Capitol Records, LLC v. Redigi Inc.

Filing 302

DECLARATION LARRY RUDOLPH (AKA LAWRENCE S. ROGEL) IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. (This document was previously filed under seal in envelope #85 and unsealed on 12/20/2016.)(mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------x
CAPITOL RECORDS,LLC,
Civil Action No: 12 CIV 0095

Plaintiff,

(RJS)

- against -

REDIGI,INC.

,

::T:.1i1.

__.___x

DECLARATION LARRY RUDOLPH (aka Lawrence s. Roger)
ION TO
I, LARRY RUDOLPH (aka Lawrence S. Rogel), pursuanr to 28 U.S.C
. þ t746,declare
under the penalty of perjury, as follorr,,s:

1-

I am chief rechnicar officer and a founder of ReDigi Inc ("ReDigi,.).

2'

This declaration is submitted

in suppon of

to

capitol

of the statements from ReDigí,s previous

papers,

ReDigi's opposition

Records LLC's ("Capitol") motion for summary judgment.

3'

Capitol has taken many

including the statement in paragraph 6 of my declaration dated January
27, z¡l2,out of context
and tried claim that they should be admitted as judicial admissions
of infringement againsr

ReDigi. But capitol's interpretation of these statements is wrong.

4'

In my January 27,2012 declaration the phrase "such file" in paragraph
6, and the

simílar statement in paragraph 47 of ReDigi's Answer, refers to the archival
copy that could have

previously been created

for

recovery purposes.

it

does nol refbr

to the Eligible

File.

Additionally, the term "delete" was meant to focus on the fact that there
are no copies of the

Eligible File left on the user's machine after upload,
not rhar the Eligible File itself is deleted
because it is not. The Eligible File is migrated.

5'

The sentence capitol has pulled out cannot
be read independently of the rest of

the paragraph -the sentences must be read
together. The following sentence in paragraph
6

of

tny January 27,2012 declaration, which capitol
omitted from their motion, makes the meaning
clear' As I said "[i]f the user were to attempt to upload
the fire without first accepting the prompt
to delete the other copy or copies defected by
Music Manager, the upload would be blocked.,,
(Emphasis Added') see 1/27/12 Rudolph

Decl.-'fl6. This clearly

refers to the archival copy and

any previously existing copies that existed on
the user's hard drive. As pre'ionsly described
in

my July 20' 2012 declaration there are many instances
in which a pre-existing copy of

an

Eligible File would exist on a user's hard drive prior
to ReDigi's installation. see 7/20/l2Rogel
Decl. fl30.

6'

ReDigi's system is highly technical and complicated
and in opposi'g the motion
for a preliminary injunction. ReDigi sought to explain
to the court in the best way possible how
its system worked' However without a protective
order in place, ReDigi was also concerned
about going into detail as to the details and workings
of its technology, as it is highly sensitive,
proprietæy information.
7

'

In executing many different user commands, computers
move the location of files

all the time' For exa:nple, computers move the
location of electronic files when they go through
defì'agmenting processes or when a person rnoves
their music files from one directory to another
because they want

to use a new media player. Many editors often
make backup copies of files

(even editing the MP3 tags. such as changing
the ratings or titre of the track may cause
it to be

copied)' Installing a new music player on a machine (which
changes the default music player)
and double clicking on a music

8'

file may make a copy of the file.

ReDigi's system does not have a process of human review
of Eligible Files prior

to upload' ReDigi's

employees have no direct oversight over which
files are uploaded to

ReDigi's marketplace by users' ReDigi also has no control
over which songs content owners sell
through iTunes or for that matter which Eligible Files
users will choose to upload.

9'

To the extent that the patent uses the word "copied,,, this
was not meant to

describe the transfèr

technique. ReDigi's patent sought protection f'or its business
process not

over the specific method of uploading files to the

cloud. Moreover aî the time the patent

was

fìled, prior to ReDigi's launch, the data migration program
was not finished.

WHEREFoRE, for the foregoing reasons ReDigi respectfully
requests that this court
deny Capitol's motion.

I declare u'der penalty ofperjury that the foregoing is true
and correct.
Executed on August 14,2012 in Cambridge Massachusetts

LARRY RUDOLPH laka LawrenìãS.

RÇ"¡