Vargas et al v. Pfizer Inc. et al

Filing 124

DECLARATION of Paul A. Chin in Opposition re: 85 SECOND MOTION for Summary Judgment.. Document filed by Ralph Vargas. (Attachments: # 1 Exhibit 15 - expert report)(Chin, Paul)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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On December 1, 2006, Defendant BT submitted, inter alia, the declaration

of Brian Transeau ("Transeau Dec."), allegedly detailing the process he undertook to conduct his re-creation of Aparthenonia, and the supplemental declaration of Dr. Richard Boulanger ("Boulanger Dec."), detailing Dr. Boulanger' expert opinion on whether or s not Defendant BT' recreation of Aparthenonia was identical to the original s Aparthenonia. 4. These two declarations clearly show that: (i) Defendant BT did not utilize

the same materials (i.e. the G3 Apple computer and the Propellerhead Reason music software contained therein) to re-create Aparthenonia that he allegedly used to create the original Aparthenonia; and (ii) the re-created Aparthenonia is not identical to the original Aparthenonia. See, Transeau Dec., ¶5; Boulanger Dec., ¶3. Simply put, Defendant BT has been unable to independently re-create the music contained in the original Aparthenonia. 5. Moreover, there is no evidence that Defendant BT was able to re-create

the "ghost notes" found in the original Aparthenonia. Boulanger' declaration states that s he was presented with a "New Aparthenonia Hat... New Aparthenonia Snare... New Aparthenonia Kick." See, Boulanger Dec., ¶2. Boulanger does not mention that he was presented with or reviewed a sound, in the re-created Aparthenonia, which was a cross between a snare and tom-tom (i.e. ghost note). No-where in Defendant BT' declaration s does he mention how he created the "ghost notes," which appear in the original Aparthenonia, or that he "re-created" these ghost notes in the new Aparthenonia. See, Transeau Dec., et. seq.

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6.

Attached hereto as Plaintiffs' Exhibit 15 is a true and correct copy of the

supplemental expert declaration of Matthew Ritter (Plaintiffs' drum expert), which is titled "Analysis of Recreated Aparthenonia" (hereinafter "Ritter' Supp. Decl."). s Attached to Ritter' Supp. Decl. is a transcription of the musical notes and instruments s contained in Defendant BT' recreated versions of Aparthenonia. See, Plaintiffs'Ex. 15. s 7. According to Ritter' Supp. Decl. "[B]oth recreated versions of s

"Aparthenonia" ("NU Aparthenonia-W/TC" and "BT Nu Aparth") seem to be missing two snare drum ghost notes that appear in the original "Aparthenonia." Plaintiffs'Ex. 15, ¶3. In addition, Ritter has also determined that "[T]he second recreated version of "Aparthenonia" ("BT New Aparth") is also missing one of the open hit-hat sounds and the shifting of a bass drum note that occur in the 4th measure of the original "Aparthenonia." Id. 8. Based on these declarations the Court is left with the following

supplemental facts: (i) Defendant BT failed to use the same materials (i.e. the G3 Apple computer and the Reason music software contained therein) to conduct his recreation of Aparthenonia that he allegedly used to create the original Aparthenonia; (ii) Defendant BT failed to explain how he created the "ghost notes" which are supposed to be included in his recreated versions of Aparthenonia; (iii) Defendant BT' recreated versions of s Aparthenonia do not contain "ghost notes" and at least one of the recreated versions is missing an open hi-hat and shifting bass drum note contained in the original Aparthenonia; and (iv) Defendant BT' recreated versions of Aparthenonia is not s identical to the original Aparthenonia.

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9.

In short, these supplemental declarations clearly establish that Defendant

BT was unable to fulfill the mandate issued by this Court, i.e. recreate a duplicate of the original Aparthenonia. Defendant BT' failure to meet this Court' mandate undermines s s his claim of independent creation and his motion for summary judgment must be denied. Dated: New York, New York January 23, 2007 Respectfully submitted, s/Paul Chin Paul A. Chin, Esq. (PC9656) LAW OFFICES OF PAUL A. CHIN The Woolworth Building 233 Broadway, 5th Floor New York, NY 10279 [phone] Attorneys for Plaintiffs

TO:

Julie Ahrens, Esq. Kirkland & Ellis, LLP 555 California Street, Suite 2700 San Francisco, CA 94104 Counsel for Defendant Transeau David S. Olson, Esq. Center for Internet and Society Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 Counsel for Defendant Transeau Eric M. Stahl, Esq. Davis Wright Tremaine, LLP 1501 4th Avenue, Suite 2600 Seattle, WA 98101-1688 Counsel for Defendant East West Communications

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CERTIFICATE OF SERVICE On the 23rd day of January, 2007, a true and correct copy of the SUPPLEMENTAL DECLARATION OF PAUL A. CHIN IN OPPOSITION TO DEFENDANT BRIAN TRANSEAU' MOTION FOR SUMMARY JUDGMENT, with S the exhibits attached thereto, was served pursuant to Local Rule 5.2 of the U.S. District Court for the Southern and Eastern Districts of New York to the following attorneys representing the Defendants: Julie Ahrens, Esq. Kirkland & Ellis, LLP 555 California Street, Suite 2700 San Francisco, CA 94104 Counsel for Defendant Transeau David S. Olson, Esq. Center for Internet and Society Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 Counsel for Defendant Transeau Eric M. Stahl, Esq. Davis Wright Tremaine, LLP 1501 4th Avenue, Suite 2600 Seattle, WA 98101-1688 Counsel for Defendant East West Communications

1/23/07 Date

s/Paul Chin Paul A. Chin, Esq. (PC 9656) LAW OFFICES OF PAUL A. CHIN The Woolworth Building 233 Broadway, 5th Floor New York, NY 10279 [phone] Attorneys for Plaintiffs

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