Almer v. Peanut Corporation of America

Filing 288

Almer v. Peanut Corporation of America

Doc. 288 Att. 5

EXHIBIT E
Dockets.Justia.com

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ----------------------------------------------------------) Virgin Records America, Inc., ) File No. CV-06-1497 a California corporation; ) (MJD/RLE) Capitol Records, Inc., a ) Delaware corporation; Sony BMG ) Music Entertainment, a ) Duluth, Minnesota Delaware general partnership; ) October 2, 2007 Arista Records, LLC, a ) 9:05 a.m. Delaware limited liability ) company; Interscope Records, a ) California general ) partnership; Warner Bros. ) Records, Inc., a Delaware ) corporation; and UMG ) Recordings, Inc., a Delaware ) corporation, ) ) Plaintiffs, ) ) vs. ) ) Jammie Thomas, ) ) Defendant. ) ) ----------------------------------------------------------BEFORE THE HONORABLE MICHAEL J. DAVIS and a Jury UNITED STATES DISTRICT COURT JUDGE (TRIAL - VOLUME I)

Proceedings recorded by mechanical stenography; transcript produced by computer.

LORI A. SIMPSON, RMR-CRR [phone]

2 1 2 3 4 5 For the Defendant: 6 7 8 Court Reporter: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LORI A. SIMPSON, RMR-CRR 1005 U.S. Courthouse 300 South Fourth Street Minneapolis, Minnesota 55415 Chestnut & Cambronne BRIAN N. TODER, ESQ. Suite 3700 222 South Ninth Street Minneapolis, Minnesota 55402 APPEARANCES For the Plaintiffs: Holme, Roberts & Owen RICHARD L. GABRIEL, ESQ. TIMOTHY M. REYNOLDS, ESQ. Suite 4100 1700 Lincoln Street Denver, Colorado 80203

LORI A. SIMPSON, RMR-CRR [phone]

112 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 counsel to confirm that these are your recordings? A. Q. A. Yes. What did you do? I've seen the files and they match perfectly the artist

and song title associated with the copyrighted work owned by my company. Q. Ma'am, you identified, as I counted them, eight Sony BMG

and Arista sound recordings that are at issue in this case, correct? A. Q. Correct. Do you know whether Sony BMG Music and Arista have

registered copyrights in any or all of those sound recordings? A. Q. A. Q. We have registered copyrights in all of them. Would you look at Exhibit 3, please. Yes. Okay.

And I'd ask you to flip through Exhibit 3 and see if

you -- tell us if you see any documents that relate to your testimony that Sony BMG and Arista registered these copyrights. A. Okay. The first one that comes up in the book is We register copyrights

Journey and it's SR number 30-088. by album, not by track. That's the first one. The next one --

So this is for the album Escape.

LORI A. SIMPSON, RMR-CRR [phone]

113 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 them. BY MR. GABRIEL: Q. Did Sony BMG and Arista register all of these numbers? MR. GABRIEL: THE WITNESS: Yes. Thank you. MR. TODER: Counsel, could you refer to Bates

It's Bates 0016.

The next one is Destiny's Child for the album The Writing's On the Wall. Bates 28 and 29. The next one is Surfacing by Sarah McLachlan. That's SR 243-027, Bates 26 and 27. The next one is Gloria Estefan, Cuts Both Ways, SR 0 -- I'm sorry -- 107-742. That's Bates 583 and 584. This is SR 268-936 and that is

The next one is Journey for the album Frontiers, SR 43-228, Bates number 571 and 572. And we have Sarah McLachlan's Fumbling Towards Ecstasy, SR 200-152, Bates 591 and 592. The next one is Gloria Estefan, Into the Light, SR 208-812, Bates 593 and 594. Next is Gloria Estefan, Let It Loose, SR 83-468, Bates 577 and 578. I think that's it. That appears to be all of

copyrights? A. Yes.

LORI A. SIMPSON, RMR-CRR [phone]

114 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 MR. GABRIEL: I move Exhibit -- those portions,

Your Honor, the eight identified in Exhibit 3. MR. TODER: THE COURT: BY MR. GABRIEL: Q. Now, Ms. Pariser, as you flipped through and looked at No objection. Be admitted.

all of those, did you not notice that some -- strike that. Let me ask first: The copyright registration

forms have the name of the entity registering the copyrights; isn't that correct? A. Q. That's correct. Did you notice that some of the names of the registrants

did not match exactly the name Sony BMG Music or Arista? A. Q. Yes. For example, you saw some that said, "CBS Records,

Inc."? A. Q. A. Q. Yes. And at least one called CBS, Inc.? Yes. Do Sony BMG Music and/or Arista own the copyrights in

all of those? A. Q. A. Yes, every one. Can you explain that. Yes. The names on the SR's -- we call them SR's. The names on the SR's for That

stands for sound recording.

LORI A. SIMPSON, RMR-CRR [phone]

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ----------------------------------------------------------) Capitol Records, Inc., a ) File No. CV-06-1497 Delaware corporation; Sony BMG ) (MJD/RLE) Music Entertainment, a ) Delaware general partnership; ) Arista Records, LLC, a ) Duluth, Minnesota Delaware limited liability ) October 3, 2007 company; Interscope Records, a ) 9:00 a.m. California general ) partnership; Warner Bros. ) Records, Inc., a Delaware ) corporation; and UMG ) Recordings, Inc., a Delaware ) corporation, ) ) Plaintiffs, ) ) vs. ) ) Jammie Thomas, ) ) Defendant. ) ) -----------------------------------------------------------

BEFORE THE HONORABLE MICHAEL J. DAVIS and a Jury UNITED STATES DISTRICT COURT JUDGE (TRIAL - VOLUME II)

Proceedings recorded by mechanical stenography; transcript produced by computer.

LORI A. SIMPSON, RMR-CRR [phone]

280 1 2 3 4 5 For the Defendant: 6 7 8 Court Reporter: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LORI A. SIMPSON, RMR-CRR 1005 U.S. Courthouse 300 South Fourth Street Minneapolis, Minnesota 55415 Chestnut & Cambronne BRIAN N. TODER, ESQ. Suite 3700 222 South Ninth Street Minneapolis, Minnesota 55402 APPEARANCES For the Plaintiffs: Holme, Roberts & Owen RICHARD L. GABRIEL, ESQ. TIMOTHY M. REYNOLDS, ESQ. Suite 4100 1700 Lincoln Street Denver, Colorado 80203

LORI A. SIMPSON, RMR-CRR [phone]

471 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 questions. Q. And the registration has been filed with the Copyright

Office, correct? A. Yeah, the application has been filed and we are waiting

for the registration to come back. Q. A. And you haven't received the registration come back? That's correct. There is a backlog at the U.S.

Copyright Office. Q. Is it your understanding, ma'am, that having filed the

registration, UMG could pursue that recording in this case? THE COURT: Counsel, why don't you ask nonleading

This is your witness. MR. GABRIEL: I'll do that.

BY MR. GABRIEL: Q. Why have you chosen not to pursue that copyright

recording in this case, Godsmack's -- I'm sorry -Godsmack's "Moon Baby" in this case? A. Although UMG does own that recording, for simplicity's

sake, because the certificate hasn't been issued yet, we opted to withdraw that from the case. Q. Ma'am, you've identified a number of UMG and Interscope

recordings that are at issue, right? A. Q. Yes, I have. Do you know whether UMG and Interscope Records have

registered the copyrights in those recordings? A. Yes, they have.

LORI A. SIMPSON, RMR-CRR [phone]

472 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 Q. A. Q. Could I ask you to look at Exhibit 3, please. I have it in front of me. And, ma'am, I would like to ask you if you would flip

through Exhibit 3 and tell us when you come to a UMG or Interscope copyright registration form; and when you get there, identify it by the SR number and the Bates number for counsel. A. The first one is SR number 206-724, Bates number

Thomas, J (MN)0022 and 23. Q. A. Which song is that for? It relates to all the tracks on the No Doubt album So it relates specifically to the recording

Tragic Kingdom.

"Different People." Q. A. Please continue. The next one is SR 85-358, Bates number 0579 to 80.

This is for the album Appetite For Destruction by Guns N' Roses and the recordings thereon. So it relates

specifically to the Guns N' Roses recording "Welcome to the Jungle." The next one is SR 111-365, Bates number 0587 through 88, which relates to the Vanessa Williams album The Comfort Zone and the recordings thereon. recording "Let's Wait Awhile" [sic]. Q. A. I'm sorry. I apologize. Ma'am, what SR number was that? It's SR 141-365. So it applies to

LORI A. SIMPSON, RMR-CRR [phone]

473 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 Q. A. And which recording is that? Vanessa Williams, "Save the Best For Last." It applies

to the album The Comfort Zone. Q. Thank you. And then if you can go back to Guns N' Which particular Guns N'

Roses.

I may have misheard you.

Roses' track are you talking about that relates to this case? A. That is -- the track that's at issue in this case is

"Welcome to the Jungle," which was on the album Appetite For Destruction. Q. A. Q. A. Q. A. Q. A. And what SR number is that? 85-358. Thank you. Please continue.

The next one is SR 69-529, Bates number 0575 through 76. I'm sorry. SR 69-529. And what recording does that relate to? It relates to the Janet Jackson recording "Let's Wait Again, which SR number?

Awhile." The next one is SR 153-061, Bates number 0589 through 90, and this relates to the recording "Cryin'" by Aerosmith. The next one is SR 90-420, Bates number 0581 through 82, and this relates to Def Leppard's "Pour Some Sugar on Me."

LORI A. SIMPSON, RMR-CRR [phone]

474 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 next one is SR 256-807, Bates number 0601 to 0602, which relates to Reba McIntyre's "One Honest Heart." The next one is SR 58-024, Bates number 0573 through 74. This relates to "Somebody" by Bryan Adams.

The next one is SR 279-727, Bates number 0603 through 0604. No Doubt. The next one is SR 305-872, Bates number 0607 through 0608, and this relates to "Hella Good" by the artist No Doubt. The next one is SR 209-823, Bates number 0595 through 0596, and this relates to "Run, Baby, Run" by Sheryl Crow. And then SR 134-647, Bates number 0585 through 0586, and that relates to the track "November Rain" by Guns N' Roses. Q. A. Q. A. Q. Have you now found all of them, ma'am? That's the end of the exhibit, yes. Ma'am, each of these has a date on it? Yes, they do. Were each of these documents prepared on or about the This relates to the track "Bathwater" by

dates that they bear? A. Q. Yes. Were they prepared in the ordinary course of UMG's

business?

LORI A. SIMPSON, RMR-CRR [phone]

475 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. TODER: Q. You were just asked, Ms. Cho, about how these documents A. Q. Yes, they were. Were they maintained in the ordinary course of UMG's

business? A. Yes, they are. MR. GABRIEL: Your Honor, I'll move those

exhibits -- or those documents within Exhibit 3. MR. TODER: Your Honor? THE COURT: You may. May I voir dire the witness on those,

VOIR DIRE EXAMINATION

were prepared and who prepared them. A. Q. A. I did not, no. Do you know who prepared these documents? There's a signatory on each of these documents. They

were prepared by the copyright departments of the various record labels. Q. They weren't necessarily prepared by your company,

correct? A. I guess I'm not sure what you mean by my company. They

were -- all the companies listed on these are either Interscope Records or predecessors of the UMG Recordings group. Q. So the David Geffen Company is related to Interscope or

LORI A. SIMPSON, RMR-CRR [phone]

476 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 UMG? A. Q. A. Yes, it is. How is it related? The David Geffen Company, which later changed its name

to Geffen Records, Inc., was merged into UMG Recordings, Inc., in 1999. Q. A. What about Polygram? Polygram Records, Inc., is a former name of UMG It's the same company.

Recordings, Inc. Q. A. A&M Records?

A&M Records, Inc., was merged into UMG Recordings, Inc.,

also in 1999. Q. And we just mentioned Geffen. I guess there's two,

there's a David Geffen Company and there's Geffen Records, Inc. A. The David Geffen Company is a former name of Geffen After it changed its name, it was merged into

Records, Inc.

UMG Recordings, Inc. Q. A. Mercury Records? Mercury Records was a label name of Polygram Records,

Inc., which subsequently changed its name to UMG Recordings, Inc. Q. A. MCA Records Nashville? MCA Records Nashville is a division. I believe on this It is

SR it's listed as a division of MCA Records, Inc.

LORI A. SIMPSON, RMR-CRR [phone]

477 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 (3:25 p.m.) Honor. THE COURT: MR. GABRIEL: THE COURT: Be admitted. Thank you, Your Honor. Let's stop here and take a 15-minute All rise for the jury. still a division, but MCA Records, Inc., was merged into UMG Recordings, Inc., again in 1999. Q. And these certificates of copyrights that we have just

been talking about, these were certificates of copyrights that you produced to defendant when we asked for requests for production of documents? A. Q. A. Q. A. Q. I wasn't involved in producing documents. Did you sign a verification? For the production of documents? Yes, for interrogatories. I did. And didn't the interrogatories refer to certain

documents that were going to be produced? A. I believe it did. I don't recall what specific

documents those were. Q. Well, we'll get to that on cross. MR. TODER: In the meantime, no objection, Your

break, take a 15-minute break. (Recess taken at 3:10 p.m.) * * *

*

*

LORI A. SIMPSON, RMR-CRR [phone]

501 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. Q. Yes, I did. And what did you find? We did not spoof these songs. Ma'am, of the three Warner Bros. Records that you just

identified, do you know whether Warner Bros. Records has registered the copyrights in any or all three of those? A. Q. A. Q. All three, yes. And that's part of your job, correct? Yes, it is. Can I ask you to look at Exhibit 3, please. Ma'am, when

you get there, I will ask you to flip through that exhibit and when you get to one that -- a recording that's one of yours, would you let us know, tell us the SR number and there's something called a Bates number at the bottom. A. Okay. First one is SR 185-457. It is for the recording

"Basket Case" by Green Day and it's Thomas J, (MN)0020. Q. A. All right. The next one is SR 246-538. It's for "Iris" by the

Goo Goo Dolls and it's Thomas J, (MN)0599. The last one is SR 288-402. That's for "One Step

Closer" by Linkin Park, Thomas J, (MN)0605. Q. Thank you, ma'am. Did you notice that there are dates

on all these SR's? A. Q. Yes. Were these prepared on or about the date that they bear?

LORI A. SIMPSON, RMR-CRR [phone]

502 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. Yes. And are these documents prepared in the ordinary course

of Warner Bros. Records' business? A. Q. Yes, they are. Are they kept in the ordinary course of Warner Bros.

Records' business? A. Yes, they are. MR. GABRIEL: MR. TODER: THE COURT: BY MR. GABRIEL: Q. Ms. Brown, prior to the issues that bring us here, did Move those three SR's, Your Honor. No objection. Be admitted.

Warner Bros. sell legitimate versions of these three recordings? A. Q. Yes, we did. Are you familiar with something called a copyright

notice? A. Q. A. Q. A. Yes. What do you understand that to be? A little "C" circle. And were those notices placed on these recordings? Yes. MR. GABRIEL: THE COURT: BY MR. GABRIEL: Your Honor, may I approach? You may.

LORI A. SIMPSON, RMR-CRR [phone]

508 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 defendant had distributed a recording by Janet Jackson by the title of -- I think it's called "Come Back to Me." It's

a title similar to "Back," but it wasn't exactly "Back." And that recording is actually owned by Universal, one of the co-plaintiffs in this case. version -- I'm sorry. It's not the

It's not the recording "Back" by

Janet Jackson that Virgin owns and therefore Virgin has dropped its claim with respect to the recording "Back." Q. A. Do you understand how "Back" got on this list? You know, I don't specifically. Again, they have

similar titles and I think it was -- I assume it was just an error in transcription. When creating this Exhibit A, "Come Instead of I think that's

Back to Me" was written down as "Back."

Universal, Virgin was listed as the owner. how it happened. Q.

And once that clerical error came to your attention,

Virgin Records decided not to pursue that recording? A. Q. That's correct. Sir, you identified the one Capitol recording, Capitol

Records recording at issue in the case, the Richard Marx song, correct? A. Q. Yes. Do you know whether Capitol has registered a copyright

in that recording? A. I do, yes.

LORI A. SIMPSON, RMR-CRR [phone]

509 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 Q. A. Q. Could I ask you to look at Exhibit 3. Sure. Okay.

And if I could ask you to look through that and see if

you can find the SR for that recording. A. Yes, I have it here. I think it's the second SR in this

packet. Q. A. Q.

It's SR number 210-246.

The Bates number too, please? I'm sorry. The Bates number is Thomas, J 0024 and 0025.

Did Capitol Records prepare -- there's a date on there,

correct? A. Q. Correct. And did Capitol Records prepare this document on or

about the date it bears? A. Q. Yes. As far as I know, yes.

And was it created in the ordinary course of Capitol's

business? A. Q. A. Yes. Was it kept in the order course of Capitol's business? Yes, it was. MR. GABRIEL: MR. TODER: THE COURT: BY MR. GABRIEL: Q. Mr. Bavitz, did Capitol Records ever give the defendant, Move Exhibit 5, Your Honor. No objection. Be admitted.

Jammie Thomas, a license or authorization to copy any of its

LORI A. SIMPSON, RMR-CRR [phone]

512 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 Honor? THE COURT: (Pause.) MR. GABRIEL: MR. TODER: No further questions, Your Honor. Thank you, Your Honor. (Indicating.) accompanies the CD. Q. Thank you, sir. MR. GABRIEL: Your Honor, just as housekeeping, I

cannot remember if I offered the Capitol certificate of registration that was in Exhibit 3. that. I think I did. MR. TODER: MR. GABRIEL: I'm sorry? The Capitol SR in Exhibit 3, I can't I think I did. If I haven't, I'll move

remember if I moved it in. MR. TODER: object anyway. THE COURT: MR. GABRIEL:

If you did not -- well, we don't

Be admitted. I think I neglected, Your Honor,

when I showed the last witness, Ms. Brown, the CD's, the actual CD's that Warner owns, I think I neglected to move those into evidence. MR. TODER: THE COURT: MR. GABRIEL: I would move those. No objection. Be admitted. If I can just have a moment, Your

LORI A. SIMPSON, RMR-CRR [phone]