Baseball Quick, LLC v. MLB Advanced Media. L.P. et al

Filing 58

DECLARATION of Dinn Mann in Support re: 55 MOTION for Summary Judgment.. Document filed by MLB Advanced Media. L.P.. (Attachments: # 1 Ex. A, # 2 Ex. B, # 3 Ex. C, # 4 Ex. D)(Wang, Peter)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------X : : BASEBALL QUICK, LLC, : : Plaintiff, : : MLB ADVANCED MEDIA, L.P., ET AL., : : Defendants. : ----------------------------------------------------------X Civil Action No. 11-CV-01735 (TPG)(MHD) DECLARATION OF DINN MANN IN SUPPORT OF ADVANCED MEDIA’S MOTION FOR SUMMARY JUDGMENT OF NO INFRINGEMENT In accordance with 28 U.S.C. § 1746, I, Dinn Mann, declare as follows: 1. I am the Executive Vice President, Content of MLB Advanced Media, L.P. (“Advanced Media”). I make this declaration in support of Advanced Media’s motion for summary judgment of no infringement in the above captioned action. 2. I have personal knowledge of the matters described herein, and on that basis provide the following. MLB CONDENSED GAMES 3. Advanced Media provides edited compilations of baseball game highlights (“MLB Condensed Games”) for viewing on MLB.com. MLB Condensed Games are compilations of highlights of previously played baseball games that include specific plays, camera angles, replays, and fan reactions to tell the story of the game. 4. Advanced Media does not edit any game recording of each appearance-at-bat to produce an edited recording by deleting substantially all game action other than (i) game action from a final pitch thrown to each player, (ii) successful attempts of runners on base to advance to another base not associated with the game action resulting from the final pitch and (iii) unsuccessful attempts of the runners on base to advance to another base resulting in an out not associated with the game action resulting from the final pitch. 5. Instead, Advanced Media takes the feed from the baseball games that it receives and employs a subjective editing process. This subjective editing process utilizes the feed of the full-length baseball game received from whatever entity or entities telecast the game as the game is being played. 6. During the subjective editing process, which occurs in New York, outs that the editor deems to be “routine” outs (i.e., routine ground ball or fly ball outs) are removed from the edited recording. Accordingly, as a result of this subjective editing process, many plate appearances are omitted entirely from every recording that is edited by Advanced Media. Since at least the end of the 2009 MLB season (November 4, 2009), none of the MLB Condensed Games edited by Advanced Media include the final pitch thrown to each player at each appearance-at-bat. 7. Advanced Media does not obtain subscribers or require a subscription of any kind for access to MLB Condensed Games. 8. After the MLB Condensed Games are edited in the above-described editing process, they are made available on MLB.com on the “MLB.com Media Center” webpage. A visitor to MLB.com clicks on the “Watch/Listen” link under the “Video” tab on MLB.com’s homepage to access the “MLB.com Media Center” webpage. A visitor also can access the “MLB.com Media Center” webpage directly at “http://mlb.mlb.com/mediacenter.” Anyone with an Internet connection may access the “MLB.com Media Center” webpage using either method. 9. When a visitor to MLB.com visits the “MLB.com Media Center” webpage and clicks on 2 the “Condensed Game” link for a particular baseball game, the edited recording of that game is made available to the visitor at no charge. 10. No subscription is required to access the “MLB.com Media Center” webpage and a visitor does not have to log in (i.e., enter a password or PIN) to MLB.com to access this webpage or view the contained Condensed Games. 11. The availability of MLB Condensed Games without subscription and without charge has been in place since at least April 19, 2009. 12. For all Major League Baseball games that took place prior to December 8, 2009, the recording and editing of these games into MLB Condensed Games occurred prior to December 8, 2009. GEORGE MOCKRY E-MAILS 13. Since at least 2008, Mr. George Mockry has sent e-mails to my MLB.com e-mail address regarding what he refers to as the “Baseball Quick” patent idea. Mr. Mockry’s e-mails regarding “Baseball Quick” have a wide distribution. Based on the addresses of the other recipients, Mr. Mockry sent his “Baseball Quick” e-mails to Advanced Media as well as many other media organizations that cover baseball. 14. Attached as Exhibit A is a true and correct copy of an e-mail sent by Mr. George Mockry to myself and many others dated February 12, 2009. 15. Attached as Exhibit B is a true and correct copy of an e-mail sent by Mr. George Mockry to myself and many others dated March 6, 2009. 16. Attached as Exhibit C is a true and correct copy of an e-mail sent by Mr. George Mockry to myself and many others dated March 22, 2009. 17. Attached as Exhibit D is a true and correct copy of an e-mail sent by Mr. George Mockry 3

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