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

Filing 94

REPLY to Response re 66 Renewed MOTION for Summary Judgment, 34 MOTION for Summary Judgment, 80 MOTION Exclude Late Produced Documents re 66 Renewed MOTION for Summary Judgment MOTION Exclude Late Produced Documents re 66 Renewed MOTION for Summary Judgment MOTION Exclude Late Produced Documents re 66 Renewed MOTION for Summary Judgment, 53 MOTION for Partial Summary Judgment iso Revised Motion for Summary Judgment filed by Aftermath Records, Apple Computer, Incorporated. (Attachments: # 1 Index of Exhibits TO DEFENDANTS AFTERMATH RECORDS AND APPLE INC.S REPLY BRIEF IN SUPPORT OF REVISED MOTION FOR SUMMARY JUDGMENT, # 2 Exhibit 22: Declaration of Melinda LeMoine In Support of Defendants Reply Brief In Support of Defendants Revised Motion for Summary Judgment, # 3 Exhibit 22-A: Excerpts of transcript pages from the depositions of Patrick Sullivan taken on September 18, 2008 and October 1, 2008, # 4 Exhibit 22-B: Excerpts of transcript pages from the deposition of Todd Douglas taken on May 6, 2008, # 5 Exhibit 22-C: Excerpts of transcript pages from the deposition of Cynthia Oliver taken on July 17, 2008, # 6 Exhibit 22-D: Excerpts of transcript pages from the deposition of Chad Gary taken on May 6, 2008, # 7 Exhibit 22-E: Excerpts of transcript pages from the deposition of Patricia Blair taken on May 29, 2008, # 8 Exhibit 22-F: Letter from Glenn Pomerantz to Richard Busch dated August 19, 2008, # 9 Exhibit 22-G: Ensign Publishing/Famous Music licenses (Filed Under Seal), # 10 Index of Exhibits 22-H: Summary Chart of Grants of Rights in Compositions (Docket No. 66-3, Revised to Include Ensign Publishing/Famous Music Licenses), # 11 Exhibit 22-I: Amendment to Production Agreement between F.B.T. Productions, LLC and Marshall Mathers p/k/a Eminem, dated February 22, 1999 (FBT-0042-46) (Filed Under Seal), # 12 Index of Exhibits 22-J: Summary Chart in Response to Sullivan Decl. Exhibit C-2 (Filed Under Seal), # 13 Exhibit 22-K: Summary Chart in Response to Sullivan Decl. Exhibit C-3 (Filed Under Seal), # 14 Exhibit 22-L: Excerpts of transcript pages from the deposition of Eddy Cue taken on June 20, 2008 (Filed Under Seal), # 15 Exhibit 22-M: Copyright Assignment and Co-Publishing Agreement with Ensign Music Corporation, dated February 4, 1999 (8M-00847-74) (Filed Under Seal), # 16 Exhibit 22-N: Letter from Kobalt Music Publishing to UMG Recordings, dated September 30, 2008 (AFT-0059179-83) (Filed Under Seal), # 17 Exhibit 22-O: Declaration of Richard Busch and accompanying Exhibit K filed in F.B.T. Productions, LLC and Em2M, LLC v. Aftermath Records et al., Case No. CV-07-03314 PSG (C.D. Cal.) on September 30, 2008 (Filed Under Seal), # 18 Exhibit 22-P: Copy of a check from Universal Music Group to Kobalt Music Publishing (AFT-0059125) (Filed Under Seal), # 19 Exhibit 22-Q: Music Resources, Inc. Administration Agreement dated October 17, 2007 (Filed Under Seal), # 20 Exhibit 23: Asset Marketing Systems, Inc. v. Gagnon, 2008 WL 4138181 (9th Cir. Sept. 9, 2008)) (Klaus, Kelly)

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

EXHIBIT 22-B Excerpts of transcript pages from the deposition of Todd Douglas taken on May 6, 2008

5005843.1

DEPOSITION OF TODD DOUGLAS
Page 2
UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

EIGHT MILE STYLE, LLC, ET AL.,

) ) ) PLAINTIFFS, ) ) VS. ) ) APPLE COMPUTER, INC., ) ) DEFENDANT. ) _________________________)

CASE NO. 2:07-CV-13164

DEPOSITION OF TODD DOUGLAS, TAKEN ON BEHALF OF THE PLAINTIFFS, AT 10250 CONSTELLATION BOULEVARD, 19TH FLOOR, LOS ANGELES, CALIFORNIA, COMMENCING AT 3:02 P.M., TUESDAY, MAY 6, 2008, BEFORE SAMANTHA AVENAIM, CSR NUMBER 10627.

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF TODD DOUGLAS
Page 100
17:03:47 17:03:47 17:03:49 17:03:52 17:04:02 17:04:05 17:04:06 17:04:08 17:04:20 17:04:24 17:04:31 17:04:32 17:04:35 17:04:38 17:04:40 17:04:42 17:04:42 17:04:44 17:04:46 17:04:46 17:04:47 17:04:48 17:04:49 17:04:51 17:04:55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY -Q. IS YOUR BASIS FOR SAYING THAT

CONFERRING WITH ATTORNEYS AT UNIVERSAL? A. I WOULD SAY IT'S A COMBINATION OF

MANY FACTORS, INCLUDING CONFERRING WITH ATTORNEYS WITHIN UNIVERSAL. Q. A. NAME ALL THE OTHER FACTORS. I MEAN, ESSENTIALLY, THE QUESTION

THAT I'VE ASKED, THAT'S BEEN ANSWERED BEFORE BY AN ATTORNEY WITHIN UNIVERSAL, SO... Q. OKAY. DO YOU KNOW WHETHER IT'S THE

PRACTICE OF UNIVERSAL TO SEND OUT REQUESTS FOR DIGITAL LICENSES EVEN IF THERE IS A SELF-EFFECTUATING CONTROLLED COMPOSITION CLAUSE? A. THAT. Q. A. CASES. Q. OKAY. DO YOU KNOW WHY IT WAS DONE FOR ALL CASES? I DON'T THINK THAT WAS DONE FOR ALL YES, I DO BELIEVE THAT WE DID DO

IN THE CASES IT WAS DONE? A. Q. OUT? I DO NOT. WHO MADE THAT DECISION TO SEND THEM

WHO MADE THE DECISION TO SEND OUT REQUESTS

FOR PERMANENT DOWNLOAD LICENSES EVEN WHERE YOU HAD
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF TODD DOUGLAS
Page 101
17:04:57 17:04:59 17:05:00 17:05:03 17:05:04 17:05:05 17:05:05 17:05:06 17:05:06 17:05:09 17:05:10 17:05:10 17:05:13 17:05:16 17:05:16 17:05:19 17:05:22 17:05:26 17:05:28 17:05:34 17:05:35 17:05:37 17:05:37 17:05:38 17:05:41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A CONTROLLED COMPOSITION CLAUSE? MR. POMERANTZ: ARE YOU TALKING

ABOUT SPECIFICALLY WITH RESPECT TO THE EMINEM COMPOSITION OR JUST GENERALLY? MR. BUSCH: JUST GENERALLY. OBJECTION;

MR. POMERANTZ: COMPOUND. BY MR. BUSCH: Q.

YOU SAID SOMETIMES IT'S DONE. FIRST OF ALL, I WANT TO KNOW IN

WHAT CASES WAS IT DONE WHERE PERMANENT DOWNLOAD LICENSES WERE SENT OUT, EVEN THOUGH YOU HAD WHAT YOU BELIEVED WAS A SELF-EFFECTUATING CONTROLLED COMPOSITION CLAUSE? A. OKAY. I MEAN, LET'S -- LET ME SAY

THAT THAT WOULD ALSO BE THE CASE WITH PHYSICAL PRODUCT. DOWNLOADS. BUSINESS. IT WOULDN'T JUST APPLY TO DIGITAL YOU KNOW, THIS IS A RELATIONSHIP SOME PEOPLE PREFER TO HAVE LICENSES. MR. BUSCH: NONRESPONSIVE. BY MR. BUSCH: Q. LISTEN TO MY QUESTION. IN WHAT I MOVE TO STRIKE AS

OTHER CASES HAVE YOU SENT OUT REQUESTS FOR PERMANENT DOWNLOAD LICENSES WHERE YOU BELIEVED YOU
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF TODD DOUGLAS
Page 102
17:05:43 17:05:47 17:05:47 17:05:48 17:05:50 17:05:52 17:05:53 17:05:57 17:06:02 17:06:04 17:06:04 17:06:11 17:06:14 17:06:14 17:06:16 17:06:20 17:06:25 17:06:25 17:06:26 17:06:29 17:06:34 17:06:35 17:06:35 17:06:37 17:06:37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

HAD A SELF-EFFECTUATING CONTROLLED COMPOSITION CLAUSE? MR. POMERANTZ: STRIKE IS JUST FOR THE RECORD. APPEAR ON THE TRANSCRIPT. THE DEPONENT: IN MY SPECIFIC JOB HIS MOTION TO WHAT YOU SAID WILL

DUTY, WHERE I WOULD HAVE SENT OUT A LICENSE THAT WOULD HAVE HAD BOTH PHYSICAL AND DIGITAL CONFIGURATIONS, THERE WOULD HAVE BEEN MANY. BY MR. BUSCH: Q. CAN YOU NAME SOME? LET'S FOCUS ON

REQUESTS FOR PERMANENT DOWNLOAD REQUESTS WHERE YOU HAD -A. LIKE I SAID, I DIDN'T SEND OUT JUST MY REQUESTS

ONLY PERMANENT DOWNLOAD REQUESTS.

WOULD HAVE BEEN FOR BOTH PHYSICAL PRODUCTS AND PERMANENT DOWNLOADS. Q. AT WHOSE REQUEST -- AT WHOSE

DIRECTION DID YOU SEND THEM OUT FOR BOTH? A. PATRICIA BLAIR. THE VIDEOGRAPHER: COUNSEL. PARDON ME,

WE HAVE APPROXIMATELY TEN MINUTES LEFT

ON THIS PARTICULAR TAPE. MR. BUSCH: OKAY. AND THAT'S THE LAST
FAX: [phone]

MR. POMERANTZ:
310.820.7733

KELLI NORDEN AND ASSOCIATES