UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al, No. 2:2007cv05744 - Document 509 (C.D. Cal. 2009)

Court Description: NOTICE OF MOTION AND MOTION IN LIMINE to Preclude (1) Allegedly infringing videos that are not UMG's music videos; (2) Copies of screenshots that omit certain items that would appear for a Veoh user; (3) Any documents or argument specifying any of Veoh's investors or documents constituting or relating to communications to and from Veoh's investors regarding allegedly infringing videos; (4) Any evidence regarding the timing of Veoh's implementation of filtering through Audible Magic; (5) Evidence constituting and relating to press articles, blogs and communications from Veoh's users (other than relating to the users' own alleged infringement) regarding alleged infringement on Veoh; (6) Evidence and arguments that support a claim that statutory damages should be assessed by any other means other than per Compact Disc ("CD"); and (7) Evidence constituting Veoh's power point presentations and other internal materials that discuss or refer to general music strategy filed by Defendant Veoh Networks, Inc.. Motion set for hearing on 8/3/2009 at 10:00 AM before Judge A. Howard Matz. (Attachments: # 1 Proposed Order PROPOSED ORDER GRANTING VEOH'S MOTIONS IN LIMINE NOS. 1 through 7)(Ranahan, Erin)

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UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al 1 2 3 4 5 6 7 8 9 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 13 14 Attorneys for Defendant VEOH NETWORKS, INC. 11 333 S. Grand Avenue Los Angeles, CA 90071-1543 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 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 Doc. 509 12 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 WESTERN DIVISION 18 UMG RECORDINGS, INC., et al., 19 Plaintiffs, 20 21 22 23 vs. VEOH NETWORKS, INC. et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07 5744 – AHM (AJWx) VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7; MEMORANDUM OF POINTS AND AUTHORITIES Hearing Date: 8/3/09 Time: 10:00 a.m. Hon. A. Howard Matz 24 25 26 27 28 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) Dockets.Justia.com 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on August 3, 2009, or as soon thereafter as this 3 matter can be heard before the Honorable A. Howard Matz of the United States 4 District Court for the Central District of California, at 312 North Spring Street, Room 5 170, Los Angeles, California, 90012, Veoh Networks, Inc. (“Veoh”) will and hereby 6 does move for an order restricting the parties, all counsel and witnesses from 7 mentioning, directly or indirectly, before jurors and prospective jurors, certain 8 evidence and matters articulated below. These items should not be permitted for any 9 purpose because even assuming there were some limited relevance, the probative 10 values of the evidence is outweighed by potential prejudice to the jury, waste of time, 11 and/or unnecessary confusion of the issues. Fed. R. Evid. 401-403. 1 Due to these and 12 the other evidentiary infirmities described herein, the Court should grant Veoh’s 13 Motions in Limine Nos. 1-7 (“Motion”).2 14 The seven matters that are subject to this Motion are as follows: 15 (1) Allegedly infringing videos that are not UMG’s music videos; 16 (2) Copies of screenshots that omit certain items that would appear for a 17 Veoh user; (3) 18 Any documents or argument specifying any of Veoh’s investors or 19 documents constituting or relating to communications to and from Veoh’s investors 20 regarding allegedly infringing videos; (4) 21 22 Any evidence regarding the timing of Veoh’s implementation of filtering through Audible Magic; (5) 23 Evidence constituting and relating to press articles, blogs and 24 communications from Veoh’s users (other than relating to the users’ own alleged 25 infringement) regarding alleged infringement on Veoh; 26 1 27 28 All further statutory references are to the Federal Rules of Evidence unless otherwise noted. 2 For the convenience of the Court, in the interest of efficiency and to avoid unnecessary duplication, Veoh consolidates these seven separate motions herein. 1 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 2 3 4 5 (6) Evidence and arguments that support a claim that statutory damages should be assessed by any other means other than per Compact Disc (“CD”); and (7) Evidence constituting Veoh’s power point presentations and other internal materials that discuss or refer to general music strategy. This Motion is based on this Motion and Notice of Motions, the Declaration of 6 Erin R. Ranahan ("Ranahan Decl."), the exhibits attached thereto, the supporting 7 documents filed concurrently herewith, previously filed documents incorporated by 8 reference herein, and upon such oral argument and submissions that may be presented 9 at or before the hearing on this Motion. Pursuant to Local Rule 7-3, this Motion is 10 made following the conference of counsel that took place on June 16, 2009. 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 12 Dated: July 6, 2009 WINSTON & STRAWN LLP 13 14 15 16 17 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. 18 19 20 21 22 23 24 25 26 27 28 2 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) TABLE OF CONTENTS 1 2 Page 3 I. INTRODUCTION .............................................................................................. 1 4 II. ARGUMENT ...................................................................................................... 1 5 A. Where Evidence Is More Prejudicial than Probative, or a Waste of Time, The Court May Exclude Such Evidence ......................................... 1 B. The Court Should Grant Veoh’s Motions In Limine To Exclude The Following Evidence From Trial.......................................................... 2 6 7 8 1. UMG Should Be Precluded From Including Allegedly Infringing Videos That Are Not UMG’s Music Videos.................. 3 2. UMG Should Be Precluded From Introducing Copies of Screenshots that Omit Certain Items that Would Appear to a Veoh User ........................................................................................ 4 3. UMG Should Be Precluded From Introducing Any Documents or Argument Specifying Any of Veoh’s Investors........................................................................................... 5 4. UMG Should Be Precluded From Introducing Any Evidence Regarding the Timing of Veoh’s Implementation of Filtering Through Audible Magic................................................................... 6 5. Evidence Constituting and Relating to Press Articles, Blogs and Communications From Veoh’s Users (Other Than With Respect to the User’s Own Alleged Infringement) Regarding Alleged Infringement on Veoh ........................................................ 9 6. Evidence and Arguments that Support a Claim that Statutory Damages Should be Assessed by Any Means Other Than Per Compact Disc (“CD”) ............................................................. 12 7. Evidence Constituting Veoh’s Power Point Presentations and Other Internal Materials that Discuss or Refer to Music........ 16 9 10 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 12 13 14 15 16 17 18 19 20 21 22 III. CONCLUSION ................................................................................................. 16 23 24 25 26 27 28 i VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 TABLE OF AUTHORITIES 2 3 CASES 4 Campbell Indus. v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980) ...................................................................................... 1 5 6 7 8 9 10 333 S. Grand Avenue Los Angeles, CA 90071-1543 11 Winston & Strawn LLP Page(s) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Country Road Music. Inc. v. MP3.com, Inc., No. 02 Civ. 8006 (JSR), 2003 WL 22038295 (S.D.N.Y. Aug. 27, 2003) (Rakoff, J.) ............................ 15, 16 Dream Games of Arizona, Inc. v. PC Onsite, 561 F.3d 983 (9th Cir. 2009) .................................................................................... 2 E.E.O.C. v. GLC Rests., Inc., No., CV05-618 PCT-DGC, 2007 WL 30269 (D. Ariz. Jan. 4, 2007)...................... 2 Eastern Am. Trio Prods., Inc. v. Tang Elec. Corp., 97 F. Supp. 2d 395 (S.D.+N.Y. 2000).................................................................... 14 Fish v. Georgia-Pacific Corp., 779 F.2d 836 (2nd Cir. 1985) ................................................................................... 9 Gametech Int’l Inc. v. Trend Gaming Sys., LLC., Nos., 05-15626, 05-16026, 05-16542, 2007 WL 1454934 (9th Cir. May 16, 2007)............................................................. 1 Gray v. Hoffman-La Roche, Inc., 82 Fed. Appx. 639 (10th Cir. 2003) ......................................................................... 9 Heyman v. Salle, 743 F. Supp. 190 (S.D.N.Y. 1989) ......................................................................... 14 Latin Am. Music Co. v. Spanish Broad. Sys., Inc., 866 F. Supp. 780 (S.D.N.Y. 1994) ......................................................................... 13 Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87 (2nd Cir. 1980) ..................................................................................... 9 Mills v. Beech Aircraft Corp., 886 F.2d 758 (5th Cir. 1989) .................................................................................... 9 27 28 ii VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 2 3 4 5 Stoke Seeds Ltd. v. Ceo. W. Park Seed Co., Inc., 783 F. Supp. 104 (W.D.N.Y. 1991)........................................................................ 15 TeeVee Toons v. MP3.com, Inc., 134 F. Supp. 2d 546 (S.D.N.Y. 2001) (Rakoff, J.)................................................. 15 Twin Peaks Prods., Inc. v. Publ. Int’l, Ltd., 996 F.2d 1366 (2d Cir. 1993) ................................................................................. 13 6 7 8 9 10 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 12 13 14 15 U.S. v. Ellis, 147 F.3d 1131 (9th Cir. 1998) .................................................................................. 2 UMG Recordings, Inc., et al. v. MP3.com, Inc., 109 F. Supp. 2d 223 (S.D.N.Y. 2000) .................................................. 12, 13, 14, 15 United States v. W.R. Grace, 504 F.3d 745 (9th Cir. 2008) .................................................................................... 2 Wicker v. Oregon ex rel. Bureau of Labor, 543 F.3d 1168 (9th Cir. 2008) .................................................................................. 1 Xoom, Inc. v. Imageline, Inc., 94 F. Supp. 2d 688 (E.D. Va. 1999) ...................................................................... 15 16 17 STATUTES 18 17 U.S.C. § 101............................................................................................................ 14 19 17 U.S.C. § 504(c)(1)....................................................................................... 12, 13, 14 20 21 22 OTHER AUTHORITIES 23 Fed. R. Civ. P. 37(c)(1).................................................................................................. 9 24 Fed. R. Evid. 401 ........................................................................................................... 1 25 Fed. R. Evid. 402 .................................................................................................. passim 26 Fed. R. Evid. 403 .................................................................................................. passim 27 28 Fed. R. Evid. 407 ........................................................................................................... 8 iii VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 2 Fed. R. Evid. 602 ............................................................................................... 9, 10, 11 Fed. R. Evid. 901 ............................................................................................... 9, 10, 11 3 4 5 6 7 8 9 10 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) MEMORANDUM OF POINTS AND AUTHORITIES 1 2 I. Pursuant to Federal Rules of Evidence 401-403, 602 and/or 901, Defendant 333 S. Grand Avenue Los Angeles, CA 90071-1543 3 Winston & Strawn LLP INTRODUCTION 4 Veoh Networks, Inc. (“Veoh”) moves for an in limine order precluding Plaintiffs 5 (“UMG”) from introducing at trial any testimony or evidence regarding the seven 6 matters set forth herein.3 Though the underlying issues in this case are 7 straightforward, there is a series of potential distractions that could sidetrack the jury. 8 These seven potential areas of distraction constitute evidence that not only provide 9 little, if any, probative value, but the introduction of this evidence would waste the 10 Court’s and the jury’s time, make issues appear to be more confusing than they are, 11 and could prejudice the jury. Fed. R. Evid. 403. For these and all the foregoing 12 reasons, Veoh respectfully requests that the Court grant Veoh’s Motions in limine. 13 II. ARGUMENT A. 14 Where Evidence Is More Prejudicial than Probative, or a Waste of Time, The Court May Exclude Such Evidence 15 Rulings on motions in limine are committed to the discretion of the trial court. 16 17 Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980) (district court has 18 “broad discretion to make . . . evidentiary rulings conducive to a fair and orderly 19 trial”); Gametech Int’l Inc. v. Trend Gaming Sys., LLC., Nos., 05-15626, 05-16026, 20 05-16542, 2007 WL 1454934 (9th Cir. May 16, 2007). District courts can exercise 21 their discretion to exclude evidence where the evidence is not relevant, or where the 22 probative value is outweighed by other considerations. Fed. R. Evid. 401-403; 23 Wicker v. Oregon ex rel. Bureau of Labor, 543 F.3d 1168, 1177-78 (9th Cir. 2008) 24 (district court did not abuse discretion in excluding conclusive, speculative evidence). 25 Even if evidence is considered relevant, “evidence may be excluded when its 26 probative value is substantially outweighed by the danger of unfair prejudice, 27 3 28 All further statutory references are to the Federal Rules of Evidence unless otherwise noted. 1 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 1 confusion of the issues, or misleading the jury.” Fed. R. Evid. 403; U.S. v. Ellis, 147 2 F.3d 1131, 1135 (9th Cir. 1998) (evidence should be excluded if probative value is 3 outweighed by unfair prejudice); United States v. W.R. Grace, 504 F.3d 745, 760 (9th 4 Cir. 2008) (affirming district court's exclusion of evidence that was low in probative 5 value and could have confused the jury as more prejudicial than probative under Rule 6 403); E.E.O.C. v. GLC Rests., Inc., No., CV05-618 PCT-DGC, 2007 WL 30269, at *1 7 (D. Ariz. Jan. 4, 2007); Dream Games of Arizona, Inc. v. PC Onsite, 561 F.3d 983, 8 993 (9th Cir. 2009) (holding district court did not abuse its discretion in granting 9 plaintiff’s motion in limine to exclude evidence based on concerns that it might 10 improperly influence the jury on the amount of statutory damages to assess under 11 504(c)(1) of the Copyright Act of 1976, because the evidence did not provide 12 sufficiently probative information.) 13 Evidence has probative value only if it has any tendency to make the existence 14 of any legally necessary proposition in the case more or less likely. Fed. R. Evid. 15 401-402. Evidence is unfairly prejudicial if it has an “undue tendency to suggest 16 decision on an improper basis.” Advisory Comm. Notes, 1972 Proposed Rules; Fed. 17 R. Evid. 403. Rule 403 explicitly states that evidence may also be excluded if the 18 waste of time caused by its introduction outweighs its probative value. 19 20 21 B. The Court Should Grant Veoh’s Motions In Limine To Exclude The Following Evidence From Trial As discussed herein, the probative value of the evidence at issue in this Motion 22 is substantially outweighed by the danger of unfair prejudice, misleading the jury, or 23 confusing the jury. The probative value is also outweighed by the tremendous waste 24 of time that would be incurred by the parties, the Court and the jury if the evidence 25 were allowed. Due to the low probative value and the serious risk of prejudicing the 26 jury, and/or to avoid a needless waste of time, for each of the matters set forth below, 27 the Court should exclude the evidence. 28 2 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1. 1 Videos That Are Not UMG’s Music Videos 2 Throughout this litigation, UMG has suggested that its entire list of what now 3 4 amounts to over 7,000 allegedly infringing videos constitute actual music videos, 5 recognizable as UMG’s copyrighted content. Though UMG never notified Veoh of a 6 single alleged infringement into well over a year into this case, UMG suggests that 7 Veoh should have somehow proactively recognized these alleged infringements as 8 UMG’s content. See UMG's Opp. to Veoh's Renewed Mot. for Summary Judgment 9 Re Entitlement to Section 512(c) Safe Harbor (Dkt. No. 465) ("UMG's Opp to MSJ") 10 p. 1:6-16, 23; pp. 8:7- 9:26; pp. 11:15-12:7; p. 14:26- p. 15:16; pp. 17:15-17. Remarkably, it turns out that thousands upon thousands of the alleged 333 S. Grand Avenue Los Angeles, CA 90071-1543 11 Winston & Strawn LLP UMG Should Be Precluded From Including Allegedly Infringing 12 infringing videos are not music videos at all, let alone identifiable UMG music videos. 13 For example, many of the videos are home videos set to music or are videos of people 14 filming themselves playing video games set to music. And, in fact, approximately a 15 full third of the videos are Anime (Japanese cartoons) set to music. As a result, none 16 of these large categories of the videos put in issue by UMG would be reasonably 17 identifiable as UMG music videos, much less actually be UMG music videos. 18 (Ranahan Decl. ¶ 2). UMG’s entire premise that Veoh was somehow capable of identifying works 19 20 without cooperation from UMG cannot possibly apply to these videos. Because UMG 21 did not notify Veoh of any of these videos until over a year into the case,4 the 22 inclusion of these videos does not serve to make any fact of consequence more or less 23 likely. Accordingly, these videos fail to meet the relevance test, and should be 24 excluded under Rules 401-402. 25 26 4 27 28 The only notices received by Veoh regarding any of the alleged infringements asserted by UMG, were sent by an industry group the Recording Industry Association of America ("RIAA"), and it is undisputed that Veoh promptly responded to the RIAA notices and took down the identified videos. 3 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 2 snippets of UMG’s music may have been included at some point in the videos, Veoh 3 has a viable fair use defense with respect to many of these videos. Litigating these 4 fair use defense(s) would require decisions on a per video basis. This exercise would 5 take a considerable amount of time and require significant resources of both the Court 6 and the jury. Requiring the Court, the jury and the parties to devote resources to 7 individual fair use analysis with respect to so many individual videos (when given 8 UMG’s lack of notice, such videos have little if any bearing on this case) militates in 9 favor of excluding the evidence to avoid a colossal waste of time under Rule 403. 333 S. Grand Avenue Los Angeles, CA 90071-1543 10 Winston & Strawn LLP Further, even if these non-music videos have some probative value because Finally, if UMG is entitled to continually refer to the alleged infringements in 11 this case as exceeding 7,000 videos, this will mislead the jury into believing there are 12 a greatly exaggerated number of “music videos” at issue and that Veoh could have 13 somehow managed to proactively identify such videos. 14 Because the probative value of these thousands of non-music videos offer 15 virtually nothing to advance UMG’s arguments in this case, and there is a serious risk 16 that introduction of this evidence will waste time and prejudice the jury, this Court 17 should preclude UMG from alleging or introducing as examples of alleged 18 infringement any videos other than actual UMG music videos. Further, the Court 19 should order UMG to produce a revised list of alleged infringements to comport with 20 any Court order granting Motion No. 1, so that Veoh has the opportunity to rebut any 21 excerpted list against its own findings. 22 2. UMG Should Be Precluded From Introducing Copies of Screenshots 23 that Omit Certain Items that Would Appear to a Veoh User 24 During depositions, UMG has introduced screenshots as exhibits that do not 25 appear as they would to a Veoh user. For example, during the deposition of Joseph 26 Papa in July 2008, UMG introduced screenshots as Exhibits 3 and 4. (Ranahan Decl. 27 ¶ 3 and Exhs. 1 and 2) These screenshots did not appear as they would to a Veoh 28 user because they failed to identify the permalink of the video, which would normally 4 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 have appeared at the top of the page, in the URL of the web page. There is no 2 probative value to introducing incomplete screenshots that a Veoh user would not 3 have actually viewed, especially when UMG could simply adjust its evidence 4 appropriately. Presenting screenshots in an inaccurate manner by omitting identifying 5 information has the potential to mislead the jury into making it seem more difficult 6 than it actually is for users to identify and notify Veoh of suspected infringing works. 7 Fed. R. Evid. 403. Accordingly, the Court should preclude UMG from introducing 8 any screenshots that do not appear as they would to a Veoh user because the evidence 9 is irrelevant under Rules 402-402, and more prejudicial than probative under Rule 10 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 12 13 403. 3. UMG Should Be Precluded From Introducing Any Documents or Argument Specifying Any of Veoh’s Investors As this Court well knows, UMG has repeatedly attempted to drag Veoh’s 14 various investors into this case, and has failed. (See UMG's First Amended 15 Complaint (Dkt. No. 104); UMG's Second Amended Complaint (Dkt. No. 308); 16 Order Granting Investor Defendants' Motion to Dismiss with Prejudice, Dkt. No. 434.) 17 It should not now be allowed to mention or refer to Veoh’s investors, many of which 18 are well known companies and individuals. Indeed, specifying the names of Veoh’s 19 investors should not be admissible in evidence for any purpose because the identity of 20 Veoh’s investors has no bearing on the issues or the rights of the parties in this case. 21 Fed. R. Evid. 401 and 402. The investor defendants have been dismissed with 22 prejudice from this action. (See Order Granting Investor Defendants' Motion to 23 Dismiss with Prejudice, Dkt. No. 434.) It is therefore not relevant which investors 24 have invested in Veoh. 25 Nevertheless, as UMG has done throughout this action, it can be expected to 26 attempt to exploit the identity of Veoh’s investors to sway the jury into believing that 27 Veoh must have more resources than it actually does, and thus must be a “deep 28 pocket” that could withstand a massive infringement award. This prejudice could 5 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 1 cause a juror to decide differently, to award damages higher than he or she ordinarily 2 would, or spend less time deliberating if the juror believes Veoh to have considerable 3 resources. UMG has also repeatedly used the stature of Veoh’s investors when 4 seeking to distract from the fact that when compared to UMG, Veoh is a considerably 5 smaller company with far less resources. Thus, the Court should restrict any reference 6 to Veoh’s investors because it would be unnecessary and inflammatory. The potential 7 prejudice to the jury outweighs any probative value. Fed. R. Evid. 403. 8 Similarly, UMG should be precluded from introducing documents constituting 9 communications with the investor defendants. In its opposition to Veoh’s motion for 10 summary judgment and in its complaint, UMG has cited to a few instances where 11 Veoh’s investors were notified of suspected infringement on Veoh. (See e.g., Veoh's 12 Response to UMG's Statement of Genuine Issues (Dkt. No. 473) ("RSGI") ¶¶ 126, 13 141 and 147). These communications have nothing to do with any of the alleged 14 infringements at issue in this case, and in fact have nothing to do with music videos at 15 all. Id. The knowledge of the investors—who have been dismissed as parties from 16 this case with prejudice—of a few sporadic suspected instances of infringement, none 17 of which are UMG alleged infringements, are entirely irrelevant and have no bearing 18 on the issues or the rights of the parties in this case. Fed. R. Evid. 401 and 402. 19 Additionally, and importantly, when these communications are shown in their 20 full context, they demonstrate Veoh’s commitment to its DMCA and copyright 21 policies. See, e.g., RSGI (Dkt. No. 473) ¶ 141. The risk of confusion and misleading 22 the jury given the manner that UMG has chosen to misleadingly excerpt such 23 documents in the past, demonstrate a need to preclude the introduction of this 24 evidence. Fed. R. Evid. 403. UMG's efforts to mislead the jury with this evidence 25 should be rejected. 26 4. UMG Should Be Precluded From Introducing Any Evidence 27 Regarding the Timing of Veoh’s Implementation of Filtering 28 Through Audible Magic 6 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) Veoh strictly enforces its policies prohibiting infringing content.5 In 1 2 accordance with its DMCA policy, Veoh has always promptly terminated access to 3 allegedly infringing content when it receives notice of such content.6 Veoh has also 4 implemented additional technological safeguards to prevent infringing material. For 5 example, beginning in 2006, Veoh has identified duplicate file submissions by means 6 of a unique fingerprint (called a “hash”) of a video file.7 Veoh has also introduced a state of the art filtering system, Audible Magic. 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 7 8 Audible Magic’s service works by taking an audio fingerprint from videos files and 9 matching it against Audible Magic’s database of content. Id. In the summer of 2007, 10 months before this lawsuit was filed, Veoh began working with Audible Magic and 11 testing its filtering technology. (Golinveaux Decl. (Dkt. No. 338) ¶ 4 & Ex. C, 81; 12 Papa Decl. (Dkt. No. 336-10) ¶ 15.) After a period of testing, Veoh put Audible 13 Magic’s filtering system into production in October 2007. Id. Beginning at that time, 14 if a user attempted to upload a video that matched against Audible Magic’s database 15 5 16 17 18 19 20 21 22 23 24 25 26 27 28 Veoh has been adjudicated to be both eligible for and entitled to Section 512(c) safe harbor. Earlier in this case, this Court denied UMG’s motion for partial summary judgment seeking a ruling that Veoh was ineligible for Section 512(c) safe harbor. (12/29/08 Order Denying UMG's Mot. for Partial Summary Judgment, Dkt. No. 293) Last year, a court granted Veoh’s motion for summary judgment regarding its entitlement to Section 512(c) safe harbor in a copyright infringement suit, holding that the record demonstrated that “far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its website and works diligently to keep unauthorized works off its website.” Io Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132, 1155 (N.D. Cal. Aug. 27, 2008). 6 In addition to its DMCA policy, Veoh has been at the forefront of collaborative interindustry efforts alongside content owners to prevent infringing materials from appearing on its service. In October 2007, Veoh, along with major content owners Disney, Viacom, Fox, CBS, and NBC Universal, signed on to “The UGC Principles,” available at www.ugcprinciples.com. Papa Decl. (Dkt. No. 336-10) ¶ 12 & Ex. F. The UGC Principles serve as a comprehensive set of guidelines to help services like Veoh and content creators work together toward their collective goal of “foster[ing] an online environment that promotes the promises and benefits of UGC Services and protects the rights of Copyright Owners.” Id. 7 Once Veoh disables access to a video for any reason, including alleged copyright infringement, Veoh’s system automatically disables access to any other duplicate videos with the identical hash, and also blocks any subsequently submitted videos that are duplicates of disabled videos. See Papa Decl. (Dkt. No. 336-10) ¶ 13; Golinveaux Decl. (Dkt No. 338) Ex. C, 132. 7 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 of copyrighted content, the video was cancelled before publication so that it was never 2 available for viewing on Veoh. (Golinveaux Decl. (Dkt. No. 338) ¶ 4 & Ex. C, 83; 3 Papa Decl. (Dkt. No. 336-10) ¶ 15.) This filtering occurs even if Veoh has never 4 received a DMCA notice regarding the video. By mid-2008, Veoh had also run its 5 entire existing database of videos against Audible Magic’s filter and disabled access to 6 any video that matched against Audible Magic’s database that were not submitted by 7 Veoh partners. Golinveaux Decl. (Dkt. No. 338) ¶ 4 & Ex. C, 159; Papa Decl. (Dkt. 8 No. 336-10) ¶ 15. Veoh has invested significant resources licensing and continuing to 9 employ Audible Magic’s services. Id. UMG has argued that Veoh should have implemented Audible Magic when it 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 10 11 first launched its service, based on the speculative conclusions of UMG’s expert, Ellis 12 Horowitz. Horowitz (who opined in his report that Veoh could have introduced 13 Audible Magic filtering when it launched), admitted in a deposition on July 3, 2009, 14 that he was not aware of any company that had implemented Audible Magic at an 15 earlier time. (Ranahan Decl. ¶ 4 and Exh. 3 (Rough Transcript of Horowitz at 120:23- 16 121).) Horowitz also testified that he had no experience in implementing a content 17 filtering system like Audible Magic, but acknowledged that there would be a fair bit 18 of mathematics and a fair bit of software that would have to be developed in order to 19 do so.8 Id. (Rough Transcript of Horowitz at 122:1-14.) Allowing the introduction of 20 this speculative evidence from Horowitz and UMG’s counsel, without any 21 consideration for what is involved in implementing Audible Magic, creates a real risk 22 that the jury will be confused and mislead about the feasibility of Veoh introducing 23 filtering at an earlier time. Thus, UMG should be precluded from presenting evidence 24 regarding the timing of Veoh’s implementation of Audible Magic; any probative value 25 26 27 28 8 Horowitz instead based his suggestion that Veoh could have introduced Audible Magic at an earlier phase based on testimony from the deposition of Audible Magic, which indicated that Audible Magic had certain technology available at an earlier date, but did not address whether it would have been feasible to have implementation of Audible Magic complete. 8 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 is greatly outweighed by considerations of misleading the jury and wasting time. Fed. 2 R. Evid. 403. 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 3 Moreover, this Court should exercise its discretion to exclude this evidence for 4 public policy reasons. Courts applying Rule 407 have routinely held that it is 5 reversible error to allow the introduction of a subsequent remedial measure that 6 unfairly prejudices the opposing party. See, e.g., Lindsay v. Ortho Pharmaceutical 7 Corp., 637 F.2d 87, 94 (2nd Cir. 1980); Gray v. Hoffman-La Roche, Inc., 82 Fed. 8 Appx. 639, 647 (10th Cir. 2003); Mills v. Beech Aircraft Corp., 886 F.2d 758, 763 9 (5th Cir. 1989); Fish v. Georgia-Pacific Corp., 779 F.2d 836, 840 (2nd Cir. 1985). 10 Similar to the policy reasons for excluding subsequent remedial measures to implicate 11 liability, permitting UMG to introduce evidence about Veoh’s implementation of 12 Audible Magic to be used against Veoh could create a disincentive to companies who 13 are considering whether to expand the means by which to prevent suspected 14 infringement. If taking additional preventative steps to combat suspected copyright 15 infringement subjects the company that implements added measures to stricter 16 scrutiny about whether the implementation could have occurred earlier, companies 17 may think twice about implementing such measures in the first place. 18 5. Evidence Constituting and Relating to Press Articles, Blogs and 19 Communications From Veoh’s Users (Other Than With Respect to 20 the User’s Own Alleged Infringement) Regarding Alleged 21 Infringement on Veoh 22 At various times, including throughout the complaint in this matter, UMG has 23 cited to uncorroborated third party statements about alleged infringement on Veoh 24 that have nothing to do with the alleged infringements in this case. Not only is this 25 evidence irrelevant and more prejudicial than probative, it also suffers from other 26 evidentiary infirmities including that UMG will be unable to authenticate these 27 documents under Rule 901 or properly lay a foundation pursuant to Rule 602. None 28 of the authors of these articles or communications have been disclosed as witnesses in 9 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 this action in accordance with Rule 26 or in interrogatory responses, and Veoh has 2 not had the opportunity to depose these witnesses or pursue alternate forms of 3 discovery. See, e.g., Fed. R. Civ. P. 37(c)(1). Without such witnesses, UMG cannot 4 authenticate or lay a proper foundation for these documents. 5 Suspected Alleged Infringements By Other Veoh Users 7 Should Be Excluded 9 333 S. Grand Avenue Los Angeles, CA 90071-1543 Correspondence Between Veoh and its Users Regarding 6 8 Winston & Strawn LLP a. In opposition to Veoh’s pending motion for summary judgment, UMG cited to four exhibits that constitute correspondence between Veoh and its users, after the 10 users had videos taken down for suspected infringement pursuant to Veoh’s policies. 11 These users cite vaguely and generally to other infringing works because they were 12 angry that their own videos were removed in accordance with Veoh’s policies. UMG 13 cites these exhibits as examples of “notice” of infringement and to show that Veoh 14 users “regularly wrote to Veoh to report” on a “huge range of infringing content.” 15 (See UMG's Statement of Genuine Issues, Dkt. No. 468 ("SGI") 142-145, and Batsell 16 Decl. (Dkt. No. 388) and Exs. 45-48). 17 First, these and similar communications are not relevant to the alleged 18 infringements in this action. This alone is reason enough to exclude this evidence as 19 not relevant pursuant to Rule 402. Further, under FRE 901, UMG has not (and 20 cannot) authenticate or lay any foundation regarding any of the users’ vague and 21 unsubstantiated assertions of other alleged infringements. Because there can be no 22 foundation with respect to the knowledge of these users and the extent to which they 23 have reviewed Veoh’s site for infringement (or would even know which videos might 24 be potentially infringing), any such evidence should be precluded. Further, as this 25 evidence purports to describe the conduct of Veoh, it also constitutes inadmissible 26 hearsay in violation of FRE 602, which is yet another reason to disallow this 27 evidence. Finally, any limited relevance would be outweighed by the prejudice 28 10 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 caused when considering that UMG has not established the credibility of such 2 statements. Thus, the Court should preclude these and similar communications. b. 3 Veoh Should Be Excluded 4 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 5 Press Articles or Blogs Regarding Alleged Infringement on Similarly, without authenticating pursuant to Rule 901 or laying any foundation 6 whatsoever to the statements pursuant to Rule 602, UMG’s opposition to Veoh’s 7 pending motion for summary judgment (and its second amended complaint) also 8 improperly relied heavily on statements in various news articles and third party 9 websites—SGI 17, Batsell Decl. (Docket No. 388) Ex. 5 (Revver’s Copyright 10 Information); SGI 110, Batsell Decl. (Docket No. 388) Ex. 36 (MySpace and 11 Gracenote Press release); SGI 112, Batsell Decl. (Docket No. 388) Ex. 38 (AM Pres 12 Release); SGI 146, Batsell Decl. (Docket No. 388) Ex. 49 (New York Times Article); 13 SGI 149, Batsell Decl. (Docket No. 388) Ex. 51 (article titles “Forget YouTube . . 14 .”); SGI 149, (Valleywag’s article); SGI 150, Batsell Decl. (Docket No. 388) Ex. 53 15 (article titled “Veoh v. Copyright Holders…”). None of these articles discuss any 16 specific alleged infringements at issue in this action, and offer little, if any, probative 17 value. Accordingly, this evidence should be precluded as not relevant under Rules 18 401-402. 19 Not only is this evidence irrelevant, such articles also suffer from other 20 evidentiary infirmities because UMG will be unable to authenticate these documents 21 under Rule 901 or properly lay a foundation pursuant to Rule 602. None of these 22 articles were or could be properly introduced (as none of the authors have been 23 disclosed or deposed in this action), and therefore these exhibits should not be 24 allowed into evidence pursuant to Rule 901. These exhibits also constitute 25 inadmissible hearsay in violation of Rule 602. As this evidence has not and cannot be 26 properly introduced, allowing the evidence would unnecessarily prejudice the jury 27 into believing the veracity of these unsubstantiated press statements. Rule 403. 28 Accordingly, the Court should also preclude from introduction these and similar 11 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 articles or blogs regarding suspected infringement on Veoh as more prejudicial than 2 probative under Rule 403. 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 3 6. Evidence and Arguments that Support a Claim that Statutory 4 Damages Should be Assessed by Any Means Other Than Per 5 Compact Disc (“CD”) 6 UMG alleges that Veoh infringed hundreds of its alleged sound recording 7 copyrights, and seeks statutory damages under 17 U.S.C. § 504(c)(1). UMG has 8 indicated its intention to argue that statutory damages should be assessed per 9 individual “song,” rather than per individual “CD,” thereby dramatically increasing its 10 potential statutory damages award. It does so despite knowing that courts have 11 repeatedly calculated statutory damages per “CD.” See UMG Recordings, Inc., et al. 12 v. MP3.com, Inc., 109 F. Supp. 2d 223, 225 (S.D.N.Y. 2000) (finding statutory 13 damages should be assessed per CD and not per “song;” UMG was a plaintiff in the 14 action); TeeVee Toons v. MP3.com, Inc., 134 F. Supp. 2d 546, 548 (S.D.N.Y. 2001); 15 Country Road Music. Inc. v. MP3.com, Inc., No. 02 Civ. 8006 (JSR), 2003 WL 16 22038295, at *5 (S.D.N.Y. Aug. 27, 2003). 17 The Copyright Act expressly states that the trier of fact must calculate statutory 18 damages according to the number of “works” infringed. It further specifies that 19 compilations must be treated as single works for the purpose of calculating statutory 20 damages. As UMG admits, and as the UMG Recordings court found, CDs are 21 compilations of sound recordings. This is in accordance with the manner in which 22 UMG registered such works with the Copyright Office. Therefore, the relevant 23 “work” for the purpose of calculating statutory damages is the “CD.” Thus, this Court 24 should exclude evidence and arguments that statutory damages should be assessed by 25 any means other than per the relevant compilation, or “CD.” 26 a. UMG Is Bound By Its Election of Statutory Damages 27 28 12 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) Under the Copyright Act, a copyright holder may elect to forego actual 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 1 2 damages in favor of statutory damages. See 17 V.S.c. § 504(a)-(c). Specifically, 3 Section 504(c)(l) states that: 4 [T]he copyright owner may elect, at any time before final judgment is rendered, 5 to recover, instead of actual damages and profits, an award of statutory damages 6 for all infringements involved in the action, with respect to any one work, for 7 which any one infringer is liable individually, or for which any two or more 8 infringers are liable jointly and severally, in a sum of not less than $750 or more 9 than $30,000 as the court considers just. For the purposes of this subsection, all 10 the parts of a compilation or derivative work constitute one work. 11 17 U.S.C. § 504(c)(1).9 12 A plaintiff may elect statutory damages at any time before final judgment is 13 rendered, but once a plaintiff elects statutory damages, it may no longer seek actual 14 damages. See Twin Peaks Prods., Inc. v. Publ. Int’l, Ltd., 996 F.2d 1366, 1380 (2d 15 Cir. 1993); Latin Am. Music Co. v. Spanish Broad. Sys., Inc., 866 F. Supp. 780, 782 16 (S.D.N.Y. 1994). UMG has repeatedly informed the Court and Veoh that it is electing 17 statutory damages. (See e.g., 11/26/08 Order, note 1 (Dkt. No. 217) (noting that 18 "UMG is seeking only statutory damages").) Thus, UMG is now precluded from 19 seeking actual damages in this case. See Twin Peaks, 996 F.2d at 1380; Latin Am 20 Music, 866 F. Supp. at 782. b. 21 Any Statutory Damages Should Be Calculated Per Compilation or CD 22 Further, UMG has informed Veoh that it intends to argue that statutory damages 23 24 should be assessed on a per “song” basis. Such an assessment would directly violate 25 the Copyright Act, would be contrary to Congressional intent, and “would be nothing 26 less than an unconstitutional arrogation of power by the judiciary.” UMG Recordings, 27 109 F. Supp. 2d at 225. 28 9 This section allows a maximum recovery of $150,000 per work. Id. 13 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 1 The Copyright Act clearly states that statutory damages are to be calculated 2 according to the number of works infringed. Specifically, the statute provides that the 3 copyright owner may elect “an award of statutory damages for all infringements 4 involved in the action, with respect to any one work....” 17 U.S.C. § 504(c)(1) 5 (emphasis added). The Copyright Act also states that for the purpose of calculating 6 damages, “all the parts of a compilation or derivative work constitute one work....” Id. 7 As stated in the applicable House Report, section 504(c)(l) “makes it clear ... that, 8 although they are regarded as independent works for other purposes, ‘all the parts of a 9 compilation or derivative work constitute one work,’“ for the purposes of determining 10 an award of statutory damages. See H.R. Rep. No. 1476, at 162(1976), reprinted in 11 1976 U.S.C.C.A.N. 5659, 5778. 12 The Act defines a “compilation” as, “a work formed by the collection and 13 assembling of preexisting materials or of data that are selected, coordinated, or 14 arranged in such a way that the resulting work as a whole constitutes an original work 15 of authorship.” 17 U.S.C. § 101. The statute further states that the: 16 “term ‘compilation’ includes collective works,” which the statute defines as 17 “work[s], such as ... periodical[s], antholog[ies] or encyclopedia[s], in which a 18 number of contributions, constituting separate and independent works in 19 themselves, are assembled into a collective whole.” 20 Id. See also Heyman v. Salle, 743 F. Supp. 190, 192 (S.D.N.Y. 1989) (stating that 21 those compilations that “consist of contributions which themselves constitute ‘works’ 22 capable of copyright are called ‘collective works’“). As a CD is a work that 23 assembles into a collective whole separate and independent sound recordings, each 24 capable of obtaining their own copyright, a CD is a collective work, and thus a type of 25 compilation. UMG has acknowledged by virtue of registering its works on a per CD 26 basis as "works for hire" that the CDs it registers under its sound recording copyrights 27 28 14 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 are compilations. 17 U.S.C. sec 101.10 Moreover, in a previous litigation, UMG 2 conceded that the CDs it registers under sound recording copyrights are compilations 3 under section 504(c)(1) See UMG Recordings, 109 F. Supp. 2d at 225 ("Plaintiffs 4 concede that each CD that [the] defendant copied is a 'compilation' under § 5 504(c)(1)"). Thus, because a CD is a compilation of sound recordings, and compilations 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 6 7 must be treated as single works for the purpose of calculating statutory damages, any 8 statutory damages awarded in this case may only be awarded on a per-CD basis. See 9 17 U.S.C. § 504(c)(1). See generally, Eastern Am. Trio Prods., Inc. v. Tang Elec. 10 Corp., 97 F. Supp. 2d 395, 420 (S.D.N.Y. 2000) (finding two sales catalogs 11 containing additional individual photos were compilations and therefore plaintiff is 12 only eligible for two awards of statutory damages for copyright infringement); Xoom, 13 Inc. v. Imageline, Inc., 94 F. Supp. 2d 688, 693 (E.D. Va. 1999), aff’d, 323 F.3d 279 14 (4th Cir.), cert. denied, 540 U.S. 879 (2003) (finding two computer programs 15 containing individual clip-art images were compilations and therefore plaintiff is only 16 eligible for two awards of statutory damages for copyright infringement); Stoke Seeds 17 Ltd. v. Ceo. W. Park Seed Co., Inc., 783 F. Supp. 104, 107 08 (W.D.N.Y. 1991) 18 (finding all photos appearing in one book constitute compilation and therefore 19 plaintiff is only eligible for one award of statutory damages for copyright 20 infringement). In accordance with the foregoing principles, courts have repeatedly found that a 21 22 CD is a compilation of sound recordings, and therefore that the CD was the work by 23 which to assess statutory damages. See UMG Recordings, 109 F. Supp. 2d at 225; 24 TeeVee Toons v. MP3.com, Inc., 134 F. Supp. 2d 546, 548 (S.D.N.Y. 2001) (Rakoff, 25 J.); Country Road Music. Inc. v. MP3.com, Inc., No. 02 Civ. 8006 (JSR), 2003 WL 26 22038295, at *5 (S.D.N.Y. Aug. 27, 2003). It certainly should come as no surprise to 27 10 28 Indeed, the works at issue in this case were registered as "works for hire;" and the only possible work for hire category enumerated in 17 U.S.C. sec 101 that would apply to the sound recordings are compilations. 15 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 UMG, as it was a plaintiff in the UMG Recordings case. In that case, Judge Rakoff 2 explicitly told Plaintiffs that statutory damages should be assessed per CD and that to 3 find otherwise would be to disregard Congress’ “express mandate that all parts of a 4 compilations must be treated as a single ‘work’ for purposes of computing statutory 5 damages.” Id. Thus, because a CD is a compilation of sound recordings, and compilations 6 7 must be treated as single works for the purpose of calculating statutory damages, any 8 statutory damages awarded in this case may only be awarded on a per-CD basis. Any 9 evidence or argument to the contrary is irrelevant and impermissible as a matter of 10 law, and should be excluded. 7. 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 Evidence Constituting Veoh’s Power Point Presentations and Other Internal Materials that Discuss or Refer to Music 12 UMG has repeatedly suggested that Veoh should somehow be found culpable 13 14 for specific alleged infringements at issue in this action because on a few, isolated 15 occasions, internal Veoh documents discuss general strategies regarding music content 16 on Veoh. (RSGI (Docket No. 473) ¶¶ 177-178). UMG makes this argument knowing 17 full well that Veoh has authorized music content on Veoh. (Id. at ¶ 135). Further, this 18 evidence is wholly irrelevant to the issues in this case given that none of this evidence 19 makes reference to UMG or any of UMG’s alleged infringements, and does not 20 discuss any effort to feature or allow any allegedly infringing content. Based on the 21 limited probative value of these documents (especially considering that Veoh has 22 authorized music content on Veoh) these power points and other documents relating to 23 Veoh’s plans with respect to music, which were never even implemented, are far more 24 prejudicial than probative, and should be excluded under Rule 403. 25 III. 26 27 CONCLUSION For all the foregoing reasons, Veoh respectfully requests that the Court grant its Motions in Limine Nos. 1-7. 28 16 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx) 1 Dated: July 6, 2009 WINSTON & STRAWN LLP 2 3 4 5 6 7 8 9 10 333 S. Grand Avenue Los Angeles, CA 90071-1543 Winston & Strawn LLP 11 12 13 14 15 16 17 By /s/ Erin R. Ranahan Rebecca Lawlor Calkins Erin R. Ranahan 333 S. Grand Avenue Los Angeles, California 90071-1543 (213) 615-1700 (Telephone) (213) 615-1750 (Facsimile) Jennifer A. Golinveaux 101 California Street San Francisco, California 94111-5894 (415) 591-1000 (Telephone) (415) 591-1400 (Facsimile) Michael S. Elkin (pro hac vice) Thomas P. Lane (pro hac vice) 200 Park Avenue New York, New York 10166-4193 (212) 294-6700 (Telephone) (212) 294-4700 (Facsimile) Attorneys for Defendant 18 19 20 21 22 23 24 25 26 27 28 17 VEOH’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-7 Case No. CV 07 5744-AHM (AJWx)

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