UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al, No. 2:2007cv05744 - Document 425 (C.D. Cal. 2009)
Court Description: EX PARTE APPLICATION to Supplement the Record in Support of its Motion for Summary Judgment to Incorporate UMG's Recent Withdrawal of Alleged Infringements re MOTION for Summary Judgment as to Re Entitlement to Section 512(c) Safe Harbor MOTION for Summary Judgment as to Re Entitlement to Section 512(c) Safe Harbor MOTION for Summary Judgment as to Re Entitlement to Section 512(c) Safe Harbor MOTION for Summary Judgment as to Re Entitlement to Section 512(c) Safe Harbor 336 filed by Defendant Veoh Networks, Inc.. (Attachments: # 1 Declaration of Ranahan, # 2 Proposed Order Granting Ex Parte Application)(Ranahan, Erin)
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UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al Doc. 425 RE: DOCKET NO. 336 1 2 3 4 5 6 7 8 9 13 14 Attorneys for Defendant VEOH NETWORKS, INC. 11 333 S. Grand Avenue Los Angeles, CA 90071-1543 Jennifer A. Golinveaux (SBN 203056) Email: jgolinveaux@winston.com WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111 Tel: (415) 591-1506/Fax: (415) 591-1400 Michael S. Elkin (pro hac vice) Email: melkin@winston.com Thomas P. Lane (pro hac vice) Email: tlane@winston.com WINSTON & STRAWN LLP 200 Park Avenue New York, New York 10166 Tel: (212) 294-6700/Fax: (212) 294-4700 10 Winston & Strawn LLP Rebecca Lawlor Calkins (SBN: 195593) Email: rcalkins@winston.com Erin R. Ranahan (SBN: 235286) Email: eranahan@winston.com WINSTON & STRAWN LLP 333 South Grand Avenue, 38th Floor Los Angeles, CA 90071-1543 Telephone: (213) 615-1700 Facsimile: (213) 615-1750 12 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 UMG RECORDINGS, INC., et al., 18 Plaintiffs, 19 v. 20 21 22 23 24 25 VEOH NETWORKS, INC, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07 5744 – AHM (AJWx) VEOH NETWORKS, INC.’S EX PARTE APPLICATION FOR PERMISSION TO SUPPLEMENT THE RECORD IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT TO INCORPORATE UMG’S RECENT WITHDRAWAL OF ALLEGED INFRINGEMENTS CONCURRENTLY FILED HEREWITH: (1) DECLARATION OF ERIN R. RANAHAN IN SUPPORT OF EX PARTE APPLICATION; AND (2) [PROPOSED] ORDER 26 27 Discovery Cutoff: April 13, 2009 Pretrial Conference: August 3, 2009 Trial Date: August 18, 2009 28 VEOH’S EX PARTE APPLICATION FOR PERMISSION TO SUPPLEMENT THE RECORD ISO ITS MOTION FOR SUMMARY JUDGMENT – Case No. CV 07 5744 AHM (AJWx) Dockets.Justia.com 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that pursuant to Local Rule 7-19, Defendant Veoh 3 Networks, Inc. (“Veoh”) hereby applies to this Court ex parte, for an order granting 4 permission for Veoh to supplement the record in support of its Motion for Summary 5 Judgment Re Entitlement to Section 512(c) Safe Harbor (Docket No. 336) (“Motion”) 6 with UMG’s recently amended Exhibit A to UMG’s Response to Veoh’s Interrogatory 7 No. 25, in which UMG withdraws forty alleged infringements from this action. 8 Declaration of Erin R. Ranahan (“Ranahan Decl.”) ¶ 2 and Exhibit A (attaching 9 UMG’s April 22, 2009 correspondence and amended Exhibit A to UMG’s Response 10 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 to Veoh’s Interrogatory No. 25 (“UMG’s Withdrawal of Alleged Infringements”)). This ex parte application is brought on the grounds that more than four months 12 after UMG identified its list of alleged infringements, two days ago, on April 22, 13 2009, UMG withdrew its claim with respect to forty of the alleged infringements. Id. 14 This amounts to a reduction in potential statutory damages of up to $6,000,000. 15 Notably, after waiting more than a year to identify any alleged infringements in this 16 action, it took UMG (who would be expected to have devoted considerable resources 17 to properly locating and identifying its alleged infringements) more than four months 18 to figure out that it had misidentified numerous works. This information is directly 19 relevant to Veoh's Motion because, in addition to eliminating forty of the alleged 20 infringements at issue in Veoh’s Motion, UMG’s own difficulties in identifying 21 alleged infringements of its works only highlights that Veoh lacked the ability to make 22 such determinations without cooperation or notification from UMG. 23 Ex parte relief is necessary because this information is directly relevant to 24 Veoh's Motion, and UMG’s own error in wrongly identifying certain videos as 25 infringing caused this problem. Veoh only received this information two days ago 26 and would be prejudiced if it is not permitted to supplement the record before the 27 Court rules on its Motion. On April 23, 2009, Veoh’s counsel asked Plaintiffs’ 28 counsel whether it would oppose this application. On April 24, 2009, Plaintiffs’ 1 VEOH’S EX PARTE APPLICATION FOR PERMISSION TO SUPPLEMENT THE RECORD ISO ITS MOTION FOR SUMMARY JUDGMENT – Case No. CV 07 5744 AHM (AJWx) 1 2 3 4 5 6 7 8 9 10 counsel indicated that it would oppose this application. The names, addresses, and telephone numbers of UMG’s counsel are as follows: Steven A. Marenberg Elliot Brown Brian Ledahl Benjamin Glatstein IRELL & MANELLA LLP 1800 Avenue of the Stars, Ste. 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Email: smarenberg@irell.com Email: ebrown@irell.com Email: bledahl@irell.com Email: bglatstein@irell.com 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 12 13 Dated: April 24, 2009 WINSTON & STRAWN LLP 14 15 16 17 18 By /s/ Erin R. Ranahan Michael S. Elkin Thomas P. Lane Jennifer A. Golinveaux Rebecca L. Calkins Erin R. Ranahan Attorneys for Defendant VEOH NETWORKS, INC 19 20 21 22 23 24 25 26 27 28 2 VEOH’S EX PARTE APPLICATION FOR PERMISSION TO SUPPLEMENT THE RECORD ISO ITS MOTION FOR SUMMARY JUDGMENT – Case No. CV 07 5744 AHM (AJWx) 1 I. Veoh seeks permission to supplement the record in support of its Motion for 333 S. Grand Avenue Los Angeles, CA 90071-1543 2 Winston & Strawn LLP INTRODUCTION 3 Summary Judgment Re Entitlement to Section 512(c) Safe Harbor (Docket No. 336) 4 (“Motion”), to include a supplemental interrogatory response received two days ago, 5 in which UMG withdraws forty of the alleged infringements in this action (“UMG’s 6 Withdrawal of Alleged Infringements”). 7 After the parties have completed briefing Veoh’s Motion, UMG has now 8 withdrawn forty alleged infringements that it had previously identified, and identified 9 numerous additional errors concerning copyright registration numbers. This 10 information is highly relevant to Veoh's Motion because, in addition to eliminating 11 forty of the alleged infringements at issue in Veoh’s Motion, UMG’s own difficulties 12 identifying alleged infringements of its works highlights that Veoh lacked the ability 13 to make such determinations without cooperation or notification from UMG. UMG’s supplemental interrogatory response presents additional support for 14 15 granting Veoh’s Motion, and Veoh respectfully requests that the Court grant Veoh’s 16 ex parte application to consider UMG’s Withdrawal of Alleged Infringements. 17 II. UMG’S WITHDRAWAL OF FORTY VIDEOS FROM ITS LIST OF 18 ALLEGED INFRINGEMENTS IS DIRECTLY RELEVANT TO VEOH’S 19 PENDING MOTION FOR SUMMARY JUDGMENT 20 Though UMG filed this action in September 2007, it did not specifically 21 identify any allegedly infringing videos in its Complaint. Not until December 1, 2008 22 (after Veoh was forced to engage in motion practice) did UMG finally identify alleged 23 infringements in response to Veoh's Interrogatory No. 25. UMG supplemented its list 24 of infringements on January 16, 2009.1 25 1 26 27 28 As addressed in the Motion briefing, UMG identified the alleged infringements in two separate batches. The first batch of 1,591 allegedly infringing videos was identified on December 1, 2008. The second batch of 854 was identified on January 16, 2009, and Plaintiffs have conceded involved videos for which the RIAA sent Veoh DMCA notices (SGI 66), and to which Veoh promptly responded and removed the videos. (Veoh’s Reply to Statement of Genuine Issues (Docket No. 415) No. 66; Supplemental Declaration of Stacie Simons (Docket No. 396-2) ¶¶ 4-13 (noting that 1 VEOH’S EX PARTE APPLICATION FOR PERMISSION TO SUPPLEMENT THE RECORD ISO ITS MOTION FOR SUMMARY JUDGMENT – Case No. CV 07 5744 AHM (AJWx) 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 1 Just two days ago, on April 22, 2009, UMG notified Veoh that its list of alleged 2 infringements contained numerous errors and that UMG was withdrawing at least 3 forty videos which it had previously claimed were infringing. See Ranahan Decl. ¶ 2, 4 Ex. A. This is a significant change amounting to up to a $6,000,000 reduction in 5 potential statutory damages.2 6 In addition to eliminating forty of the alleged infringements at issue in this case, 7 the recent withdrawal is also highly relevant to Veoh’s pending Motion because UMG 8 argues as one of the centerpieces of its opposition, that despite its never having sent 9 Veoh a single DMCA notice, Veoh should have had “awareness of apparent 10 infringements” because the allegedly infringing videos contained “red flags” that 11 provided Veoh knowledge of the alleged infringements. See UMG’s Opposition to 12 Veoh’s Motion for Summary Judgment Re Section 512(c) Safe Harbor (Docket No. 13 380) at pp. 2:9-13, 7:23-8:5, 10:6-11:9. UMG’s inability to itself accurately identify 14 infringements of its own works—even in the context of providing verified 15 interrogatory responses in the midst of high stakes litigation—only highlights that 16 there were no such “red flags,” and moreover, that Veoh lacked the ability to make 17 such determinations without UMG’s assistance. UMG’s suggestion that Veoh should 18 be on notice of UMG’s alleged infringements just by viewing certain videos is absurd 19 considering the admitted errors UMG has experienced in identifying alleged 20 infringements on Veoh. If UMG and its entire team of lawyers, who have been 21 22 23 24 25 26 27 28 for each of the works identified in the RIAA notices that UMG submitted with its opposition, such works were removed within 24 hours.) 2 Tellingly, UMG’s recent disclosure of numerous errors in its identification of alleged infringements follows UMG being ordered by Magistrate Judge Wistrich to produce chain of title documents for twenty percent of its allegedly infringed works (chosen by Veoh), which came to 241 works. (Docket No. 321). Magistrate Judge Wistrich explained that he would require UMG to produce the information with respect to the twenty percent and if sufficient defects were found in this sample twenty percent, the parties should meet and confer regarding whether production of the remaining eighty percent was warranted and if the parties could not agree, the Court would consider the matter on expedited means. Id. Following Magistrate Judge Wistrich’s Order, UMG has now withdrawn its claims with respect to 24 (or ten percent) of those sample works. Veoh is now addressing with Plaintiffs the need for ownership information with respect to the other eighty percent. 2 VEOH’S EX PARTE APPLICATION FOR PERMISSION TO SUPPLEMENT THE RECORD ISO ITS MOTION FOR SUMMARY JUDGMENT – Case No. CV 07 5744 AHM (AJWx) 1 litigating UMG’s claims in this action for nearly two years, are unable to properly 2 identify UMG’s alleged infringements, Veoh’s employees cannot reasonably be 3 expected to do so. UMG’s attempt to force Veoh to shoulder the entire burden of 4 policing and accurately identifying infringements, with no assistance or cooperation 5 from UMG, is unreasonable and unworkable. 6 III. Ex parte relief is appropriate here because Veoh is without fault in creating this 333 S. Grand Avenue Los Angeles, CA 90071-1543 7 Winston & Strawn LLP EX PARTE RELIEF IS NECESSARY 8 problem and Veoh would be prejudiced if such matters were heard on regular notice. 9 First, there is no question that UMG delayed four months, and after the Motion papers 10 were submitted, before notifying Veoh that it made significant errors in identifying its 11 alleged infringements at issue in this case. Second, Veoh may be irreparably 12 prejudiced if the Court rules on its Motion without allowing Veoh the opportunity to 13 supplement the record with UMG’s newly revised list of alleged infringements. For 14 the good cause set forth above, Veoh respectfully requests that the Court grant Veoh’s 15 ex parte relief, and consider UMG’s Withdrawal of Alleged Infringements as part of 16 the record on Veoh’s Motion. 17 IV. 18 CONCLUSION For all the foregoing reasons, Veoh respectfully requests that Court grant 19 Veoh’s ex parte application and consider UMG’s Withdrawal of Alleged 20 Infringements as part of the record on Veoh’s Motion. 21 22 Dated: April 24, 2009 WINSTON & STRAWN LLP 23 24 25 26 27 28 By /s/ Erin R. Ranahan Michael S. Elkin Thomas P. Lane Jennifer A. Golinveaux Rebecca L. Calkins Erin R. Ranahan Attorneys for Defendant VEOH NETWORKS, INC. 3 VEOH’S EX PARTE APPLICATION FOR PERMISSION TO SUPPLEMENT THE RECORD ISO ITS MOTION FOR SUMMARY JUDGMENT – Case No. CV 07 5744 AHM (AJWx)
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