Columbia Pictures Industries Inc v. Bunnell, No. 2:2006cv01093 - Document 348 (C.D. Cal. 2008)
Court Description: EX PARTE APPLICATION for Leave to FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING filed by Defendants Justin Bunnell, Forrest Parker, Wes Parker, Valence Media, Ltd. (Attachments: # 1 Proposed Order GRANTING DEFENDANTS EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING)(Rothken, Ira)
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Columbia Pictures Industries Inc v. Bunnell 1 2 3 4 5 6 7 8 9 10 11 12 Doc. 348 Ira P. Rothken (SBN #160029) ROTHKEN LAW FIRM LLP 3 Hamilton Landing, Suite 280 Novato, CA 94949 Telephone: (415) 924-4250 Facsimile: (415) 924-2905 Kirk J. Retz (#170208) LAW OFFICES OF KIRK J. RETZ, APC 21535 Hawthorne Blvd., #200 Torrance, CA 90503 Telephone: (310) 540-9800 Facsimile: (310) 540-9881 Attorney for Defendants Justin Bunnell, Forrest Parker, Wes Parker and Valence Media, Ltd. 13 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA 16 17 18 19 20 21 22 23 24 25 26 COLUMBIA PICTURES INDUSTRIES, ) ) INC., et al. ) ) Plaintiffs, ) ) vs. ) ) JUSTIN BUNNELL, et al., ) ) Defendants. ) ) ) Case No. 06-01093 FMC (JCx) DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Date: April 7, 2008 Time: Ex Parte Judge: Florence Marie Cooper Ctrm: 750 27 28 -1DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) Dockets.Justia.com 1 Defendants Justin Bunnell, Forrest Parker, Wes Parker and Valence Media, 2 LLC (hereinafter “defendants”) request leave of court to file a memorandum of 3 points and authorities in connection with the default prove-up hearing now set for 4 May 5, 2008; such memorandum would be in the style of a trial brief. Local Rule 5 55-2 authorizes defendants to file declarations in opposition to a motion for default 6 judgment but is silent as to any memorandum. 7 Defendants submit that a memorandum is appropriate in this case because of 8 the novelty and complexity of the issues, the need for some quantum of due 9 process, the potential presence of First Amendment issues related to information on 10 the Internet, and because of national policies1 that may be affected by the judgment 11 and related Orders. Defendants anticipate that this court’s default judgment may 12 establish an important precedent in the substantive law of secondary (or tertiary) 13 copyright infringement over the Internet, the nature and impact in carving out a 14 default remedy related to prior findings related to e-discovery issues, the tension 15 between International law2 and legal obligations in the US, issues related to 16 extraterritoriality, and defendants submit that such a precedent ought not to be 17 established without careful evaluation of the implications. 18 Defendants also ask for more relaxed scheduling that will allow defendants to 19 meet plaintiffs’ evidence and prepare the most cogent possible memorandum. 20 Plaintiffs’ complaint and the current status of the law in this area show why 21 defendants should be allowed to file a memorandum of points and authorities. The 22 complaint seeks to interpret current law so as to apply to a new kind of technology. 23 Involving older technology, MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919; 24 25 26 27 28 1 National policies: “promote the continued development of the Internet,” “preserve [its] vibrant and competitive free market” and “encourage the development of technologies which maximize user control.” 47 U.S.C. § 230(b). 2 Torrentspy.com’s servers were and are located in the Netherlands and subject to the law of that nation and the European Union. -2DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 125 S. Ct. 2764; 162 L. Ed. 2d 781 (2005) dealt with “one who distributes a device 2 with the object of promoting its use to infringe copyright.” Here, defendants did not 3 distribute a “device” but defendants only distributed non-copyrighted “torrent” files 4 and links, nothing but information that, defendants submit, is protected by the First 5 Amendment to the United States Constitution. 6 One of the lessons assumed from Grokster but rarely scrutinized is that the 7 now famous inducement holding, pled by the plaintiffs in the complaint upon which 8 they are seeking a default, applies to search engines and almost any other type of 9 web service. But a closer reading raises the question whether the inducement 10 liability holding in Grokster even applies to Internet search engines or link sites like 11 Google or Torrentspy or other torrent file search engines. As stated in Grokster: 12 The question is under what circumstances the distributor of a 13 product capable of both lawful and unlawful use is liable 14 for acts of copyright infringement by third parties using the 15 product. We hold that one who distributes a device with the 16 object of promoting its use to infringe copyright, as shown 17 by clear expression or other affirmative steps taken to foster 18 infringement, is liable for the resulting acts of infringement 19 by third parties. 20 Further down in the opinion Justice Souter further clarifies and states: 21 In addition to intent to bring about infringement and 22 distribution of a device suitable for infringing use, the 23 inducement theory of course requires evidence of actual 24 infringement by recipients of the device, the software in 25 this case. 26 If one were to read and "scrutinize" the actual issue and holding of Grokster above 27 it would seem to only apply to "products" or "devices" that can be "used" by third 28 parties to commit copyright infringement. The Grokster software "device" handled -3DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 the allegedly illegal copying between computers - it was "used" for the copyright 2 infringement. 3 But that is arguably not the case with Internet search engines or sites that 4 manifest hyperlinks to dot torrent files like Torrenstpy.com. First it is arguable that 5 a search engine is not a device or product (like say the executable software 6 "product" at issue in Grokster) but even if it is - it is hard to understand how a third 7 party can use such a device for the actual commission of copyright infringement. 8 For example, if one were to query Google for a famous musician's song 9 unauthorized to be on the net and then click on the link to download it from a third 10 party site the Google search engine is not being used to commit copyright 11 infringement as no copying is being done using the Google site or “device” - the 12 copying is being done using the surfer's browser “device” directly connected to a 13 third party site after the connection with Google is lost. In other words search 14 engine result hyperlinks are not a device that can be "used" to commit copyright 15 infringement - that device usually is the user's browser (or like in the Grokster case 16 the thin client software known as Grokster) directly connecting to a third party site 17 or server (the recent case of Perfect 10 v. Google, 487 F.3D 701 (9th Cir. 2007) 18 provides support for this view related to the connection between the user and the 19 third party site after a hyperlink is clicked through). Torrentspy is arguably further 20 removed from potential downstream infringements than Google as Torrentspy 21 provided hyperlinks to dot torrent files (text like files) that when clicked on were 22 downloaded to the user’s hard drive – after the connection with Torrenstpy was lost 23 the user could if they wanted to then load up their software “device” namely the 24 Bittorrent software, load the torrent file, and then possibly download potential 25 infringing files – thus the notion that Grokster does not apply to web sites that 26 provide mere hyperlinks is even more compelling for Torrentspy. Recipients of the 27 Torrentspy search engine or hyperlink device cannot use such device to commit 28 copyright infringement and therefore defendants would argue and request the -4DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 opportunity to argue in a more robust memorandum (after viewing plaintiff’s 2 motion) that Grokster and the inducement theory do not apply to Internet search 3 engines. 4 In addition, given the notion that Torrentspy provided information and it is 5 such information that involves the core of the site and this case, the First 6 Amendment is squarely at issue. Indeed, it is hard to find any cases where a web 7 site did not provide hyperlinks to copyrighted works and did not have copyrighted 8 works passing through its servers or a software device (like in Napster and 9 Grokster) wherein such site was held liable for secondary copyright infringement 10 under any theory – this may be a case of first impression and even in a default 11 scenario should not be decided until the court is satisfied that plaintiffs have a real 12 claim, with defendants this far removed from downstream conduct having real 13 responsibility for potential off site infringements legally recognizable under the 14 law. 15 In a series of decisions, the United States Supreme Court and lower federal 16 courts have protected speech over the Internet because the Internet provides "the 17 most participatory form of mass speech yet developed,"3 a statement that especially 18 applies to BitTorrent technology at issue here. 19 Moreover, the ways that defendants carried out their operations were 20 representative of a large number of similar operations. TorrentSpy’s operating 21 services and functions that may be a focus of the court’s opinion – such as “robots 22 and spiders” that search the Internet for torrent files, system for uploading of torrent 23 24 25 26 27 28 3 ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) at 883, upheld in Reno v. ACLU, 521 U.S. 844, 870, 138 L. Ed. 2d 874, 117 S. Ct. 2329 (1997). See also Ashcroft v. ACLU, 542 U.S. 656, 673, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004) (burden of filtering Internet content for materials harmful to children should be borne by parents rather than by constraining general Internet activity); Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445-449 (2nd Cir. 2001). ("Communication does not lose constitutional protection as 'speech' simply because it is expressed in the language of computer code.") -5DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 files, search engines, home page reports on and links to popular downloads or dot 2 torrent files, categories or directories, forums, moderators – are all widespread over 3 the Internet. Plaintiffs and others, e.g., developers, investors and entrepreneurs, 4 may read the court’s opinion as a judgment on sectors of an industry. Plaintiffs 5 may seek to use the court’s order when making demands on other operators and 6 stating to many that the case was decided on the merits and that Defendants are 7 copyright infringers. Defendants submit that the interests of other operators, the 8 First Amendment, due process, and public policy should be considered in 9 connection with the default judgment hearing. 10 For purposes here, the Court could take supportable factual allegations of the 11 complaint to be true in the default but not “legal conclusions, which [defendants] 12 are not held to have admitted through default.” DirecTV v. Hoa Huynh, 503 F.3d 13 847, 854 (9th Cir. 2007). See also Alan Neuman Productions, Inc. v. Albright, 862 14 F.2d 1388, (9th Cir. 1988) (defendant “is entitled to contest the sufficiency of the 15 complaint and its allegations to support the judgment.”); Interscope Records v. 16 Rodriguez, 2007 U.S. Dist. LEXIS 60903, CIV. NO. 06cv2485-B (NLS) (S.D. Cal. 17 2007) (applies standard of Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 167 L. 18 Ed. 2d 929 (2007) to evaluate strength of copyright infringement allegations, 19 motion for default judgment denied.) 20 According to the complaint, copyrights protecting plaintiffs’ movies and 21 television programs are infringed by activities involving “an online computer 22 network known as ‘BitTorrent.’” (Complaint, ¶¶ 4-6.) Defendants’ former 23 website, TorrentSpy, was part of the BitTorrent Network.4 BitTorrent is a peer-to- 24 peer network optimized for the copying and distribution of large files. Actual file 25 exchanges, which are the directly infringing acts, take place between users or 26 27 28 4 TorrentSpy ceased providing services to persons connecting through U.S. providers in August, 2007. TorrentSpy shut down completely on March 24, 2008. -6DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 “peers,” each a person with a BitTorrent “client application” in his or her personal 2 computer. In addition to the class of users, there is a class of indexing websites 3 known as “torrent sites” and a class of computer servers known as BitTorrent 4 “trackers.” (Id., 7-10.) 5 Defendants were sued solely as a member of the class of “torrent sites” that 6 provides mere hyperlinks to dot torrent files and related services. Plaintiffs’ 7 allegation: “Whether BitTorrent is used for legitimate purposes or copyright 8 infringement is determined by those who operate its websites and its servers,” 9 applies to torrent sites. (Id., ¶ 7.) It is undisputed that BitTorrent is used to 10 distribute large volumes of non-infringing materials, such as independent video 11 productions, or that software, games and updates are routinely distributed by 12 BitTorrent. Hollywood distributes its own products through controlled BitTorrent 13 sites. Defendants operated a “comprehensive aggregator,” gathering material from 14 all available sources, like Google, but specializing as an information node for 15 torrent files and links. There were and are competitors in providing this service to 16 Internet visitors and such aggregators play an essential role in BitTorrent 17 technology. In other words, aggregator torrent sites like the former TorrentSpy 18 provide essential functions in the BitTorrent environment or ecosystem. 19 Torrent sites like the former TorrentSpy provide “small files known as 20 ‘torrents.’” Loaded into the client application under the control of the user and in 21 the user’s personal computer, a torrent “instruct[s] a user’s computer where to go 22 and how to get the desired file. Torrents interact with specific trackers...” (Id., ¶ 23 12.) Any file exchange occurs after termination of all connections between the 24 visitor and the torrent site. 25 “Torrent sites play an integral role in the process of using BitTorrent to 26 download files. Without them, users could not identify, locate or 27 download infringing files. Indeed, the content available on the 28 BitTorrent network is defined entirely by what files the operators of -7DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 torrent sites – such as Defendants – choose to allow to be indexed and 2 distributed.” (Id., ¶ 14, emphasis added.) 3 “The fact is that Defendants easily could prevent infringement of 4 Plaintiffs’ copyrighted works by not indexing torrent files corresponding 5 to Plaintiffs’ copyrighted works.” (Id., ¶ 29.) 6 There is no allegation that defendants themselves engaged in direct copyright 7 infringement. What defendants did was to provide information services and 8 information to visitors who used such information to find partners for file 9 exchanges, infringing or not. As shown by plaintiffs’ allegations, there is a class of 10 persons, “operators of torrent sites,” who may be affected by a judgment issued by 11 the court. For example, if the court were to find as a matter of fact that an operator 12 of a torrent site “could easily prevent infringement of Plaintiffs’ copyrighted 13 works,”5 such a finding could have serious consequences for other torrent site 14 operators – especially because the proposition is not factually correct. (See A & M 15 Records, Inc. v. Napster, Inc., 2001 U.S. Dist. LEXIS 2186, No. C MDL-00-1369 16 MHP, 2001 WL 227083 (N.D. Cal. Mar. 5, 2001) (Patel, C.J.), aff'd, 284 F.3d 1091 17 (9th Cir. 2002) for some of the difficulties to be anticipated in “filtering” files.) 18 In a default hearing, damages must be actually proved. TeleVideo Sys. Inc. v. 19 Heidenthal, 826 F.2d. 915, 917 (9th Cir. 1994). Defendants are unable at this time 20 to understand how plaintiffs can prove damages or how any statutory damages can 21 22 23 24 25 26 27 28 5 It is hard to imagine how a site, like Torrentspy, that does not have copyrighted works on its servers or going through them and no software device like in Napster and Grokster can know in advance of hyperlinking to torrent files which torrent files lead to unauthorized infringing works in a given jurisdiction and which ones don’t other than via the cooperation of the copyright holders who assist in a filtering process. Also, such an assertion is inconsistent with the expert testimony of plaintiff’s expert Professor Horowitz who indicated in summary that some off site infringement must be pragmatically tolerated using a keyword filtering system. Defendants would like the opportunity to bring to the Court’s attention in a memorandum plaintiffs’ own evidence provided in discovery that casts doubt on the allegations made in the complaint at issue in the default as Plaintiffs should not be allowed to assert facts in a complaint even in a default unsupported by their own evidence or expert witnesses. -8DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 pass due process muster.6 After thorough discovery of the issue, defendants via 2 discovery do not know of any actual infringing downloads made by third parties by 3 means of a torrent file acquired from or link listed at Torrentspy that infringed upon 4 the copyrights identified in Exhibit A to the complaint. Traditionally, an actual 5 download by an unauthorized person is required for proof of secondary liability. 6 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 n.2 (9th Cir. 2001); 7 Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 706 (2d Cir. 1998) 8 (failure to identify any direct infringer other than plaintiffs’ counsel). It 9 appears that plaintiffs may be seeking to impose some kind of liability based on a 10 novel theory of “availability of torrent files” that should receive careful scrutiny 11 and certainly should be rejected.7 12 Plaintiffs are seeking to adapt legal principles established for older kinds of 13 technology into principles appropriate to a new kind of technology. Adaptations 14 that plaintiffs seek may not be legally proper or may lead to a course of 15 development that is not in the public interest. In the parallel case of Columbia 16 Pictures Industries, Inc. v. Gary Fung et. al. (CV-06-05578 SVW (JCx)), with a 17 closely similar Complaint, Plaintiffs’ Motion for Summary Judgment as to Liability 18 is pending. On April 3, 2008, Judge Wilson issued a Minute Order (a copy of 19 which is attached hereto) asking for supplemental briefing that includes 20 “a further description of the separate components involved in the bit- 21 torrent downloading process used by Defendants' website. From the 22 moving papers and the oral arguments, it is unclear which of the 23 24 25 26 27 28 6 The notion of default should not be elevated to be a “free for all” by the plaintiff to obtain more than a fair remedy and a potential punishment by default – such an approach would violate public policy and due process. 7 Indeed, it is anticipated that plaintiffs will attempt to use evidence gathered while Torrentspy.com was made unavailable to US users and thus, unless someone tricked the Torrenstpy system to get access, such activity was extraterritorial in nature. -9DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 components involved are distributed or provided by Defendants. 2 Supplemental briefing should also include a brief explanation of the 3 interaction between these components and Defendant Fung's website, as 4 well any connection with the copying of actual files and the services 5 Defendants provide.” 6 Judge Wilson also noted that there was a: 7 “dispute whether there is a ‘product’ at use in this case, and whether 8 Defendants place any product into commerce for purposes of 9 contributory infringement. The parties should discuss whether the 10 programs and components involved in this case fall within such a 11 definition.” 12 Defendants submit that before the court extends prior law into a new area of 13 technology, the court should critically examine plaintiffs’ claim. Based on the 14 allegations of the complaint, and anticipating the nature of plaintiffs’ proposed 15 amendments, defendants expect to ask the court to deny the default judgment on the 16 single claim alleged (as in Hoa Huynh, surpa). This is not a “device” or “product” 17 case like Grokster; hence, the Grokster inducement theory does not apply here. 18 More generally, defendants did not place any copying device or product into 19 commerce and the information defendants did put into commerce is speech 20 protected by the First Amendment. In Perfect 10, Inc. v. Amazon.com, Inc., 508 21 F.3d 1146, 1173 (9th Cir. 2007), the court held that a theory of vicarious liability 22 could not be sustained against Google because Google did not have “the legal right 23 to stop or limit the direct infringement of third-party websites,” exactly the situation 24 here. 25 On May 10, 2006, this Court denied defendants’ Motion to Dismiss. In its 26 Order Denying the Motion 10:4-5, the Court responded to defendants’ concern 27 “that some of the allegations in Plaintiffs’ Complaint are conclusory.” The court 28 found that -10DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 “those conclusions can reasonably be drawn from the facts because the 2 knowing facilitation of direct infringement can reasonably be inferred 3 from the way Defendants’ website is alleged to be organized and 4 operated. [Citation.] Plaintiffs need not present evidence that would 5 persuade a fact finder that this is the correct inference to be drawn at this 6 early stage in the litigation; rather, in order to prevail in a Motion to 7 Dismiss, Defendants would need to demonstrate that Plaintiffs can prove 8 no set of facts in support of the claims that would entitle them to relief. 9 Defendants have not done so here.” (Id., at 10:5-13.) 10 Defendants submit that the examination undertaken during the Motion to 11 Dismiss does not satisfy the more detailed scrutiny needed during the default 12 judgment hearing. We are at the final stage of the litigation, not at an “early stage.” 13 Defendants further note that the legal standard for sufficiency of the claim has been 14 changed and that the "no set of facts" language of Conley v. Gibson, 355 U.S. 41, 15 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) has been put into “retirement.” Bell Atlantic v. 16 Twombly, 127 S.Ct. 1955, 1969, 167 L. Ed. 2d 929 (2007). 17 Defendants further submit that important judicial decisions have been filed 18 since the Court’s ruling in March of 2006, especially Perfect 10, Inc. v. 19 Amazon.com, Inc., 508 F.3d 1146, supra. 20 The foregoing issues are illustrative of the considerations that should be before 21 the Court before rendering the default judgment both in terms of determining 22 whether a legally recognizable claim exists and whether damages, statutory or 23 otherwise can be provided. 24 On April 4, 2008, defendants gave notice to plaintiffs of defendants’ intention 25 to file this application. In response, plaintiffs’ counsel asked defendants to advise 26 the Court that plaintiffs oppose the application and that plaintiffs will file a brief in 27 opposition. 28 For the foregoing reasons, defendants respectfully request that the Court allow -11DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) 1 defendants to file a memorandum of points and authorities in connection with the 2 default hearing now set for May 5, 2008. Defendants further respectfully request 3 that the Court re-schedule the hearing and set a briefing schedule. Such relaxation 4 of deadlines will give defendants sufficient time to respond to plaintiffs’ evidence 5 and memorandum so as to be able to provide the best possible briefing to the Court. 6 7 8 Dated: April 7, 2008 Respectfully submitted, ROTHKEN LAW FIRM 9 10 11 Ira P. Rothken, Esq., Attorney for Defendants 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO FILE A MEMORANDUM IN CONNECTION WITH DEFAULT HEARING Columbia Pictures et. al. v. Bunnell et. al. U. S. Dist. Ct., Cent. Dist. Cal., No. CV 06-1903 FMC (JCx) EXHIBIT A Case 2:06-cv-05578-SVW-JC Document 342 Filed 04/03/2008 Page 1 of 1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 06-5578 SVW (JCx) Title COLUMBIA PICTURES INDUSTRIES, INC., et al., Plaintiffs, v. GARY FUNG, et al., Defendants Present: The Honorable Date April 3, 2008 STEPHEN V. WILSON, U.S. DISTRICT JUDGE Paul M. Cruz N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: N/A N/A Proceedings: IN CHAMBERS ORDER re PLAINTIFFS' MOTION FOR SUMMARY JUDGEMENT ON LIABILITY [265] The Court currently has under consideration Plaintiffs' Motion for Summary Judgment on Liability. Before the Court issues its order, it would benefit from supplemental briefing regarding certain issues presented in the moving papers and at oral arguments. Specifically, the Court would benefit from a further description of the separate components involved in the bit-torrent downloading process used by Defendants' website. From the moving papers and the oral arguments, it is unclear which of the components involved are distributed or provided by Defendants. Supplemental briefing should also include a brief explanation of the interaction between these components and Defendant Fung's website, as well any connection with the copying of actual files and the services Defendants provide. Additionally, it appears from oral arguments that the parties dispute whether there is a "product" at use in this case, and whether Defendants place any product into commerce for purposes of contributory infringement. The parties should discuss whether the programs and components involved in this case fall within such a definition. The Court provides the following briefing schedule for the parties along with page limitations: Plaintiffs' Supplemental Brief of no longer than twelve (12) pages to be filed by April 18, 2008. Defendants' Opposition Supplemental Brief of no longer than twelve (12) pages to be filed by April 25, 2008. Plaintiffs' Reply Supplemental Brief of no longer than four (4) pages to be filed by April 29, 2008. : Initials of Preparer CV-90 (06/04) CIVIL MINUTES - GENERAL PMC Page 1 of 1
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