCH: THE WITNESS: document to tell you. BY MR. POMERANTZ: Q. A. Q. Did it use the term "will license"? I would have to look at the document to tell you. Now since 1977, have you been involved in the negotiation or drafting of any agreement containing a controlled composition clause other than what you've already testified to today? A. Q. Yes. What other contracts have you been involved in negotiating or drafting that contained controlled composition clauses? A. There was a local production company, producer, who was signing a band to the -- to his production company where the deal was he was going to produce some records and try to sell them to a major, and, if not, put them out himself, and in that event there was to be a split in the publishing, and that the clause was Asked and answered. I'd have to look at the

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that if he had to make any concessions to a major label in terms of capping or reducing the rate on the compositions, then he was free to do so and they would be bound by it. Q. And is that what you would consider to be a controlled composition clause? A. No, but it implicates a possible future one. That in

and of itself, I don't know if that's controlled composition clause. You know, in the sense that it

gave him power to enter into a controlled composition clause if he sold or licensed the masters, in that sense I suppose you could say it is; though, by itself I think it's just a grant of authority. Q. And the only contract you were involved in was the one that gave that grant of authority? A. Q. A. Q. A. Q. Yes. What was the name of the local production company? Work Ethic Productions. Where is it located? Royal Oak, Michigan. What is the name of the individual or individuals who you worked with there? A. Q. The principal is a guy named Nolan Mendenhall. And what was the name of the other party to the contract?

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A.

It was actually a group of individuals under the professional name of Riot in Progress.

Q. A.

Do you remember the names of any of those individuals? Yeah, the lead singer, chief songwriter was a guy named Steve Hopton. Darowski. The drummer was named Michael

The bass player kept changing, and the

guitarist was John -- again, I'd have to look at the documents to tell you John's last name. Q. A. Q. A. Q. A. Q. When -- was that agreement actually signed? Yes, it was. When was the agreement negotiated and signed? In the 1990s. Can you be any more specific? Not without looking at the document. And the individual band members that you mentioned, are they all residing somewhere in the Detroit area? A. Steve and Mike still are. Texas. Q. Are there any other contracts that you have been involved in the negotiation and drafting in the last 30 years that contain controlled composition clauses? A. The last 30 years, that's basically since I've been in Detroit. Q. Not that I can think of. John I believe has moved to

Now let me go back to the time when you were at the law firm from 1969 to 1977.

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Were you involved during that time period in negotiating and drafting artist agreements that contained controlled composition clauses? A. Q. A. Q. Yes. How many? I'm not sure. Can you give me an estimate? MR. BUSCH: your best. This is 30 years ago. Just do

I mean this is not a memory test. THE WITNESS: Well, I'm trying to

distinguish between artists I represented who already had a recording contract and artists where I was asked to negotiate the contract in the first place, and where I was actually involved in the drafting or negotiating, I would say probably somewhere between three to five. BY MR. POMERANTZ: Q. And do you recall the names of any of those artists who you were representing in the negotiation and drafting of those agreements? A. Q. A. Yes. Can you give me those names, please? One would be Tom Powers, and that was a contract with Arista. One would be a band called The Flock and that One would be a

was a contract with Mercury Records.

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contract for a band called J.C. Hartsfield and that would have been with Mercury Records as well. MR. BUSCH: Glenn, at this pace, man, we're Is this

never going to get out of here by 5:30. really all relevant information? about 30 -MR. POMERANTZ: MR. BUSCH: THE WITNESS: remember at the moment. BY MR. POMERANTZ: Q. Do -- strike that. Very. Keep going.

I mean we're talking

Okay.

Those are the names I can

Did any of those contracts contain a controlled composition clause that used the phrase "is hereby licensed"? A. Again, I would have to find the documents, if I still have copies, and look at them to tell you. Q. Did any of those contracts contain a controlled composition clause that used the phrase "will license"? A. Once again, I would have to locate the documents, if I still have them, look at them, read them to be able to answer that question. Q. What other experience do you have in connection with the interpretation of controlled composition clauses?

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Abrams 40-41, and let's also put in Abrams 42-43 as Exhibit 256. Mr. Abrams. right now. MARKED BY THE REPORTER: DEPOSITION EXHIBIT NUMBERS 255-256 3:38 p.m. Q. Mr. Abrams, do you have Exhibits 255 and 256 in front of you? A. Q. A. Yes. Can you tell me what Exhibit 255 is? Yes. It's a statement for services rendered that I These are your statements for services, I just want to put those in front of you

sent to the plaintiffs in this case. Q. A. And can you tell me what Exhibit 256 is? It's a statement for subsequent services rendered that I sent to the plaintiffs in this case. Q. And do these statements accurately reflect the time you spent on this matter and the tasks that you undertook? A. Q. I believe so. All right. So the first entry on Exhibit 255 is on

July 31, 2008? A. Q. Yes. Is that the date when you were first formally retained in this matter?

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A.

It may have been that day, it may have been a day or two earlier.

Q.

Is that the date when you had the first substantive conversation on this matter?

A.

It was either that date or within a couple of days prior to that.

Q.

All right.

And on July 31, you spent one-and-a-half

hours speaking with Mr. Busch, Mr. Levinsohn and Mr. Martin and then reviewing some documents; correct? A. No, that's a misstatement of what the document says. What the document says is -Q. All right. Then why -MR. BUSCH: middle of his answer. THE WITNESS: BY MR. POMERANTZ: Q. A. Go ahead. -- is through Thursday, July 31st, 2008. So included What the document says is -He's answering. He's in the

in that hourly summary is some conversations that may have been prior to that by a couple of days or several days, and there were -Q. How much of that one-and-a-half hours was spent in -I'm sorry, were you finished, Mr. Abrams? MR. BUSCH: THE WITNESS: No, he wasn't. It includes a number of

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different telephone conversations, not just one. BY MR. POMERANTZ: Q. How much of that hour-and-a-half was spent in the telephone conversations compared to the review of documents? A. Let's see. I would say half to two-thirds was review

of the documents. Q. Do you recall what the initial documents were that were provided to you by Mr. Martin? A. Yes, he provided me with a copy of the license for Lose Yourself. He provided me with copies of some

other proposed licenses that weren't entered into, and he provided me with a copy of one of the -- I think it was the original F.B.T./Aftermath agreement. Q. Do you recall what you discussed with Mr. Busch, Mr. Levinsohn and Mr. Martin in the conversations that occurred either just prior to July 31 or on July 31? A. Not the precise words, but the gist of the conversation was the issue in the case was whether Joel's companies or the companies he manages, Eight Mile Style and Martin Affiliated, should be licensing Apple directly for their permanent digital downloads. Q. A. Anything else you recall being discussed? My hourly rate, what kind of time pressure this involved, that there were two cases and I was only to

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be involved in this one, so on. Q. By the way, have you ever negotiated an agreement with Apple? A. Q. No. Have you ever negotiated or drafted an agreement with any provider of music on-line? A. Q. No. Prior to this engagement had you ever reviewed any contract between Apple and any record company? A. Q. No. Prior to this engagement, had you ever reviewed an agreement between any record company and any on-line digital provider? A. Q. No. Then according -- I'm back on Exhibit 255. Then from

Friday through Sunday, August 1 -- from Friday, August 1 through Sunday, August 10, you had another half hour of conversations and e-mailing on this matter; correct? A. Q. Yes, that's what I billed for. All right. And do you recall what was discussed

during that time period? A. I think it was mostly about timing, getting documents, things of that nature. If it had been -- if it had

been very substantive it wouldn't have been quite so

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and working on the draft expert report? A. Q. The great majority. Do you recall approximately what time of the day on August 11 you began working on this matter? A. Q. Probably around nine o'clock in the morning. Do you recall who prepared the first draft of the expert report? A. Yes. The prior phone conversations prior to that date

were all of a sudden I found out that the expert report was like due, you know, tomorrow or the next day. I had some general conversation with Mr. Busch

and Mr. Guilford about what the expert report should contain, and in the interest of time I think I suggested to them that -- or they suggested to me that they would do a first draft and send it on to me and I would go over it, modify it, and take it from there, and we, you know, worked towards getting an expert report done. Q. So you got the first draft of the expert report from Mr. Busch; correct? A. Q. Yes. All right. Let me ask if we could have Abrams 74

marked as Exhibit 257, please. VIDEO TECHNICIAN: time to change videotape? Would this be a good

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composition clause? A. I'd have to go look at the forms and see what they said. Q. A. Q. As you sit here today, you're not sure? As I sit here today, I'm not sure. Do any of the controlled composition clauses that you've been involved in negotiating and drafting use the phrase "will license"? A. I'd have to go back and look at the clauses. MR. BUSCH: All of this has been asked and I

answered at the beginning of this deposition. object to it as asked and answered. BY MR. POMERANTZ: Q.

Are you certain, Mr. Abrams, that you've ever read a contract that uses the phrase "will license" in a controlled composition clause other than what you've read in this case?

A. Q.

Am I 100 percent dead certain?

No.

Did you read Mr. Paterno's deposition transcript for the first time before or after you signed the expert report in this case?

A. Q. A.

No, I'm not sure.

Let me --

Let me see if I can refresh your recollection. You know, there's something here which can clarify that for me.

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Q. A.

Yeah, look at Exhibit 262, Mr. Abrams. Hold on a minute. your question. I did not list it in Exhibit A attached to my expert report, so I probably didn't read it until after I had submitted the expert report. I'm trying to get the answer to

Q.

All right. you.

If you'll look at Exhibit 262 in front of

A.

Wait a minute.

Let me find it.

262, okay. Q. And you see that's an e-mail from Mr. Guilford to you on August 13 that is attaching the Paterno deposition transcript; do you see that? A. Q. Yes, I do. And August 13 is the day after you signed your expert report; correct? A. Q. That is correct. So is it fair to say that the first time you even received the Paterno deposition transcript was the day after you signed the report? A. Q. Yes. When did you receive for the first time the deposition transcript of Mr. Martin? A. Q. I'm not sure. Okay. Look at Exhibit 260.

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BY MR. POMERANTZ: Q. All right. Do you see -- let me go down to your

conclusions at the bottom of page one of your report, and we'll go to paragraph number one there first. Do you see that? A. Q. Yes. All right. And in the first sentence you refer to the

'98 and 2003 agreements, and then you put in quotes the words "will license." Do you see that? A. Q. Yes. What is your basis for your understanding of what the words "will license" mean in paragraph 6(a) of the 1998 contract? A. That because will is future tense, it's something they will do in the future. VIDEO TECHNICIAN: fell off. THE WITNESS: BY MR. POMERANTZ: Q. All right. And then you see that you put the words Oh, okay. Mr. Abrams, your mike

"distributors/licensees" in quotes in the same sentence? A. Q. Mm-hmm, yes. Is that yes?

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product, that the entire controlled composition clause is vitiated or that just that rate is vitiated? A. The application of the clause to digital downloads is vitiated. The application of the clause to let's say

something like, you know, Aftermath manufacturing the records is not. Q. What is the support for your position that the entire clause is vitiated with respect to any digital products? MR. BUSCH: THE WITNESS: Asked and answered. The support is, again, the

section of the statute and the portion of the Senate Report that I cited. BY MR. POMERANTZ: Q. All right. report. At the very top you're discussing paragraph 6(a) and you state the following: This is not a, Could you turn to page three of your

quote, self-effectuating, close quote, controlled composition clause as that term is known and understood within the music industry and under copyright. Do you see that? A. Q. Yes. Okay. In that phrase, that term, are you referring to

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the term "self-effectuating"? A. Q. Yes. Okay. quotes. Why did you put that in quotes? A. Because it was the term that was being used in the depositions. Q. Had you ever heard the term "self-effectuating" applied to controlled composition clauses before you got involved in this case? A. I've heard the term used before. Whether or not it And you put the term "self-effectuating" in

was in connection with the controlled composition clause, I cannot say. Q. Well, as you sit here today can you recall a single time when you heard the expression "self-effectuating" used in connection with controlled composition clauses? A. Other than in the deposition transcripts and in the conversations with different people about this case, I cannot say that I've heard it used in connection with the controlled composition clause. I don't remember. Q. A. Q. Self-effectuating -If I have -I'm sorry, let me start over again. I don't -- I have

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A. Q.

If I have heard it, I don't remember. When you say in your report that the term "self-effectuating" has a known and understood meaning within the music industry, what did you mean that by?

A.

That basically I would think that music industry lawyers, copyright types, music publishers, would understand that. I did not mean to say, you know,

that the road crew on, you know, some itinerant rock band would understand it. Q. Well, if you've never heard the term "self-effectuating" applied to controlled composition clauses before this case, why do you think that that term is known and understood within the music industry in that context? A. Because self-effectuating is a term that is fairly regularly used in legal discourse to apply to things like contracts, trusts, wills, assignments, franchising, licenses, so I would -Q. Have you ever used the term "self-effectuating" in anything that you've written? A. Q. No. Now you say that the term "self-effectuating" is also a term that is known and understood under copyright. What were you referring to there? A. For example, in copyright transfers sometimes there

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are an agreement and then a separate transfer document. Sometimes the transfer is built right into It's the difference between "I hereby

the agreement.

transfer" and "I will transfer." Q. Have you ever seen the term "self-effectuating" used in any copyright publication describing anything in the copyright business? A. Q. Not off the top of my head. All right. The next sentence says: Self-effectuating

controlled composition clauses will say that the controlled compositions are hereby licensed. Do you see that? A. Q. A. Yes. What's the basis of that opinion? Well, for a clause to be self-effectuating or to use a couple of synonyms, self-fulfilling, self-enforcing, you would say something like "I hereby license" or "I license." You would not say "I will license." You

would not put it in the future tense. Q. What other terminology do you think would satisfy your standard as a self-effectuating license? A. If they had said "I hereby license" or "we hereby license" or even use the -- left out the word "hereby" and said "we license." Q. How about if it says that you and the artist grant an

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Q.

Can the licensing record label license the composition to the third party licensee under the controlled composition clause in the contract with the artist? MR. BUSCH: Object to form, incomplete

hypothetical, vague and ambiguous, calls for a legal conclusion, and you're asking him a question about an unknown contract with unknown terms between unknown parties, and I object to the -- I object to it. THE WITNESS: Well, the basic point,

because you've got to read this in context with the both preceding and subsequent sentences, is that these clauses in terms of being a license in and of themselves do not apply to unaffiliated third parties. The practice of the industry has been these unaffiliated third parties must get separate mechanical licenses. BY MR. POMERANTZ: Q. What's your basis of your knowledge about that particular practice in the industry? A. Q. A. Q. From reading about it, from talking to people. Could you turn to the top of page four of your report? Mm-hmm. At the top of that page, you have clauses one through five. Do you see that?

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BY MR. POMERANTZ: Q. Did you do anything as part of your engagement to investigate any of the industry practices and customs that you referred to in this report? A. Q. A. Yes. I spoke with --

What did you do? I spoke with a number of people, mostly lawyers, but not entirely, and asked them, you know, what their understanding was.

Q. A.

When did you do that? Late July, early August. I'm not sure of the exact

dates, but when it first became clear to me what the issue was, there were several people I called who I consider extremely knowledgeable or experienced and asked them. Q. Are any of those conversations reflected on your time statements? MR. BUSCH: speaks for itself. THE WITNESS: BY MR. POMERANTZ: Q. A. Why not? Because I didn't feel that that was appropriate to bill the client for. Q. Why? I mean I -I don't think so. Objection. That document

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A.

Just sort of a -- a gut feeling.

I don't -- I have

the luxury of not having to follow the billing rules of, you know, a law firm, and when I call a friend -Q. A. Who did --- and we talk, you know, how are your kids, how's your family, blah, blah, blah, by the way, I have a question, and that takes about two, three minutes, you know, let it slide. time on this case. Q. How many conversations of two or three minutes did you have as part of this engagement? A. Q. A. Several. I don't know the exact number. God knows I've let slide a lot of

Who did you speak with? One person was Mike Milom. Nashville, Tennessee. He's a music attorney in He's a

Another was Don Engel.

music attorney out in California.

Another was a guy

named Bob Paletz who had worked for K-tel in terms of putting their compilation albums together, and also had worked for both Sony and Capital in terms of trying to get their stuff placed on things like compilation albums and so on and so forth. Luneau in New York. John Mike

Noel Silverman in New York.

Novak here in Detroit.

There may have been others.

Some of the conversations were short. Q. Are all of these people --

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EIGHT MILE STYLE, LLC and MARTIN AFFILIATED, LLC, Plaintiff, vs. APPLE COMPUTER, INC. and AFTERMATH RECORDS d/b/a AFTERMATH ENTERTAINMENT, Defendants. Case No. 2:07-CV-13164

VERIFICATION OF DEPONENT

I, having read the foregoing deposition consisting of my testimony at the aforementioned time and place, do hereby attest to the correctness and truthfulness of the transcript.

_____________________________ HOWARD B. ABRAMS Dated:

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CERTIFICATE OF NOTARY STATE OF MICHIGAN ) ) SS COUNTY OF OAKLAND ) I, DENISE M. KIZY, a Notary Public in and for the above county and state, do hereby certify that the above deposition was taken before me at the time and place hereinbefore set forth; that the witness was by me first duly sworn to testify to the truth, and nothing but the truth; that the foregoing questions asked and answers made by the witness were duly recorded by me stenographically and reduced to computer transcription; that this is a true, full and correct transcript of my stenographic notes so taken; and that I am not related to, nor of counsel to either party nor interested in the event of this cause.

________________________ DENISE M. KIZY, CSR-2466 Notary Public, Oakland County, Michigan My Commission expires: July 28, 2013

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