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-C Excerpts of transcript pages from the deposition of Cynthia Oliver taken on July 17, 2008

5005843.1

DEPOSITION OF CYNTHIA OLIVER
Page 2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

EIGHT MILE STYLE, LLC, ET AL.,

) ) ) PLAINTIFFS, ) ) VS. ) ) APPLE COMPUTER, INC., AND ) AFTERMATH RECORDS D/B/A ) AFTERMATH ENTERTAINMENT, ) ) DEFENDANTS. ) ___________________________)

CASE NO. 2:07-CV-1Q3164

30(B)(6) DEPOSITION OF CYNTHIA OLIVER, TAKEN ON BEHALF OF THE PLAINTIFFS, AT 10250 CONSTELLATION BOULEVARD, 19TH FLOOR, LOS ANGELES, CALIFORNIA, COMMENCING AT 11:10 A.M., THURSDAY, JULY 17, 2008, BEFORE GALE M. LUCAS, RPR, RMR, CRR, CLR, CSR NUMBER 7899.

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF CYNTHIA OLIVER
Page 69
12:37:07 12:37:09 12:37:09 12:37:13 12:37:15 12:37:17 12:37:18 12:37:23 12:37:27 12:37:30 12:37:30 12:37:32 12:37:34 12:37:38 12:37:40 12:37:40 12:37:46 12:37:47 12:37:51 12:37:53 12:37:56 12:37:58 12:38:01 12:38:01 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

THE DEPONENT:

I KNOW WHAT I WAS

TOLD BY MR. GARY AND MR. DOUGLAS. BY MR. BUSCH: Q. WERE YOU TOLD -- WAS THAT ISSUE OR

TOPIC ADDRESSED WITH THEM, THE CIRCUMSTANCES UNDER WHICH AN ADVICE LETTER WOULD BE SENT OUT VERSUS A REQUEST FOR A LICENSE? A. I ASKED THEM IF THEY KNEW IF U.M.G.

HAD EVER REQUESTED MECHANICAL LICENSES, EVEN THOUGH THE ARTIST MAY HAVE HAD A CONTROLLED COMPOSITION CLAUSE. Q. AND THE ANSWER WAS YES, THERE ARE

OCCASIONS WHERE THAT OCCURS? A. Q. THEY SAID YES, IT DOES OCCUR. NOW, MY QUESTION IS DIFFERENT. MY QUESTION IS: DO YOU KNOW

WHETHER THE PRACTICE IS, WHERE A CONTROLLED COMPOSITION CLAUSE EXISTS AND UNIVERSAL BELIEVES THAT IT HAS THE RIGHT TO EXPLOIT A COMPOSITION BY VIRTUE OF THAT CONTROLLED COMPOSITION CLAUSE, WHETHER THE GENERAL PRACTICE IS TO SEND OUT AN ADVICE LETTER RATHER THAN A REQUEST FOR A LICENSE? MR. KLAUS: AMBIGUOUS. ///
310.820.7733 FAX: [phone]

OBJECTION; VAGUE AND

IT ASSUMES FACTS NOT IN EVIDENCE.

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF CYNTHIA OLIVER
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12:39:01 12:39:02 12:39:07 12:39:10 12:39:11 12:39:13 12:39:16 12:39:17 12:39:19 12:39:23 12:39:26 12:39:31 12:39:33 12:39:34 12:39:37 12:39:40 12:39:43 12:39:46 12:39:49 12:39:51 12:39:52 12:39:53 12:39:55 12:39:58 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

THE EXPLOITATION VERSUS THE OCCASIONS WHERE A REQUEST FOR A LICENSE WOULD GO OUT? A. I ASKED THEM IF THEY KNEW WHY

U.M.G. MIGHT ISSUE A MECHANICAL LICENSE, EVEN IF THERE WAS -Q. YOU NEED TO ANSWER MY QUESTION

DIRECTLY, OR WE'RE GOING TO BE HERE ALL DAY, MS. OLIVER. MY QUESTION, FOR THE FOURTH TIME NOW, IS: DID YOU DISCUSS WITH THEM, YES OR NO,

WHY THERE WOULD BE OCCASIONS WHERE AN ADVICE LETTER MIGHT GO OUT TO A PUBLISHER WHO UNIVERSAL BELIEVES IS CONTROLLED BY A -- CONTROLLED -- LET ME REPHRASE THE QUESTION. DID YOU DISCUSS WITH MR. GARY OR MR. DOUGLAS WHETHER THERE WERE OCCASIONS WHERE AN ADVICE LETTER WOULD GO OUT TO A PUBLISHER WHO UNIVERSAL BELIEVED WAS COVERED BY A CONTROLLED COMPOSITION CLAUSE VERSUS A REQUEST FOR A LICENSE? DID YOU DISCUSS THAT TOPIC WITH THEM? MR. KLAUS: OBJECTION. IT'S BEEN

ASKED AND ANSWERED SEVERAL TIMES NOW. THERE'S NO NEED FOR -- THERE'S NO NEED FOR MR. BUSCH TO ARGUE WITH YOU. IF YOU HAVE

SOMETHING DIFFERENT TO SAY, YOU CAN SAY IT.
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF CYNTHIA OLIVER
Page 72
12:40:01 12:40:03 12:40:04 12:40:04 12:40:07 12:40:09 12:40:09 12:40:10 12:40:12 12:40:15 12:40:17 12:40:20 12:40:22 12:40:25 12:40:27 12:40:28 12:40:30 12:40:34 12:40:34 12:40:34 12:40:37 12:40:38 12:40:40 12:40:43 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 MR. BUSCH: Q. DO YOU HAVE -- DID YOU DISCUSS THE YES OR NO? SHE SAID SHE DID.

ISSUE OF AN ADVICE LETTER? MR. KLAUS:

(THE DEPONENT NODDED.) MR. KLAUS: RICHARD. WHY ARE YOU -- WHY -- SHE SAID IT HAPPENED ON OCCASION. DON'T YOU ASK HER WHY? MR. BUSCH: NO. WHAT SHE SAID WHY DO YOU CONTINUE -- WHY SHE SAID SHE DID,

HAPPENED ON OCCASION WAS A REQUEST FOR A LICENSE. WHAT I'M ASKING IS: DID YOU

DISCUSS WHETHER THERE WERE ALSO OCCASIONS THAT AN ADVICE LETTER WOULD GO OUT RATHER THAN A REQUEST FOR A LICENSE? MR. KLAUS: AND ANSWERED. QUESTIONS AGO. THE DEPONENT: BY MR. BUSCH: Q. OKAY. AND DID YOU DISCUSS WITH AND THAT'S CORRECT. I THINK IT'S BEEN ASKED

I THOUGHT SHE SAID THAT IT DID FIVE

THEM WHY THERE WOULD BE OCCASIONS THAT AN ADVICE LETTER VERSUS A REQUEST FOR A LICENSE WOULD GO OUT?
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF CYNTHIA OLIVER
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12:40:47 12:40:48 12:40:53 12:40:56 12:40:59 12:41:02 12:41:06 12:41:11 12:41:14 12:41:16 12:41:19 12:41:22 12:41:25 12:41:27 12:41:30 12:41:33 12:41:35 12:41:38 12:41:40 12:41:44 12:41:48 12:41:50 12:41:54 12:41:56 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. Q. A.

YES. OKAY. AND WHAT DID THEY SAY?

THEY SAID THAT -- AND I THINK -- AS

I RECALL, MR. DOUGLAS HAD MORE INFORMATION IN THIS REGARD THAN MR. GARY. AND WHAT WE DISCUSSED WAS THAT AT ONE TIME, THERE REALLY WASN'T A PRACTICE OF ISSUING ADVICE LETTERS; THAT THE GENERAL -- THAT OPERATING PROCEDURE -- ALTHOUGH THERE WAS NO POLICY IN THIS REGARD, OPERATING PROCEDURE WAS THAT THEY WOULD ISSUE A MECHANICAL LICENSE, EVEN THOUGH THERE MIGHT BE A CONTROLLED COMP CLAUSE IN THE ARTIST'S CONTRACT, BECAUSE OFTENTIMES PUBLISHERS DID NOT WANT TO ACCEPT ADVICE LETTERS, AND THEY WOULD COME BACK AND REQUEST A LICENSE. OR, FOR EXAMPLE, IF YOU WERE ISSUING THE LICENSE TO HARRY FOX, YOU CANNOT -THEY WILL NOT ACCEPT AN ADVICE LETTER. SO THE

PUBLISHER WOULD REQUEST SPECIFICALLY A LICENSE. THEREFORE, IT WAS SOMETIMES EASIER FOR THE LICENSING MANAGERS, AND AS I RECALL TODD SAYING, TO JUST ISSUE A MECHANICAL LICENSE, BECAUSE IN THEIR DEALINGS WITH PUBLISHERS, OFTEN THEY DID NOT WANT AN ADVICE LETTER. Q. AND THIS IS WHAT MR. DOUGLAS TOLD
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF CYNTHIA OLIVER
Page 76
12:44:31 12:44:35 12:44:42 12:44:44 12:44:45 12:44:49 12:44:55 12:44:59 12:45:02 12:45:05 12:45:11 12:45:13 12:45:14 12:45:15 12:45:20 12:45:25 12:45:28 12:45:31 12:45:32 12:45:32 12:45:33 12:45:35 12:45:36 12:45:38 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

ADVICE LETTERS -- I'M SORRY -- ANOTHER REASON THAT REQUESTS FOR LICENSES RATHER THAN ADVICE LETTERS WOULD BE SENT TO PUBLISHERS WAS WHERE THE -- WAS BECAUSE -- TERRIBLE QUESTION. ALL OVER AGAIN IF I COULD. DID MR. GARY OR MR. DOUGLAS TELL YOU THAT ANOTHER REASON A REQUEST FOR A LICENSE RATHER THAN AN ADVICE LETTER WOULD BE SENT BY UNIVERSAL WOULD BE WHERE UNIVERSAL WAS UNCLEAR WHETHER THE CONTROLLED COMPOSITION CLAUSE AT ISSUE COVERED THE EXPLOITATION OF THE LICENSE? MR. KLAUS: AMBIGUOUS. THE DEPONENT: I DO NOT RECALL THAT IT WAS MORE THE OBJECTION; VAGUE AND LET ME JUST START

WE DISCUSSED THAT SPECIFICALLY.

CASE -- MY IMPRESSION WAS THAT IT WAS MORE THE CASE IN THEIR INDIVIDUAL DEALINGS WITH PUBLISHERS WHAT WORKED BEST IN DEALING WITH THAT PUBLISHER. MR. BUSCH: AS NONRESPONSIVE. BY MR. BUSCH: Q. I'M GOING TO ASK THE QUESTION. YOU SAID -MR. KLAUS: I OPPOSE SINCE IT WAS OKAY. I MOVE TO STRIKE

COMPLETELY RESPONSIVE, BUT GO AHEAD AND ASK YOUR
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KELLI NORDEN AND ASSOCIATES

DEPOSITION OF CYNTHIA OLIVER
Page 77
12:45:40 12:45:42 12:45:43 12:45:44 12:45:46 12:45:49 12:45:52 12:45:53 12:45:55 12:45:59 12:46:02 12:46:06 12:46:09 12:46:12 12:46:14 12:46:19 12:46:20 12:46:21 12:46:24 12:46:24 12:46:34 12:46:36 12:46:39 12:46:42 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

NEXT QUESTION. BY MR. BUSCH: Q. QUESTION AGAIN. YOU SAID YOU DID NOT DISCUSS THAT SPECIFICALLY, AND YOU SAID IT WAS MORE OF YOUR IMPRESSION FROM YOUR CONVERSATION, THAT IT WAS WHAT YOU SAID. BUT DID YOU DISCUSS WITH THEM AT ALL WHETHER THERE WERE OCCASIONS WHERE A REQUEST FOR A LICENSE WOULD BE SENT OUT RATHER THAN AN ADVICE LETTER IF UNIVERSAL HAD A QUESTION OR DOUBT ABOUT WHETHER THE CONTROLLED COMPOSITION CLAUSE COVERED THE EXPLOITATION SOUGHT IN THE LICENSE? A. THAT WAS NOT ONE OF THE REASONS OKAY. I'M GOING TO ASK THE

THAT THAT -- ONE OF THE RESPONSES THAT I RECEIVED. NO, IT WAS NOT. Q. OKAY. IT WAS NOT A RESPONSE YOU

RECEIVED FROM MR. DOUGLAS OR MR. GARY; CORRECT? A. Q. THAT'S CORRECT. OKAY. WHAT SUBJECTS DID YOU SPEAK YOU HAD IDENTIFIED DID

TO MR. HOFFMAN ABOUT?

MR. HOFFMAN AS SOMEBODY ELSE YOU SPOKE TO.

YOU RECEIVE ANY INFORMATION FROM MR. HOFFMAN ON ANY OF THESE TOPICS?
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES