Capitol Records, LLC v. Redigi Inc.
Filing
116
TRANSCRIPT of Proceedings re: CONFERENCE held on 8/9/2013 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Patricia Nilsen, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/23/2013. Redacted Transcript Deadline set for 10/3/2013. Release of Transcript Restriction set for 12/5/2013.(Rodriguez, Somari)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CAPITOL RECORDS, LLC,
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Plaintiff,
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v.
REDIGI INC.,
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12 CV 95(RJS)
Defendant.
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August 9, 2013
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10:11 a.m.
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Before:
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HON. RICHARD J. SULLIVAN,
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District Judge
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APPEARANCES
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COWAN LIEBOWITZ & LATMAN
Attorneys for Plaintiff
BY: RICHARD MANDEL
JONATHAN KING
DAVIS SHAPIRO & LEWIT LLP
Attorneys for Defendant
BY: GARY ADELMAN
SARAH MATZ
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SOUTHERN DISTRICT REPORTERS, P.C.
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(In robing room)
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(Case called)
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THE COURT:
All right.
We're here in connection with
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the plaintiff's contemplated -- well, I guess their
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contemplated motion to amend.
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of you on this.
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So I've gotten letters from both
And there's a couple of issues.
In terms of amending out certain claims, I assume you
don't care?
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MR. ADELMAN:
Nope.
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THE COURT:
So that's fine.
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In terms of the additional song titles, I think we
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certainly contemplated that.
And I think, you know, certainly
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with respect to reproduction, that that's -- I mean, that's
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what the whole opinion I wrote was about.
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all turns on distribution, which is what was allowed for the
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focus of your letter.
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MR. ADELMAN:
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THE COURT:
So I don't think it
Correct.
I just want to be clear.
You're talking
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about adding song titles of recordings that were reproduced
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into the cloud and then offered for sale?
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MR. MANDEL:
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THE COURT:
Correct.
Not merely ones that may have been
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reproduced by a Redigi customer who wanted to just use it for
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storage?
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MR. MANDEL:
Correct.
Every one of the recordings was
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offered for sale, according to defendant.
THE COURT:
So I think that's fair game here.
If it
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was the other, I think there's a fair use.
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fair use defense.
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will be if we just store it, I don't think that -- reproduction
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is probably not appropriate in this case.
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just said, then I think then I'm inclined to allow it.
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that is fair game, in light of my opinion.
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There would be a
I don't have a rule on that, but I think it
But for what you
I think
And then the last bit is with respect to amending to
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name two new defendants, individual defendants.
And so let's
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think about this.
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individuals in some cases explicitly.
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reason to believe that these guys could be added, and there
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could be liability against them.
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to be additional facts developed, though.
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to add them is not going to require any additional discovery,
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then I think I probably will allow it.
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require additional discovery, then I'm not so sure.
I do think that my opinion referenced these
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MR. MANDEL:
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THE COURT:
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MR. MANDEL:
So I think that there's
I don't know if there needs
I mean, if amending
But if it's going to
We don't -You don't think it will?
We don't think so.
We think that the
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evidence we've gotten from the depositions as to their
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participation, some of which is even referenced in your Honor's
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summary judgment opinion, is sufficient to establish
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individual.
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THE COURT:
Yes, no question about that.
Do you think
it's going to need more discovery?
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MR. ADELMAN:
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THE COURT:
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appreciate your candor, then.
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it.
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second summary judgment motion with respect to the individuals,
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right?
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No, I do not.
Okay.
Well, that's -- I mean, I
Then I think I am going to allow
This will, of course, lead to, I'm assuming, an inevitable
MR. MANDEL:
We could talk about that.
I mean, I
guess that entitles him to sort of where we'd go from here.
THE COURT:
Where are we going from here?
Let's put
on our practical shoes.
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MR. MANDEL:
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THE COURT:
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MR. MANDEL:
You know, we'd like to get to trial.
Trial on damages?
On damages.
So, I mean, we'd be prepared
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to try the issue of their individual liability without doing a
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separate summary judgment motion because, I mean, I think
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legally, in terms of the infringement being established, I
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don't think there's going to be any question under the opinion.
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So the only issue is going to be --
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THE COURT:
You'd be moving basically for a directed
verdict after you closed.
MR. MANDEL:
I think the only defense that could
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potentially be available is that somehow they don't have enough
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personal involvement to be individually liable.
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And, frankly,
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I mean, I think we probably are entitled to summary judgment on
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that, but, you know, to move things along, we could try that I
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think, you know, at the same time.
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THE COURT:
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MR. MANDEL:
Is there a dispute on the damages?
I think there's a dispute as to the
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amount, because we're seeking statutory damages and, you know,
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so I guess --
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THE COURT:
Well, you're seeking statutory damages,
and so that is just a number of song titles and the number of
infringing acts, I guess, right?
MR. MANDEL:
Right.
There's the issue of how many,
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you know, works are involved, and then there's the range of
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damages that it's in the Court's discretion to award.
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One of the things I think we've been thinking about --
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and, you know, we're reading in Professor Nimmer's treatise
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that for statutory damages, sometimes these things can be done
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on affidavits, and it doesn't require as much of a full-blown
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procedure.
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paper trial to set the damages is appropriate, because,
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frankly, I don't think the facts are much in dispute.
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we've got --
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I mean, we'd be open to talking about whether a
THE COURT:
That's what it seems to me.
I think
I mean, you'd
want to appeal this thing, obviously.
MR. ADELMAN:
Correct.
However, just to address that
one thing, our clients definitely want to have their say in
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court as to damages.
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saying.
It's not as cut and dry as Mr. Mandel is
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THE COURT:
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MR. ADELMAN:
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I'm not assuming it's cut and dry, but --
the --
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THE COURT:
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MR. ADELMAN:
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There are definitely factors involved in
Bench trial or jury trial?
I would have to discuss that with my
client, but I think they wanted a jury trial.
MR. MANDEL:
But I'll --
I mean, well, it is a bench trial as to
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Redigi, because there's never been a jury demand.
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to the individual defendants who were just coming in, I suppose
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they would have a right to a jury trial, you know.
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know how that would complicate things.
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THE COURT:
That's interesting.
I guess as
So I don't
That might actually
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factor into whether you want to -- since he just indicated he
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thinks probably a jury trial.
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MR. ADELMAN:
I mean, I've never actually had that
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conversation with the clients because, obviously, we just got
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the amended complaint.
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that they were concerned about at the time.
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THE COURT:
It wasn't one of the top level things
I mean, look, I think it's just worth
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thinking about.
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trial, but it's a trial really about damages, unless you amend
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and decide to forego summary judgment.
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I think, you know, it would be an interesting
MR. MANDEL:
I mean, I guess if they're going to seek
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a jury trial on the individuals, we probably would want to move
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for summary judgment on the individual liability.
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assuming the whole thing was going to be a bench trial because
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Redigi hadn't sought a jury trial and --
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THE COURT:
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MR. ADELMAN:
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THE COURT:
So that might be worth chatting about.
Yes.
I think that's a good idea.
Obviously it's your client's call, but I
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think that's worth thinking about.
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then to amend.
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I was
So I am going to allow you
I don't think there's any reason not to.
MR. MANDEL:
Is the procedure then should we file -- I
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think we have to make a couple of corrections to the recording
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list, so can we just do that and then file an amended
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complaint.
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THE COURT:
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When do you want to do it by?
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MR. MANDEL:
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MR. KING:
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The only caveat I make is that you had some
further information for me about --
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We can probably do it by the end of next
week.
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Let's set a date by which you can do that.
MR. ADELMAN:
Why don't you give us a little more
time.
MR. KING:
It was logistically a nightmare, weaving
through which tracks had been uploaded.
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THE COURT:
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MR. KING:
How much time?
If we get that list, what do you need, two
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weeks?
MR. ADELMAN:
In all candor, so my client is actively
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seeking an answer to some of the questions that the plaintiff
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has asked.
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them to give him another week.
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after that.
And he actually e-mailed me last night and asked
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MR. MANDEL:
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THE COURT:
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this, then:
So I think that maybe a week
Could we maybe say the end of August?
End of August is fine.
Why don't we do
You're going to file your amended complaint by the
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end of August.
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which you folks send me a joint letter telling me how you want
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to proceed on jury versus bench, whether there's going to be
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motions for summary judgment.
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think, right?
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And then can I give you a date in September by
Those are really the issues I
Anything else?
MR. MANDEL:
I guess the only other issue would be if
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there is some openness to doing a sort of paper trial instead
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of a full-blown --
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THE COURT:
A bench trial would be -- I think my rules
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for a bench trial are generally more of a paper trial, where I
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don't do directs.
The directs would be on the affidavits.
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MR. MANDEL:
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THE COURT:
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Okay.
Stipulate to all the exhibits you want,
and so that would be much faster.
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MR. MANDEL:
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THE COURT:
And then there's just cross-examination.
Cross-examination for -- if you want it.
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You don't have to do it.
What I generally require is identifying your witnesses
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that you intend to rely on.
Put in your cases in chief.
And
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then the other side looks at that list and says, okay, I'm
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going to want to cross him, him and him.
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case that, you know, there might be 12 witnesses that I'm going
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to hear from on affidavits, but only three crosses, because
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most of the declarations are not really contested.
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would be more efficient.
And often it is the
Not as fun, frankly.
So that
Juries are fun,
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but more work for me, because I have to write.
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at this stage it probably makes more sense that you're seeking
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statutory damages.
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In any event, your call.
But, you know,
Just let me know, then.
If
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I then ask you to get back to me by September 15th, two weeks
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after the complaint --
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THE LAW CLERK:
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THE COURT:
That's a Sunday.
16th.
It's great that she's got amazing
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knowledge of the calendar.
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MR. KING:
And that's for --
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THE COURT:
Christmas, 2016?
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THE LAW CLERK:
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MR. KING:
Friday.
So you want us to propose a procedure for
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how we take care of all this?
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THE COURT:
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Just tell me how you want to do it.
think it will make it easier at that stage.
I
Depending on what
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you tell me, then I'll issue an order that sets a schedule.
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Tell me how long you think the trial will be, and that will
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turn on what kind of a trial.
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dates, though I'll tell you, I have a very jam-packed fall.
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I'd love to get this done before the end of the year.
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hunch is that some of the trials that I've got scheduled will
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go away, but at least for now everybody is insisting that
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they're going.
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and there.
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And you might want to propose
And my
So I only have probably a few open days here
So let me know what dates you would propose.
I'll see
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how that jives with my schedule, then I'll issue an order
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setting a date and setting dates for submissions.
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MR. MANDEL:
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THE COURT:
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That sounds good.
So the 16th for that letter, and
August 31st.
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THE LAW CLERK:
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THE COURT:
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So August 30th, then you'll file the complaint.
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So
right.
Saturday.
It's a Saturday.
She's like Rain Man.
All
So that sounds like a plan.
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Anything else we should talk about today?
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MR. MANDEL:
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THE COURT:
I don't think so.
No?
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to see you.
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it.
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intriguing set of issues.
All right.
Great.
I did certainly enjoy this case.
Well, it is good
I have enjoyed
The lawyering has been very good, and it's certainly an
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Good to see you.
Enjoy the rest of the summer.
Let
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me thank the court reporter, as always.
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copy of the transcript, you can take that up with her now.
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guess we have a little bit of time.
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If anybody needs a
(Adjourned)
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