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-D Excerpts of transcript pages from the deposition of Chad Gary taken on May 6, 2008

5005843.1

DEPOSITION OF CHAD GARY
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 CHAD GARY, TAKEN ON BEHALF OF THE PLAINTIFFS, AT 10250 CONSTELLATION BOULEVARD, 19TH FLOOR, LOS ANGELES, CALIFORNIA, COMMENCING AT 10:07 A.M., TUESDAY, MAY 6, 2008, BEFORE SAMANTHA AVENAIM, CSR NUMBER 10627.

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF CHAD GARY
Page 90
12:08:24 12:08:26 12:08:30 12:08:34 12:08:55 12:08:56 12:08:58 12:09:01 12:09:05 12:09:08 12:09:13 12:09:15 12:09:17 12:09:18 12:09:18 12:09:24 12:09:29 12:09:31 12:09:36 12:09:39 12:09:49 12:09:49 12:09:49 12:09:49 12:09:49 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.

WELL, MY EXPLANATION IS THAT THIS

ISSUE MUST HAVE BEEN ESCALATED, AND EITHER PAT OR SOMEONE IN BUSINESS AFFAIRS LOOKED AT IT AND FELT IT WAS OKAY. Q. DO YOU RECALL MY TESTIMONY -- DO

YOU RECALL MY QUESTION OF EARLIER TODAY WHERE I ASKED YOU WHETHER IT WAS THE PRACTICE OF UNIVERSAL, IF IT HAD THE RIGHT UNDER THE CONTROLLED COMPOSITION CLAUSE TO EXPLOIT COMPOSITIONS DIGITALLY, TO SEND LICENSES LIKE THE ONES WE'RE GOING OVER TO PUBLISHERS, AND YOU SAID, "NOT GENERALLY." DO YOU RECALL THAT TESTIMONY? A. Q. YES. IF I WERE TO SHOW YOU 20 OR 30 MORE

LICENSES LIKE THE ONES I'VE SHOWN YOU SO FAR AND ASKED YOU WHETHER YOU HAVE ANY EXPLANATION WHY THOSE SEPARATE LICENSES WERE SENT OUT FOR SIGNATURE SEPARATE AND APART FROM THE CONTROLLED COMPOSITION CLAUSE, WOULD YOUR ANSWER BE THE SAME AS IT WAS ON THE ONES I SHOWED YOU, WHICH IS YOU DON'T RECALL OR KNOW? MR. POMERANTZ: FORM. ///
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OBJECTION TO THE

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF CHAD GARY
Page 91
12:09:49 12:09:49 12:09:50 12:09:52 12:09:57 12:10:01 12:10:04 12:10:05 12:10:07 12:10:09 12:10:12 12:10:12 12:10:12 12:10:14 12:10:14 12:10:15 12:10:17 12:10:20 12:10:23 12:10:27 12:10:31 12:10:31 12:10:38 12:10:48 12:10:54 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. A. GO AHEAD. EVEN THOUGH I DON'T RECALL OR DON'T

KNOW, AN ISSUE LIKE THIS IS PROBABLY AN ARTIST-RELATION ISSUE, WHERE EVEN THOUGH WE MAY HAVE A LEGAL RIGHT, WE WANT TO MAINTAIN GOOD ARTIST RELATIONS. Q. IS THIS SOMETHING YOU'RE

SPECULATING ON SINCE YOU SAY YOU DON'T KNOW, AND YOU DON'T KNOW SPECIFICALLY WHY THESE LICENSES ARE SENT? A. Q. YEAH. OKAY. THIS IS NOT BASED ON

PERSONAL KNOWLEDGE? A. Q. A. NO. OKAY. IT'S BASED ON THE PERSONAL

KNOWLEDGE THAT I KNOW WE'VE DONE THAT BEFORE, BUT NOT -- I CAN'T BE SPECIFIC ABOUT THIS LICENSE. Q. A. Q. OR THESE LICENSES IN THIS CASE? RIGHT. AND IN CONNECTION WITH THESE

COMPOSITIONS AT ISSUE IN THIS CASE, WOULD IT BE FAIR TO SAY THAT AS FAR AS WHETHER UNIVERSAL CONCLUDED IT HAD THE RIGHT OR DIDN'T HAVE THE
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES