Arista Records LLC et al v. Lime Wire LLC et al
ENDORSED LETTER addressed to Magistrate Judge Debra C. Freeman from Mary Eaton dated 11/29/10 re: In accordance with Your Honor's November 2 Order, Defendants submit this letter brief to show that actual damages - that is, any lost profits Plaintiffs allegedly suffered by virtue of Defendants' conduct - are relevant to the determination of statutory damages in this action. If Plaintiffs have not suffered any actual damage due to Defendants' conduct, that is highly relevant as well. As a result, Plaintiffs should be ordered to produce information sufficient to show the profits (or losses, if any) that they have made (or allegedly suffered) on the copyrighted works allegedly attributable to Defendants' conduct. ENDORSEMENT: The Court having reviewed and considered the parties' submissions on the question of whether Plaintiffs' expenses (as opposed to revenues) on post-1972 works should be the subject of discovery; and the Court being persuaded that Defendant should be given enough discovery to enable it to pursue an argument that the statutory damages being sought by Plaintiffs would be disproportionate to any actual damages; it is hereby ORDERED that Plaintiffs should produce documents sufficient to show their royalty expenses for a sample set of post-1972 songs and albums, such sample to be selected as follows: (1) Defendant may select 100 works (80 songs and 20 albums) that it believes would be representative; (2) Plaintiff may then select another 100 works (again, 80 songs and 20 albums) that they believe would be representative, and (3) an additional 100 works (80 works and 20 albums) shall be selected at random from the remainder. The royalty information for these works may be produced pursuant to a Confidentiality Order. So ordered. (Signed by Magistrate Judge Debra C. Freeman on 12/14/10) (rjm)
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