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

Filing 74

RESPONSE to 66 Renewed MOTION for Summary Judgment filed by Eight Mile Style, LLC, Martin Affiliated, LLC. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Declaration of Richard S. Busch, # 3 Exhibit 1 - Paterno Deposition Excerpts, # 4 Exhibit 2 - Rogell Deposition Excerpts, # 5 Exhibit 3 - Nieves Deposition Excerpts, # 6 Exhibit 4 - Hoffman Deposition Excerpts, # 7 Exhibit 5 Ostroff Deposition Excerpts, # 8 Exhibit 6 Martin Vol. I Deposition Excerpts, # 9 Exhibit 7 - Cue Deposition Excerpts (Under Seal), # 10 Exhibit 8 Jobs Deposition Excerpts (Under Seal), # 11 Exhibit 9 - Blair Deposition Excerpts, # 12 Exhibit 10 - Douglas Deposition Excerpts, # 13 Exhibit 11 - Gary Deposition Excerpts, # 14 Exhibit 12 - Ferrante Deposition Excerpts, # 15 Exhibit 13 - Martin Vol. II Deposition Excerpts, # 16 Exhibit 14 - Levinsohn Deposition Excerpts, # 17 Exhibit 15 Van Hagen Deposition Excerpts, # 18 Exhibit 16 - Harrington Deposition Excerpts, # 19 Exhibit 17 - Eisler Deposition Excerpts, # 20 Exhibit 18 - Passman Passages, # 21 Exhibit Docket 2006-3, CRB DPRA, # 22 Exhibit 20 - Webpages from Copyright Office, # 23 Exhibit 21 - Industry Agreement - RIAA, NMPA, HFA, # 24 Exhibit 22 - Senate Report, # 25 Exhibit 23 - Memo from Reinhardt v. Walmart, # 26 Exhibit 24 - Farber Passages, # 27 Exhibit 25 - Allman Bros. Contract, # 28 Exhibit 26 -Shemel & Krasilovsky, # 29 Exhibit 27 - 7/3/08, # 30 Exhibit 28 -Defs Resp to 30(b)(6), # 31 Exhibit B - Martin Declaration (Under Seal), # 32 Exhibit Martin Declaration Ex 1 (Under Seal), # 33 Exhibit Martin Declaration Exhibit 2 (Under Seal), # 34 Exhibit Martin Declaration Exhibit 3 (Under Seal), # 35 Exhibit Martin Declaration Exhibit 4 (Under Seal), # 36 Exhibit Martin Declaration Exhibit 4 (Under Seal), # 37 Exhibit Martin Declaration Exhibit 6 (Under Seal), # 38 Exhibit Martin Declaration Exhibit 7 (Under Seal), # 39 Exhibit Martin Declaration Exhibit 8 (Under Seal), # 40 Exhibit Martin Declaration Exhibit 9 (Under Seal), # 41 Exhibit Martin Declaration Exhibit 10 (Under Seal), # 42 Exhibit Martin Declaration Exhibit 11 (Under Seal), # 43 Exhibit Martin Declaration Exhibit 12 (Under Seal), # 44 Exhibit Martin Declaration Exhibit 13 (Under Seal), # 45 Exhibit Martin Declaration Exhibit 14 (Under Seal), # 46 Exhibit Martin Declaration Exhibit 15 (Under Seal), # 47 Exhibit Martin Declaration Exhibit 16 (Under Seal), # 48 Exhibit Martin Declaration Exhibit 17 (Under Seal), # 49 Exhibit Martin Declaration Exhibit 18 (Under Seal), # 50 Exhibit Martin Declaration Exhibit 19 (Under Seal), # 51 Exhibit Martin Declaration Exhibit 20 (Under Seal), # 52 Exhibit Martin Declaration Exhibit 21 (Under Seal), # 53 Exhibit Martin Declaration Exhibit 22 (Under Seal), # 54 Exhibit Martin Declaration Exhibit 23 (Under Seal), # 55 Exhibit Martin Declaration Exhibit 24 (Under Seal), # 56 Exhibit Martin Declaration Exhibit 25 (Under Seal), # 57 Exhibit Sullivan Declaration (Under Seal), # 58 Exhibit Sullivan Declaration Ex 1 (Under Seal), # 59 Exhibit Sullivan Declaration Ex 2 (Under Seal), # 60 Exhibit Sullivan Declaration Ex 3 (Under Seal), # 61 Exhibit Sullivan Declaration Ex 3 a -e (Under Seal), # 62 Exhibit D - Declaration of Howard Abrams, # 63 Exhibit 1 to Abrams Declaration - Expert Report, # 64 Exhibit E - Hernandez Declaration, # 65 Exhibit F - Case Law) (Busch, Richard)

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION EIGHT MILE STYLE, LLC, and MARTIN AFFILIATED, LLC, Plaintiffs, vs. APPLE COMPUTER, INC. and AFTERMATH RECORDS d/b/a AFTERMATH ENTERTAINMENT Defendant. Howard Hertz, Esq. (P26653) Jay G. Yasso, Esq. (P45484) Hertz Schram PC 1760 S. Telegraph Rd., Suite 300 Bloomfield Hills, MI 48302 [phone] [e-mail] [e-mail] Attorneys for Plaintiffs Richard S. Busch (TN BPR#14594) King & Ballow 1100 Union Street Plaza 315 Union Street Nashville, TN 37201 [phone] [e-mail] Attorneys for Plaintiffs Case No. 2:07-cv-13164 Hon. Anna Diggs Taylor Magistrate Judge Donald A. Scheer

INDEX OF EXHIBITS TO PLAINTIFFS EIGHT MILE STYLE, LLC AND MARTIN AFFILIATED, LLC'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Exhibit A:

Declaration of Richard Busch

Exhibit 1: Portions of Peter Paterno deposition transcript taken on April 30, 2008 Exhibit 2: Portions of Lisa Rogell deposition transcript taken on May 5, 2008 Exhibit 3: Portions of Marnie Nieves deposition transcript taken on June 5, 2009 Exhibit 4: Portions of Rand Hoffman deposition transcript taken on May 27, 2008

Exhibit 5: Portions of Michael Ostroff deposition transcript taken on June 5, 2008 Exhibit 6: Portions of Joel Martin deposition transcript taken on May 14, 2008 Exhibit 7: Portions of Eddy Cue deposition transcript taken on June 20, 2008 Exhibit 8: Portions of Steve Jobs deposition transcript taken on May 27, 2008 Exhibit 9: Portions of Patricia Blair deposition transcript taken on May 29, 2008 Exhibit 10: Portions of Todd Douglas deposition transcript taken on May 6, 2008 Exhibit 11: Portions of Chad Gary deposition transcript taken on May 6, 2008 Exhibit 12: Portions of Leo Ferrante deposition transcript taken on June 26, 2008 Exhibit 13: Portions of Steve Martin deposition transcript taken on June 26, 2008 Exhibit 14: Portions of Mark Levinsohn deposition transcript taken on June 12, 2008 Exhibit 15: Portions of Melissa Van Hagen deposition transcript taken on June 12, 2008 Exhibit 16: Portions of James Harrington deposition transcript taken on May 7, 2008 Exhibit 17: Portions of Fred Eisler deposition transcript taken on May 7, 2008 Exhibit 18: Relevant pages of Passman, Donald S., All You Need to Know About the Music Business (6th ed. 2006) Exhibit 19: Copy of the Adjustment or Determination of Compulsory License Rates for Making and Distributing Phonorecords (Docket 2006-3, CRB DPRA)

Exhibit 20: Pages from the official website of the U.S. Copyright Office, http://www.copyright.gov/docs/section115license Exhibit 21: Industry Agreement entered into among RIAA, NMPA, and HFA Exhibit 22: Pages of Senate Report 104-208 in support of Public Law No. 104-39, 109 stat. 336 Exhibit 23: Pages of defendant's opposition to plaintiff's motion for summary judgment in Reinhardt v. Wal-Mart, No. 07 Civ 8233 (SAS), 2008 U.S. Dist. LEXIS 32119 (S.D.N.Y. Apr. 18,2 008) Exhibit 24: Farber, 9 Entertainment Industry Contracts para. 168-01 at 168-3 (2007) Exhibit 25: Allman Brothers Contract containing "Licenses for Musical Compositions" Exhibit 26: Shemel and Krasilovsky, This Business of Music (10th Ed., 2007) Exhibit 27: Letter received from counsel for defendant's on July 3, 2008

Exhibit 28: Aftermaths' Responses and Objections to Plaintiffs' Notice of 30(b)(6) Deposition

Exhibit B

Declaration of Joel Martin Exhibit 1: November 28, 1995 Exclusive Recording Agreement between F.B.T. Productions and Marshall Bruce Mathers III Exhibit 2: March 9, 1998 Agreement between F.B.T. Productions furnishing the services of Eminem to Aftermath Entertainment Exhibit 3: Letter of Inducement executed by Eminem Exhibit 4: July 2, 2008 Agreement between Aftermath and Marshall Mathers III Exhibit 5: September 7, 2000 Novation between F.B.T. and Aftermath

Records Exhibit 6: April 19, 2000 Eight Mile Style's operating agreement Exhibit 7: Several assignments of copyright from Eight Mile to Martin Affiliated Exhibit 8: Writer-Co-Publisher Agreement between Mark Bass and Eight Mile Exhibit 9: Writer-Co-Publisher Agreement between Jeff Bass and Eight Mile Exhibit 10: January 9, 2003 Writer and exclusive administration agreement with Eight Mile Exhibit 11: Amendment to the January 9, 2003 agreement on April 1, 2004 ­ Louis Resto Exhibit 12: Amendment to the January 9, 2003 agreement on October 19, 2004 ­ Louis Resto Exhibit 13: Writer and exclusive administration agreement with Steve King and Eight Mile on January 9, 2003 Exhibit 14: Amendment to the January 9, 2003 agreement on April 1, 2004 ­ Steve King Exhibit 15: Amendment to the January 9, 2003 agreement on October 19, 2004 ­ Steve King Exhibit 16: Schedule 1 indentifying each Eminem composition Exhibit 17: Compositions owned by Eight Mile and Joel Martin Exhibit 18: Sample royalty statement Exhibit 19: Sample royalty statement Exhibit 20: Sample "glossary" Exhibit 21: August 26, 2005 Mastertone License Exhibit 22: August 11, 2008 Martin ltr to UMG terminating Lose Yourself license

Exhibit 23: August 14, 2008 UMG Notice of Intent to Obtain Compulsory License Exhibit 24: August 21, 2008 Levinsohn Ltr to UMG re: Compulsory License Exhibit 25: Songs released 2003 or Later Exhibit C Declaration of Patrick Sullivan Exhibit 1: August 12, 2008 Patrick Sullivan Expert Report Exhibit 2: Revised summary chart of compositions at issues with citations to the corresponding grant(s) of license Exhibit 3: Summary chart of agreements attached to Defendants Declaration of Rand Hoffman Exhibit 3(a): Apple iTunes Store printout ­ United States Exhibit 3(b): Apple iTunes Store printout ­ United Kingdom Exhibit 3(c): Apple iTunes Store printout ­ France Exhibit 3(d): Apple iTunes Store printout ­ Germany Exhibit 3(e): Apple iTunes Store printout - Deutschland Exhibit D Declaration of Howard Abrams Exhibit 1: August 12, 2008 Howard Abrams Expert Report

Exhibit E

Declaration of Tim Hernandez

Exhibit F

Rodgers & Hammerstein Org. v. UMG Recordings, Inc., 00 Civ. 9322, 2001 U.S. Dist. LEXIS 16111, (S.D.N.Y. Sept. 26, 2001)

Encore Ent. LLC v. Kiddesigns, Inc., 3:03-1129, 2005 U.S. Dist. LEXIS 44386, *23 - *26 (M.D. Tenn. 2005)

Reinhardt v. Walmart, No. 07 Civ. 8233 (SAS), 2008 U.S. Dist. LEXIS 32119 (S.D.N.Y. Apr. 18, 2008)

Allman Bros. v. Sony BMG Music Ent., 06 CV 3252, 2008 U.S. Dist. LEXIS 47612 (S.D.N.Y. June 17, 2008)

Morris v. Alcan Foil Prods., No. 95-5673, 1996 U.S. App. LEXIS 27775, * 4 (6th Cir. Oct. 23, 1996)