Arista Records LLC et al v. Lime Wire LLC et al

Filing 189

DECLARATION of Elizabeth Cuneo in Opposition re: 168 MOTION to Strike Plaintiffs' Exhibits Filed as Part of Plaintiffs' Opposition to Defendants' MSJ and Defendants' Motion to Strike., 165 MOTION to Strike Plaintiffs' Exhibits Filed as Part of Plaintiffs' Opposition to Defendants' MSJ and Defendants' Motion to Strike.. Document filed by Capitol Records, Inc., Elektra Entertainment Group, Inc., Interscope Records, Laface Records LLC, Motown Record Company, L.P., Arista Records LLC, Priority Records LLC, Sony BMG Music Entertainment, UMG Recordings, Inc., Virgin Records America, Inc., Warner Bros. Records Inc., Atlantic Recording Corporation, BMG Music. (Forrest, Katherine)

CUNEO

DECLARATION

UNITED SOUTHERN

STATES

DISTRICT OF

COURT NEW YORK

DISTRICT

RECORDING LLC; ATLANTIC CAPITOL RECORDS CORPORATION; MUSIC; INC.; ELEKTRA ENTERTAINMENT GROUP INC.; INTERSCOPE LAFACE RECORDS RECORD RECORDS; LLC; MOTOWN RECORDS COMPANY, L.P.; PRIORITY LLC; SONY BMG MUSIC UMG ENTERTAINMENT; RECORDINGS, INC.; VIRGIN RECORDS AMERICA, INC.; and WARNER BROS. RECORDS INC., BMG

ARISTA

RECORDS

06 Civ. ECF

5936

(GEL)

CASE

Plaintiffs,
V.

LIME GREG LIMITED

WIRE

GROUP LLC; LIME LLC; MARK GORTON; and M.J.G. LIME WIRE FAMILY BILDSON;

PARTNERSHIP,
Defendants.

DECLARATION OPPOSITION
OPPOSITION OF PLAINTIFFS' TO TO

OF

ELIZABETH

CUNEO MOTIONS MOTION TO AND

IN

FURTHER FOR TO

SUPPORT

OF JUDGMENT

PLAINTIFFS' AND AS IN

DEFENDANTS'
DEFENDANTS' OPPOSITION JUDGMENT

SUMMARY

STRIKE

EXHIBITS MOTIONS STRIKE

FILED FOR

PART

DEFENDANTS' MOTION TO

SUMMARY

I, ELIZABETH
1. I
am
a

CUNEO,

hereby declare
with the law

as

follows:

legal

assistant

firm

of

Cravath,

Swaine

& Moore

LLP,

counsel

for

plaintiffs

in the

above-captioned
defendants' motions

action.

I submit

this

declaration
and

in further in support of Plaintiffs'

support
of

of

plaintiffs' opposition
to

to

for summary Strike Exhibits

judgment
Filed
as

plaintiffs' opposition Opposition
to

defendants'
Motions

Motion

to

Part

Defendants'
2. On

for

Summary Judgment,
I accessed

filed

November

7, 2008.

September 7, 2008,

the website

http://www.gutenberg.org
A Double Barreled

and searched

for the the

following works

of Mark

Twain:

A

Dog's Tale,

Detective

Story, Captain Stormfield's
The Man That

Visit

to

Heaven,

On the

Decay of
American

the Art

of Lying,
and

ls

Shakespeare Dead?, Sawyer Abroad.
Dead? which

Corrupted Hadleyburg, The
text

Claimant,
for Is

Tom

I found is available

that

plain

versions

of all of these

works

(except directly

Shakespeare
the

in MP3

format)
340

are

available
on

for download

from

Project
and

Gutenberg website.
correct

Plaintiffs'

Ex.

(submitted
results

September 26, 2008)
works
on

consists

of true

copies

of

printouts
On

of my

search

for these I listened

the

Project Gutenberg
III" and

website.

3.

September 6, 2008,
the CD

to the

songs

"Garden

"Gasaholic" and

provided
that the song

on

produced by defendants
III"
on

at Bates

LW

DE

2461415

(Ex. 496)
and 33

found

"Garden

this CD has
on

a

length
a

of

approximately
of

4 minutes 13 minutes

seconds

and

that the song

"Gasaholic"

this

CD

has

length

approximately

and

7 seconds.

4. Leaf

On

September 4, 2008,
concert

I searched

on

the

Internet

Archive

website

for Tea

Green's
Tea Leaf

March

3, 2005
March

but I

was

unable
at

to

locate

it.

However,

I found

recordings

from

Green's

5, 2005

concert

http://www.archive.org/details/tlg2005-03songs "The Garden

05.flacl6. Plaintiffs' screenshots downloaded
found that

From

this

website,

I downloaded

the

(Part III)" and "Gasaholic".
and
correct

Ex.

345

(submitted
and

on

September 26, 2008)

consists

of true

copies
to

of

of this website

of screenshots

from the folder
I listened

on

my

computer
that

which

I

these

songs. "The

On

September 6, 2008,
(Part III)" has
has
a a

to the

songs

I downloaded

and

the

song the

Garden

length
of

of

approximately

5 minutes

and

6

seconds

and

that

song On

"Gasaholic"

length

approximately
the website

12 minutes

and

23 seconds.

5.

September 23, 2008,
Plaintiffs'

I accessed

http://americasarmy.com/downloads/.
contains
a true

Ex.

364

(submitted
I took

on

September 26, 2008)
all the

and

correct

copy

of

a

printout from
-2-

this

website.

steps necessary

for

downloading directly
from

the America's

Army game

and

found
install

that

this

game the

is available

for download

this

website, without
On

having

to

or

use

LimeWire

software.

6.

September 23, 2008,
Plaintiffs'
a

I accessed

the website

http://www.berkleeshares.com/voice.
contains
a

Ex.

365

(submitted

on

September 26, 2008)
all the

true

and

correct

copy

of

printout from
lessons and

this

website.
that these

I took

steps necessary
are

for
for

downloading
download

Berklee

Shares

music

found

music

lessons
the

available software.

directly
7.

from

this

website,

without

having

to

install

or

use

LimeWire

On

September 23, 2008,
on

I accessed

the website 1 had made

http://dl.nin.com/theslip/signup (previously,
website
of which When

August 25,
on

2008

a

printout from this
and
correct

plaintiffs'
on

Ex.

369

(submitted

September 26, 2008)
for "the

is

a true

copy).
website

I clicked

the

link

regarding

the license

slip",
Plaintiffs'

I

was

redirected

to

the

http://creativecommons.org/licenses/by-nc-sa/3.0/us/.
is
a true

Ex.

370

(submitted

on

September 26, 2008)
8.

and

correct

copy

of

a

printout

from

this website.

On

August 25, 2008, I accessed
Plaintiffs'

the website Ex.

http://www.jamendo.com/en/alburn/3661.
consists of
a true

376

(submitted
I
was

on

September 26, 2008)
to

and

correct

copy and

of

a

printout

from

this

website.

able

download

the

songs
use

"Breathe", "Listen",
the

"Struttin'"

directly

from

this

website, without

having

to

install

or

LimeWire
9.

software.

I accessed

the websites

http://tryad.org/discography.php (on August 25,
and

2008), ht-tp://www.myspace.com/tryad (on September 4, 2008),

http://freealbums.blogsome.com/2008/06/14/tryad-listen/(on August
Ex. 377

25, 2008). Plaintiffs'

(submitted

on

September 26, 2008)

consists

of true

and

correct

copies

of

printouts from

-3-

these

websites.

I found

that

links

on

these

websites

for

Tryad's

album

"Listen"

directed

me

to

the

jamendo.com
10.

website

(see

supra

¶ 8).
I accessed

On

August 25, 2008,

the website
Ex. 379

http://www.marquisclassics.corn/319_start.asp.
2008) consists
the song "Start of
a true

Plaintiffs'
from

(submitted
I
was

on

September 26,
to

and

correct

copy this

of

a

printout

this

website.
to install

able

download

Again" directly from

website, without

having

or

use

the

LimeWire

software.

11.

On

September 22, 2008,

I accessed

the website

http://www.epitonic.com/index.j sp?refer=http%3 A%2F%2Fwww.epitonic.com%2Fartists%2Fa
mericananalogset.html.
and
correct

Plaintiffs'

Ex.

380

(submitted
I
was

on

September 26, 2008)
to

consists

of

a

true

copy

of

a

printout

from

this

website.

able

download

the

song

"The

Only

One"

directly

from

this

website, without
On

having

to

install

or

use

the LimeWire

soRware.

12.

August 25, 2008, I accessed

the website

http://music.download.com/appleseedcast/3600-8586_32-100064490html.
(submitted
website. I
on

Plaintiffs'

Ex.

381

September 26, 2008)
able
to

consists

of

a true

and

correct

copy from

of

a

printout from
website, without

this

was

download the

the

song

"Fight Song" directly

this

having

to

install

or

use

LimeWire

software.

13.

I accessed

the websites

http://craphound.corn/down/download.php (on

September 5, 2008), http://www.gutenberg.org/etext/8086 (on August 25, 2008),

http://www.gutenberg.org/dirs/etext05/dornkgl0h.htm (on September 4, 2008),
http://www.feedbooks.com/book/194 September 26, 2008)
all the consists of true

and

(on August 25, 2008). Plaintiffs'
and
correct

Ex.

382

(submitted
websites.

on

copies
and Out

of

printouts from

these

I took

steps necessary

for

downloading

"Down

In the

Magic Kingdom"

and

found

that

it

-4-

is available

for download

directly

from

these

websites,

without

having

to install

or

use

the

LimeWire

software.

14.

I accessed

the

websites

http://www.archive.org/details/MLKDream

(on

August 25, 2008), http://www.americanrhetoric.com/top100speechesall.html (on August 25,

2008), http://seattletimes.nwsource.com/special/mlk/king/speeches.html (on August 25, 2008),
and

http://blog.lextext.corn/blog/_archives/2006/1/15/1676937.html (on August 27, 2008).
Ex. 383

Plaintiffs'

(submitted
websites.

on

September 26, 2008)
was

consists

of true

and

correct

copies
Luther

of

printouts King's
the

from

these

I

able

to

download these

audio

and

text

files of Martin

"I Have

a

Dream

Speech" directly

from

websites,

without

having

to

install

or

use

LimeWire

software.

15.

On

September 4, 2008,

I accessed

the websites

http://www.gutenberg.org/etext/16780, http://www.constitution.org/usdeclar.pdf, and
http://manybooks.net/titles/americau1678016780-8.html. September 26, 2008)
able
to

Plaintiffs'
of

Ex.

384

(submitted
websites.

on

consists

of true

and

correct

copies

printouts
from these

from

these

I

was

download
or use

the Declaration the

of

Independence directly

websites,

without

having

to

install

LimeWire
On

sottware.
the websites

16.

August 25, 2008, I accessed

http://www.gpoaccess.gov/constitution/index.html, http://www.usconstitution.net/const.html,
http://www.law.comell.edu/constitution/constitution.overview.html. (submitted
websites.
without I
on

and

Plaintiffs'

Ex.

385

September 26, 2008)
able
to

consists

of true

and

correct

copies

of

printouts
from these

from

these

was

view

or

download
the LimeWire

the U.S.

Constitution

directly

websites,

having

to

install

or

use

software.

-5-

17.

On

August 25, 2008,

I accessed

the websites
Plaintiffs'

http://shakespeare.mit.edu
Ex. 387

and

http://www.bibliomania.com/0/6/3/frameset.html.
consists of true and
correct

(submitted

on

September 26, 2008)
able
to

copies
on

of

printouts from these websites. websites, without having
to

I

was

view

various

plays
software.

of

Shakespeare directly

these

install

or

use

the

LimeWire

I declare

under

penalty

of

perjury

that

the

above

is true

and

correct.

Executed

on

December

5, 2008

Elizabeth

Cuneo

-6-