Eight Mile Style, LLC et al v. Apple Computer, Incorporated, No. 2:2007cv13164 - Document 143 (E.D. Mich. 2009)

Court Description: MOTION in Limine No. 2 by Aftermath Records, Apple Computer, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Abrams Transcript Excerpts, # 3 Exhibit 2 - Statement (Filed Under Seal), # 4 Exhibit 3 - Abrams Report, # 5 Exhibit 4 - Report (Filed Under Seal), # 6 Exhibit 5 - Amended Final Judgment, # 7 Exhibit 6 - Levinsohn Transcript Excerpts, # 8 Exhibit 7 - Plaintiffs Expert Disclosures) (Lemoine, Melinda)

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Eight Mile Style, LLC et al v. Apple Computer, Incorporated Doc. 143 Att. 2 Eight Mile Style, LLC et al. v. Apple Computer Inc., et al. Case No. 2:07-CV-13164 EXHIBIT 1 Excerpt of transcript pages from the Deposition of Howard Abrams taken on October 8, 2008 5005843.1 Dockets.Justia.com Page 1 UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION EIGHT MILE STYLE, LLC and MARTIN AFFILIATED, LLC, Plaintiffs, vs. Case No. 2:07-CV-13164 Hon. Anna Diggs Taylor Magistrate Judge Donald A. Scheer APPLE COMPUTER, INC. and AFTERMATH RECORDS d/b/a AFTERMATH ENTERTAINMENT, Defendants. _____________________________________ The Videoconference and Videotaped Deposition of HOWARD B. ABRAMS, Taken at 500 Woodward Avenue, Suite 4000, Detroit, Michigan, Commencing at 2:04 p.m., Wednesday, October 8, 2008, Before Denise M. Kizy, CSR-2466, RPR, CRR. MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 6 1 vague statement that, oh, we're going to want to use 2 you as an expert witness in this case we've got and 3 telling me nothing about the case or anything, 4 probably would have been some time towards the end of 5 July. 6 Q. How long have you known Mr. Martin? 7 A. I would guess 15, 20 years. 8 Q. Are you friends? 9 A. Our relationship is cordial, yes. 10 Q. Have you ever worked with Mr. Martin in any 11 professional capacity? 12 A. Matter of fact, yes. 13 Q. What -- in what situation have you worked with 14 15 Mr. Martin in the past? A. This was many years ago, and a gentleman named Armen 16 Boladian was in the midst of one of his interminable 17 lawsuits with George Clinton, and it involved a number 18 of songs and music publishing rights and sampling 19 rights and Joel owned a half interest, was a 20 co-publisher of one of the songs involved, and Joel -- 21 the case was in court and Joel asked me if I would 22 appear for him to give him enough time to sell his 23 co-publishing interest to Armen Boladian and get the 24 heck out of the case, and that's what happened. 25 Q. So you represented Mr. Martin in that situation? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 7 1 A. Yes. 2 Q. And did Mr. Martin pay you for your services? 3 A. Yes, he did. 4 Q. Do you recall when that occurred? 5 A. Oh, God. 6 Q. Have you ever represented Mr. Martin at any other 7 10, 15 years ago. time? 8 A. No. 9 Q. Have you ever served as an expert witness in any 10 matter that Mr. Martin has been involved in other than 11 this case? 12 A. No. 13 Q. How did it come about that -- I'm sorry. 14 A. Wait one minute. Oh, wait a minute. There was a case. Joel was not a 15 party to the case, but I think he was advising the 16 plaintiffs, and it was a case involving the Romantics 17 suing their former manager, and the Romantics lawyer, 18 a gentleman named Norm Ankers, asked me if I would be 19 an expert witness in that case. 20 nothing else ever happened. 21 deposition, nothing. 22 I think he was just friends with some of the guys in 23 the Romantics. 24 25 Q. I said yes, and No expert report, no I don't think Joel was a party. How did it -- how did it come about that you met Mr. Martin approximately 15 years ago? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 8 1 A. You know, I'm really not sure. The music industry in 2 Detroit compared to Los Angeles, New York or Nashville 3 is really pretty small, and you sort of -- if you -- 4 if you're at all involved in it, you sooner or later 5 bump into lots of -- you know, to most of the people. 6 How I first met Joel, I don't know. 7 sticks in the back of my mind that a mutual friend who 8 was going to law school, he was a promotion man, and 9 decided to become a lawyer. Somewhere it His name was Mike 10 diamond, if I recall correctly. 11 he's the guy who introduced us, but I could be wrong, 12 and this was 15, 20 years ago. 13 Q. 14 15 I think at some point And over the course of the last 15 years, have you ever gotten together socially with Mr. Martin? A. Well, if, for example, you're saying are there social 16 events we've both been at, for example, a little while 17 ago there was a fund-raiser for a group called the 18 Deaf Performing Arts Network where I had purchased a 19 table and where Joel Martin was present, and Joel may 20 have even been on the planning committee. Also -- 21 that was the most recent social occasion. Before 22 that, I think you'd have to go back to December of 23 last year. 24 Christmas party that's an open house for just about 25 everyone in the music industry. Every year Joel's studio throws sort of a MERRILL 800-826-0277 818-593-2300 LEGAL They take over a SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 9 1 bowling alley, and I remember going to that last year 2 and then maybe once in some previous year. 3 Q. Have you ever been to Mr. Martin's home? 4 A. Once quite a while ago. It was before he was married. 5 He was living with his wife to be over in a suburb 6 called Pleasant Ridge, and I was over at their house 7 on that occasion. 8 Q. What was that occasion? 9 A. I can't remember the exact date or exactly the 10 circumstances. 11 before they were married, and I stopped by there or 12 came by there, and that was it. 13 what it was about. I know I was there, I know it was I can't even remember 14 Q. Have you had Mr. Martin over to your home? 15 A. No. He knows where it is, but to the best of my 16 recollection Joel and/or Deneen have never been a 17 guest in our house. 18 Q. 19 20 Has Mr. Martin helped you in any way in any of your professional activities? A. Not really. 21 MR. BUSCH: Just for the record, let me 22 just say that the teleconference has been interrupted. 23 We've lost the connection with Mr. Pomerantz, so we're 24 going to go off the record until we can reestablish 25 the connection. MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 10 1 VIDEO TECHNICIAN: 2 Going off the record. The time is 2:16 and 30 seconds p.m. 3 (Recess taken at 2:16 p.m.) 4 (Back on the record at 2:29 p.m.) 5 VIDEO TECHNICIAN: 6 We're now on the record. The time is 2:29 and 20 seconds p.m. 7 BY MR. POMERANTZ: 8 Q. 9 Mr. Abrams, have you ever worked with Mr. Busch in any prior lawsuit? 10 A. No. 11 Q. Do you know a gentleman named Howard Hertz? 12 A. Yes. 13 Q. Have you ever worked with Mr. Hertz in the past? 14 A. I think I can remember two incidents. One involved -- 15 I don't know if you'd call this working with him. 16 involved a band called Sponge that had had some 17 success initially and then broke up, and they were 18 fighting over who had the rights to the name Sponge, 19 and I was representing two of the former members, and 20 he was representing the other two, and we tried to 21 negotiate an agreement of some -- of that and of some 22 of the other issues, and ultimately nothing much 23 happened. That was one. 24 25 One Then the other -- let me see if I've got this right. He represented a journalist who had MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 11 1 written an article about drug dealers and sort of 2 tongue-in-cheek in a side bar included a column on the 3 Ten Commandments of being a drug dealer. 4 was sort of tongue-in-cheek humor, and then Biggie 5 Smalls, or The Notorious B.I.G., recorded a record 6 based on that, and Howard threatened suit. 7 finally settled the matter, but in the process he 8 talked to me about it and asked my -- I know he asked 9 my opinion, but I don't know that much else ever came 10 You know, it They of it. 11 Q. Have you ever met Mark or Jeff Bass? 12 A. Once I met one of them. I'm trying to remember where. 13 I'm trying to remember where. 14 introduced to at least one of them, but I really don't 15 know them. 16 example, the Motor City Music Foundation sponsors an 17 annual program called the Detroit Music Awards, which 18 is sort of like the local answer to the Grammys, and I 19 know they've been there. 20 to them there, and so on, but certainly whatever our 21 relationship is it is not at all close. I know I've been I've been at events, you know, for I may have been introduced 22 Q. What experience have you had in the music industry? 23 A. Okay. Before I went into the academy, I was in 24 private practice in Chicago. 25 of clients in the music industry, artists and some MERRILL 800-826-0277 818-593-2300 LEGAL I represented a number SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 12 1 local producers and record labels. 2 joined the faculty at the University of Detroit, I 3 don't particularly look for clients, but sometimes 4 through a student or mutual friend they'll come to me 5 and ask me for advice. 6 Then after I The usual scenario is a student comes up to 7 me and they've got a brother or sister or cousin or 8 boyfriend or girlfriend who is in a band, and would I 9 please give them advice, and so on. I've sort of 10 developed a routine of saying have them meet me in the 11 school cafeteria, we'll have some coffee and we'll 12 talk, and I try to explain ASCAP and BMI and some of 13 the things to them, and then inevitably they leave me 14 with a tape and it's usually somewhere between 15 mediocre and God awful, but every now and then 16 somebody with real talent has asked me to then 17 represent them. 18 Q. I think -- You joined the faculty -- 19 MR. BUSCH: 20 BY MR. POMERANTZ: 21 Q. Hold on, Glenn. -- at the university -- I'm sorry, you're not done? 22 MR. BUSCH: 23 I want to say I don't think his question No, Glenn. 24 was limited to your private practice, but also any 25 societies and your experience in the music industry MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 13 1 from a scholarly perspective as well. 2 THE WITNESS: Well, I've certainly written 3 about entertainment law related topics and copyright. 4 The piece on Who's Sorry Now certainly came out of the 5 music industry. 6 a lot of my friends in the music industry so I can 7 stay current. 8 regularly to meetings of groups like the Copyright 9 Society of the USA, the entertainment law forum of the I've tried to remain in contact with I can -- you know, I go pretty 10 American Bar Association, where it's a question of 11 staying up-to-date and staying current. 12 read some of the stuff that's written in the area. Also I try to 13 BY MR. POMERANTZ: 14 Q. Any other experience you have in the music industry? 15 A. In other words, have I ever worked for a record 16 17 company or anything like that? Q. Any experience whatsoever in the music industry? Have 18 you basically given me a description of your 19 experience in the music industry or is there anything 20 more you'd like to add? 21 22 MR. BUSCH: Do you teach copyright or anything? 23 THE WITNESS: Oh, yeah, I teach courses in 24 copyright. 25 fact, I've broken that down into two courses. I teach courses in entertainment law. MERRILL 800-826-0277 818-593-2300 LEGAL In One is SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 14 1 entertainment law/film and television. 2 entertainment law/music. 3 number of panels about the music industry. 4 I'm sure other things will come to me, but the clients 5 I had before I became a professor included artist 6 producers, even one small record label in Chicago, and 7 then I've done some work since then, granted, on a 8 more selective basis, but, yeah, I've stayed in touch. 9 The other is I've certainly spoken on a You know, BY MR. POMERANTZ: 10 Q. Anything else? 11 A. Not that I can recall at the moment. 12 Q. Now you said that you were in private practice for a 13 while, and at that point in time you did represent 14 some clients in the music industry. 15 16 When were you in private practice? A. Let's see. Graduated law school in '66. '67 and '68 17 I was basically with the Office of the Public Defender 18 in Cook County, Illinois. 19 have been '67, '68. 20 21 Q. So, let's see, that would So basically from '69 -- Let me help you a little bit, Mr. Abrams. Mr. Abrams, let me try to speed this up. 22 Your resume says you were with a law firm 23 called Abrams, Mix and London from 1969 to 1977. 24 that the private practice period that you were 25 referring to? MERRILL 800-826-0277 818-593-2300 LEGAL Is SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 15 1 A. Yes, it is. 2 Q. And you stopped being in private practice then in 1977 3 and joined the University of Detroit Mercy School of 4 Law; correct? 5 A. That is correct. 6 Q. Since 1977, when you joined the law school faculty, 7 have you been involved in the negotiation or drafting 8 of any artist agreement? 9 A. Yes. 10 Q. How many? 11 A. Two or three. 12 Q. Can you identify each of those artist agreements that 13 14 you were involved in? A. Yes. One was for a group called The Verve Pipe. 15 Another was for an artist named Gia Warner. 16 there was one more. 17 now, and then also I did some work for a little indie 18 label here in Detroit that I set up their form 19 contract for them. I know I'm blocking on the name right 20 Q. What was the name of that indie label? 21 A. Let's see, it was Chaos and then -- then Sony wanted 22 the name for some reason or other and bought the name 23 out from them and they changed it. 24 personal involved. 25 Joel, do you know the name of her record MERRILL 800-826-0277 Sue Sommers is the 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 16 1 company? 2 I'd have to check. It's escaping me. 3 Q. How do you spell Sommers? 4 A. I believe it's S-o-m-m-e-r-s. 5 Q. Where is that label located? 6 A. In Detroit, maybe just -- maybe in Grosse Pointe which 7 is just the other side of the city line. 8 Q. Is it still in business? 9 A. Yes, it is. 10 Q. When did you work with that label to develop their 11 form contract? 12 A. I would say about five years ago. 13 Q. The first artist that you mentioned, was it -- was it 14 The Verve Pipe? 15 A. Yes. 16 Q. Could you spell that, please? 17 A. T-h-e V-e-r-v-e P-i-p-e. 18 Q. And who were you representing in that negotiation? 19 A. The artist. 20 Q. Can you give me the names of the artists who you were 21 22 working with? A. The lead singer was -- and rhythm guitar was Brian 23 Vander Ark. 24 on the name. 25 The other Vander Ark brother was the bass player. The drummer, Donny -- gosh, I'm blocking Jeff Dunning was the lead guitarist. MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 17 1 Okay, let's see. 2 was the rhythm guitar, bass player, drummer, that was 3 the group, and then they added a keyboard 4 percussionist later on named Doug. Rhythm guitar, lead guitar, vocalist 5 Q. Who was the other party to the contract? 6 A. RCA records. 7 Q. What year was that? 8 A. That would have been in the late '90s. 9 Q. Do you recall the name of any of the individuals who 10 were sitting on the opposite side of the negotiation 11 table from you? 12 A. 13 14 at the time, and I -- I forget her name. Q. 15 16 Whoever was the chief in-house counsel for RCA Records And you're sure that the name of the label was RCA Records? A. 17 It may have been RCA Records, Inc., or RCA, Inc., but it was RCA, what everyone knows as RCA. 18 Q. What kind of music does The Verve Pipe engage in? 19 A. Rock, alternative rock. 20 Q. Do you recall what any of the points of discussion 21 22 were in the negotiation of The Verve Pipe contract? A. There were a lot of them. Pretty much all the 23 financial terms were points of discussion. 24 of albums committed, what the recording funds would 25 be, mutual approval of producers, so on. MERRILL 800-826-0277 818-593-2300 LEGAL The number There were SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 18 1 other things, too. 2 when things were to be delivered. 3 Q. 4 You know, just timing issues as to Have you heard of something called a controlled composition clause? 5 A. Oh, yes. 6 Q. What is a controlled composition clause? 7 A. Controlled composition clause is basically when a 8 record company says to the recording artist that we do 9 not want to pay full price for mechanical licenses for 10 songs you own or control or have written, so that we 11 are going to ask you to give us typically both a 12 discount on the rate of the mechanical license and a 13 limit on the number of songs per album on which we 14 have to pay mechanical royalties. 15 Q. Anything else -- strike that. 16 Do you have an understanding whether a 17 controlled composition clause is anything other than 18 what you just described? 19 20 MR. BUSCH: Objection to form, asked and answered. 21 THE WITNESS: Well, a controlled 22 composition clause technically speaking is one of two 23 forms. 24 that mechanical licenses will be issued on certain 25 terms, and the other is an absolute issuing of the One, it can be a promise to the record company MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 20 1 The time is 2:47 and 31 seconds p.m. 2 (Recess taken at 2:47 p.m.) 3 (Back on the record at 2:52 p.m.) 4 VIDEO TECHNICIAN: 5 Back on the record. The time is 2:52 and 12 seconds p.m. 6 BY MR. POMERANTZ: 7 Q. 8 Mr. Abrams, did The Verve Pipe contract have a controlled composition clause in it? 9 A. As I recall, yes. 10 Q. Was that the subject of negotiation with RCA Records? 11 A. Yes, it was. 12 Q. What specifically do you recall discussing with RCA 13 14 Records regarding the controlled composition clause? A. The number of compositions that would be subject to 15 the cap. 16 statutory that would be paid on the compositions that 17 were paid for. 18 based on date of when the recording was finished or 19 when the recording was distributed or when the -- the 20 individual phono records were sold. 21 primary issues we discussed. 22 Q. We also discussed the percentage of We also discussed whether it would be Those were the Do you remember any other issues regarding the 23 controlled composition clause that you discussed with 24 RCA Records in connection with The Verve Pipe 25 contract? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 21 1 A. No, I don't. 2 Q. Did The Verve Pipe contract contain a controlled 3 4 composition clause that granted rights to RCA Records? A. 5 6 look at it to tell you. Q. 7 8 I'd have to look -- find a copy of the document and Well, did it use a word like "is hereby licensed"? Was that term in the contract? A. 9 It may have been. Without the contract in front of me, I can't tell you exactly what it said. 10 Q. Did it use the term "will license"? 11 A. It may have. Again, without the contract in front of 12 me, I'm not going to be able to tell you what the 13 contract said. 14 Q. 15 When was the last time that you looked at The Verve Pipe contract? 16 A. Some years ago. 17 Q. Now you said that another contract that you 18 participated in negotiating and drafting was a 19 contract involving the artist Gia Warner; is that 20 correct? 21 A. That is correct. 22 Q. Could you spell the name of that artist, please? 23 A. G-i-a W-a-r-n-e-r. 24 Q. When did you get involved in negotiating and drafting 25 that contract? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 28 1 document. 2 BY MR. POMERANTZ: 3 Q. You don't recall as you sit here today? 4 A. No, I do not. 5 Q. Did it use the term "is hereby licensed"? 6 MR. BUSCH: 7 THE WITNESS: 8 9 Asked and answered. I'd have to look at the document to tell you. BY MR. POMERANTZ: 10 Q. Did it use the term "will license"? 11 A. I would have to look at the document to tell you. 12 Q. Now since 1977, have you been involved in the 13 negotiation or drafting of any agreement containing a 14 controlled composition clause other than what you've 15 already testified to today? 16 A. Yes. 17 Q. What other contracts have you been involved in 18 negotiating or drafting that contained controlled 19 composition clauses? 20 A. There was a local production company, producer, who 21 was signing a band to the -- to his production company 22 where the deal was he was going to produce some 23 records and try to sell them to a major, and, if not, 24 put them out himself, and in that event there was to 25 be a split in the publishing, and that the clause was MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 29 1 that if he had to make any concessions to a major 2 label in terms of capping or reducing the rate on the 3 compositions, then he was free to do so and they would 4 be bound by it. 5 Q. 6 7 And is that what you would consider to be a controlled composition clause? A. No, but it implicates a possible future one. That in 8 and of itself, I don't know if that's controlled 9 composition clause. You know, in the sense that it 10 gave him power to enter into a controlled composition 11 clause if he sold or licensed the masters, in that 12 sense I suppose you could say it is; though, by itself 13 I think it's just a grant of authority. 14 Q. 15 And the only contract you were involved in was the one that gave that grant of authority? 16 A. Yes. 17 Q. What was the name of the local production company? 18 A. Work Ethic Productions. 19 Q. Where is it located? 20 A. Royal Oak, Michigan. 21 Q. What is the name of the individual or individuals who 22 you worked with there? 23 A. The principal is a guy named Nolan Mendenhall. 24 Q. And what was the name of the other party to the 25 contract? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 30 1 A. 2 It was actually a group of individuals under the professional name of Riot in Progress. 3 Q. Do you remember the names of any of those individuals? 4 A. Yeah, the lead singer, chief songwriter was a guy 5 named Steve Hopton. 6 Darowski. 7 guitarist was John -- again, I'd have to look at the 8 documents to tell you John's last name. The drummer was named Michael The bass player kept changing, and the 9 Q. When -- was that agreement actually signed? 10 A. Yes, it was. 11 Q. When was the agreement negotiated and signed? 12 A. In the 1990s. 13 Q. Can you be any more specific? 14 A. Not without looking at the document. 15 Q. And the individual band members that you mentioned, 16 17 are they all residing somewhere in the Detroit area? A. 18 19 Steve and Mike still are. John I believe has moved to Texas. Q. Are there any other contracts that you have been 20 involved in the negotiation and drafting in the last 21 30 years that contain controlled composition clauses? 22 A. 23 24 25 The last 30 years, that's basically since I've been in Detroit. Q. Not that I can think of. Now let me go back to the time when you were at the law firm from 1969 to 1977. MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 31 1 Were you involved during that time period 2 in negotiating and drafting artist agreements that 3 contained controlled composition clauses? 4 A. Yes. 5 Q. How many? 6 A. I'm not sure. 7 Q. Can you give me an estimate? 8 MR. BUSCH: 9 your best. 10 This is 30 years ago. Just do I mean this is not a memory test. THE WITNESS: Well, I'm trying to 11 distinguish between artists I represented who already 12 had a recording contract and artists where I was asked 13 to negotiate the contract in the first place, and 14 where I was actually involved in the drafting or 15 negotiating, I would say probably somewhere between 16 three to five. 17 BY MR. POMERANTZ: 18 Q. And do you recall the names of any of those artists 19 who you were representing in the negotiation and 20 drafting of those agreements? 21 A. Yes. 22 Q. Can you give me those names, please? 23 A. One would be Tom Powers, and that was a contract with 24 Arista. 25 was a contract with Mercury Records. One would be a band called The Flock and that MERRILL 800-826-0277 818-593-2300 LEGAL One would be a SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 32 1 contract for a band called J.C. Hartsfield and that 2 would have been with Mercury Records as well. 3 MR. BUSCH: Glenn, at this pace, man, we're 4 never going to get out of here by 5:30. 5 really all relevant information? 6 about 30 -- 7 MR. POMERANTZ: 8 MR. BUSCH: 9 THE WITNESS: 10 Is this I mean we're talking remember at the moment. 11 Q. Okay. Keep going. Those are the names I can BY MR. POMERANTZ: 12 Very. Do -- strike that. 13 Did any of those contracts contain a 14 controlled composition clause that used the phrase "is 15 hereby licensed"? 16 A. 17 18 Again, I would have to find the documents, if I still have copies, and look at them to tell you. Q. Did any of those contracts contain a controlled 19 composition clause that used the phrase "will 20 license"? 21 A. Once again, I would have to locate the documents, if I 22 still have them, look at them, read them to be able to 23 answer that question. 24 25 Q. What other experience do you have in connection with the interpretation of controlled composition clauses? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 41 1 Abrams 40-41, and let's also put in Abrams 42-43 as 2 Exhibit 256. 3 Mr. Abrams. 4 right now. These are your statements for services, I just want to put those in front of you 5 MARKED BY THE REPORTER: 6 DEPOSITION EXHIBIT NUMBERS 255-256 7 3:38 p.m. 8 Q. 9 Mr. Abrams, do you have Exhibits 255 and 256 in front of you? 10 A. Yes. 11 Q. Can you tell me what Exhibit 255 is? 12 A. Yes. 13 It's a statement for services rendered that I sent to the plaintiffs in this case. 14 Q. And can you tell me what Exhibit 256 is? 15 A. It's a statement for subsequent services rendered that 16 17 I sent to the plaintiffs in this case. Q. And do these statements accurately reflect the time 18 you spent on this matter and the tasks that you 19 undertook? 20 A. I believe so. 21 Q. All right. 22 So the first entry on Exhibit 255 is on July 31, 2008? 23 A. Yes. 24 Q. Is that the date when you were first formally retained 25 in this matter? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 42 1 A. 2 3 two earlier. Q. 4 5 Is that the date when you had the first substantive conversation on this matter? A. 6 7 It may have been that day, it may have been a day or It was either that date or within a couple of days prior to that. Q. All right. And on July 31, you spent one-and-a-half 8 hours speaking with Mr. Busch, Mr. Levinsohn and 9 Mr. Martin and then reviewing some documents; correct? 10 A. 11 12 No, that's a misstatement of what the document says. What the document says is -- Q. All right. Then why -- 13 MR. BUSCH: 14 middle of his answer. 15 He's answering. THE WITNESS: He's in the What the document says is -- 16 BY MR. POMERANTZ: 17 Q. Go ahead. 18 A. -- is through Thursday, July 31st, 2008. So included 19 in that hourly summary is some conversations that may 20 have been prior to that by a couple of days or several 21 days, and there were -- 22 23 Q. How much of that one-and-a-half hours was spent in -I'm sorry, were you finished, Mr. Abrams? 24 MR. BUSCH: 25 THE WITNESS: MERRILL 800-826-0277 818-593-2300 No, he wasn't. LEGAL It includes a number of SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 43 1 different telephone conversations, not just one. 2 BY MR. POMERANTZ: 3 Q. How much of that hour-and-a-half was spent in the 4 telephone conversations compared to the review of 5 documents? 6 A. 7 8 I would say half to two-thirds was review of the documents. Q. 9 10 Let's see. Do you recall what the initial documents were that were provided to you by Mr. Martin? A. Yes, he provided me with a copy of the license for 11 Lose Yourself. 12 other proposed licenses that weren't entered into, and 13 he provided me with a copy of one of the -- I think it 14 was the original F.B.T./Aftermath agreement. 15 Q. He provided me with copies of some Do you recall what you discussed with Mr. Busch, 16 Mr. Levinsohn and Mr. Martin in the conversations that 17 occurred either just prior to July 31 or on July 31? 18 A. Not the precise words, but the gist of the 19 conversation was the issue in the case was whether 20 Joel's companies or the companies he manages, Eight 21 Mile Style and Martin Affiliated, should be licensing 22 Apple directly for their permanent digital downloads. 23 Q. Anything else you recall being discussed? 24 A. My hourly rate, what kind of time pressure this 25 involved, that there were two cases and I was only to MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 44 1 2 be involved in this one, so on. Q. 3 By the way, have you ever negotiated an agreement with Apple? 4 A. No. 5 Q. Have you ever negotiated or drafted an agreement with 6 any provider of music on-line? 7 A. No. 8 Q. Prior to this engagement had you ever reviewed any 9 contract between Apple and any record company? 10 A. No. 11 Q. Prior to this engagement, had you ever reviewed an 12 agreement between any record company and any on-line 13 digital provider? 14 A. No. 15 Q. Then according -- I'm back on Exhibit 255. Then from 16 Friday through Sunday, August 1 -- from Friday, August 17 1 through Sunday, August 10, you had another half hour 18 of conversations and e-mailing on this matter; 19 correct? 20 A. Yes, that's what I billed for. 21 Q. All right. 22 23 And do you recall what was discussed during that time period? A. I think it was mostly about timing, getting documents, 24 things of that nature. 25 been very substantive it wouldn't have been quite so MERRILL 800-826-0277 818-593-2300 If it had been -- if it had LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 46 1 and working on the draft expert report? 2 A. The great majority. 3 Q. Do you recall approximately what time of the day on 4 August 11 you began working on this matter? 5 A. Probably around nine o'clock in the morning. 6 Q. Do you recall who prepared the first draft of the 7 8 expert report? A. 9 Yes. The prior phone conversations prior to that date were all of a sudden I found out that the expert 10 report was like due, you know, tomorrow or the next 11 day. 12 and Mr. Guilford about what the expert report should 13 contain, and in the interest of time I think I 14 suggested to them that -- or they suggested to me that 15 they would do a first draft and send it on to me and I 16 would go over it, modify it, and take it from there, 17 and we, you know, worked towards getting an expert 18 report done. 19 Q. 20 I had some general conversation with Mr. Busch So you got the first draft of the expert report from Mr. Busch; correct? 21 A. Yes. 22 Q. All right. 23 marked as Exhibit 257, please. 24 25 Let me ask if we could have Abrams 74 VIDEO TECHNICIAN: Would this be a good time to change videotape? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 60 1 2 composition clause? A. 3 I'd have to go look at the forms and see what they said. 4 Q. As you sit here today, you're not sure? 5 A. As I sit here today, I'm not sure. 6 Q. Do any of the controlled composition clauses that 7 you've been involved in negotiating and drafting use 8 the phrase "will license"? 9 A. I'd have to go back and look at the clauses. 10 MR. BUSCH: All of this has been asked and 11 answered at the beginning of this deposition. 12 object to it as asked and answered. 13 BY MR. POMERANTZ: 14 Q. I Are you certain, Mr. Abrams, that you've ever read a 15 contract that uses the phrase "will license" in a 16 controlled composition clause other than what you've 17 read in this case? 18 A. Am I 100 percent dead certain? 19 Q. Did you read Mr. Paterno's deposition transcript for No. 20 the first time before or after you signed the expert 21 report in this case? 22 A. No, I'm not sure. 23 Q. Let me see if I can refresh your recollection. 24 A. You know, there's something here which can clarify 25 Let me -- that for me. MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 61 1 Q. Yeah, look at Exhibit 262, Mr. Abrams. 2 A. Hold on a minute. 3 I'm trying to get the answer to your question. 4 I did not list it in Exhibit A attached to 5 my expert report, so I probably didn't read it until 6 after I had submitted the expert report. 7 Q. 8 9 All right. you. A. Wait a minute. 10 11 If you'll look at Exhibit 262 in front of Let me find it. 262, okay. Q. And you see that's an e-mail from Mr. Guilford to you 12 on August 13 that is attaching the Paterno deposition 13 transcript; do you see that? 14 A. Yes, I do. 15 Q. And August 13 is the day after you signed your expert 16 report; correct? 17 A. That is correct. 18 Q. So is it fair to say that the first time you even 19 received the Paterno deposition transcript was the day 20 after you signed the report? 21 A. Yes. 22 Q. When did you receive for the first time the deposition 23 transcript of Mr. Martin? 24 A. I'm not sure. 25 Q. Okay. Look at Exhibit 260. MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 72 1 BY MR. POMERANTZ: 2 Q. All right. Do you see -- let me go down to your 3 conclusions at the bottom of page one of your report, 4 and we'll go to paragraph number one there first. 5 Do you see that? 6 A. Yes. 7 Q. All right. And in the first sentence you refer to the 8 '98 and 2003 agreements, and then you put in quotes 9 the words "will license." 10 Do you see that? 11 A. Yes. 12 Q. What is your basis for your understanding of what the 13 words "will license" mean in paragraph 6(a) of the 14 1998 contract? 15 A. 16 That because will is future tense, it's something they will do in the future. 17 VIDEO TECHNICIAN: 18 Mr. Abrams, your mike fell off. 19 THE WITNESS: 20 BY MR. POMERANTZ: 21 Q. Oh, okay. All right. And then you see that you put the words 22 "distributors/licensees" in quotes in the same 23 sentence? 24 A. Mm-hmm, yes. 25 Q. Is that yes? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 84 1 product, that the entire controlled composition clause 2 is vitiated or that just that rate is vitiated? 3 A. The application of the clause to digital downloads is 4 vitiated. 5 something like, you know, Aftermath manufacturing the 6 records is not. 7 Q. The application of the clause to let's say What is the support for your position that the entire 8 clause is vitiated with respect to any digital 9 products? 10 MR. BUSCH: 11 THE WITNESS: Asked and answered. The support is, again, the 12 section of the statute and the portion of the Senate 13 Report that I cited. 14 BY MR. POMERANTZ: 15 Q. 16 All right. Could you turn to page three of your report. 17 At the very top you're discussing paragraph 18 6(a) and you state the following: 19 quote, self-effectuating, close quote, controlled 20 composition clause as that term is known and 21 understood within the music industry and under 22 copyright. 23 This is not a, Do you see that? 24 A. Yes. 25 Q. Okay. In that phrase, that term, are you referring to MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 85 1 the term "self-effectuating"? 2 A. Yes. 3 Q. Okay. 4 And you put the term "self-effectuating" in quotes. 5 6 Why did you put that in quotes? A. 7 8 depositions. Q. 9 Had you ever heard the term "self-effectuating" applied to controlled composition clauses before you 10 11 Because it was the term that was being used in the got involved in this case? A. I've heard the term used before. Whether or not it 12 was in connection with the controlled composition 13 clause, I cannot say. 14 Q. Well, as you sit here today can you recall a single 15 time when you heard the expression "self-effectuating" 16 used in connection with controlled composition 17 clauses? 18 A. Other than in the deposition transcripts and in the 19 conversations with different people about this case, I 20 cannot say that I've heard it used in connection with 21 the controlled composition clause. 22 I don't remember. 23 Q. Self-effectuating -- 24 A. If I have -- 25 Q. I don't -- I have I'm sorry, let me start over again. MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 86 1 A. If I have heard it, I don't remember. 2 Q. When you say in your report that the term 3 "self-effectuating" has a known and understood meaning 4 within the music industry, what did you mean that by? 5 A. That basically I would think that music industry 6 lawyers, copyright types, music publishers, would 7 understand that. 8 that the road crew on, you know, some itinerant rock 9 band would understand it. 10 Q. I did not mean to say, you know, Well, if you've never heard the term 11 "self-effectuating" applied to controlled composition 12 clauses before this case, why do you think that that 13 term is known and understood within the music industry 14 in that context? 15 A. Because self-effectuating is a term that is fairly 16 regularly used in legal discourse to apply to things 17 like contracts, trusts, wills, assignments, 18 franchising, licenses, so I would -- 19 Q. 20 Have you ever used the term "self-effectuating" in anything that you've written? 21 A. No. 22 Q. Now you say that the term "self-effectuating" is also 23 a term that is known and understood under copyright. 24 25 What were you referring to there? A. For example, in copyright transfers sometimes there MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 87 1 are an agreement and then a separate transfer 2 document. 3 the agreement. 4 transfer" and "I will transfer." 5 Q. Sometimes the transfer is built right into It's the difference between "I hereby Have you ever seen the term "self-effectuating" used 6 in any copyright publication describing anything in 7 the copyright business? 8 A. Not off the top of my head. 9 Q. All right. The next sentence says: Self-effectuating 10 controlled composition clauses will say that the 11 controlled compositions are hereby licensed. 12 Do you see that? 13 A. Yes. 14 Q. What's the basis of that opinion? 15 A. Well, for a clause to be self-effectuating or to use a 16 couple of synonyms, self-fulfilling, self-enforcing, 17 you would say something like "I hereby license" or "I 18 license." 19 would not put it in the future tense. 20 Q. 21 22 You would not say "I will license." You What other terminology do you think would satisfy your standard as a self-effectuating license? A. If they had said "I hereby license" or "we hereby 23 license" or even use the -- left out the word "hereby" 24 and said "we license." 25 Q. How about if it says that you and the artist grant an MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 111 1 Q. Can the licensing record label license the composition 2 to the third party licensee under the controlled 3 composition clause in the contract with the artist? 4 MR. BUSCH: Object to form, incomplete 5 hypothetical, vague and ambiguous, calls for a legal 6 conclusion, and you're asking him a question about an 7 unknown contract with unknown terms between unknown 8 parties, and I object to the -- I object to it. 9 THE WITNESS: Well, the basic point, 10 because you've got to read this in context with the 11 both preceding and subsequent sentences, is that these 12 clauses in terms of being a license in and of 13 themselves do not apply to unaffiliated third parties. 14 The practice of the industry has been these 15 unaffiliated third parties must get separate 16 mechanical licenses. 17 BY MR. POMERANTZ: 18 Q. 19 What's your basis of your knowledge about that particular practice in the industry? 20 A. From reading about it, from talking to people. 21 Q. Could you turn to the top of page four of your report? 22 A. Mm-hmm. 23 Q. At the top of that page, you have clauses one through 24 five. 25 Do you see that? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 118 1 BY MR. POMERANTZ: 2 Q. Did you do anything as part of your engagement to 3 investigate any of the industry practices and customs 4 that you referred to in this report? 5 A. Yes. 6 Q. What did you do? 7 A. I spoke with a number of people, mostly lawyers, but I spoke with -- 8 not entirely, and asked them, you know, what their 9 understanding was. 10 Q. When did you do that? 11 A. Late July, early August. I'm not sure of the exact 12 dates, but when it first became clear to me what the 13 issue was, there were several people I called who I 14 consider extremely knowledgeable or experienced and 15 asked them. 16 Q. 17 Are any of those conversations reflected on your time statements? 18 MR. BUSCH: 19 Objection. That document speaks for itself. 20 THE WITNESS: I don't think so. 21 BY MR. POMERANTZ: 22 Q. Why not? 23 A. Because I didn't feel that that was appropriate to 24 25 bill the client for. Q. I mean I -- Why? MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 119 1 A. Just sort of a -- a gut feeling. I don't -- I have 2 the luxury of not having to follow the billing rules 3 of, you know, a law firm, and when I call a friend -- 4 Q. Who did -- 5 A. -- and we talk, you know, how are your kids, how's 6 your family, blah, blah, blah, by the way, I have a 7 question, and that takes about two, three minutes, you 8 know, let it slide. 9 time on this case. 10 Q. 11 God knows I've let slide a lot of How many conversations of two or three minutes did you have as part of this engagement? 12 A. Several. 13 Q. Who did you speak with? 14 A. One person was Mike Milom. I don't know the exact number. He's a music attorney in 15 Nashville, Tennessee. 16 music attorney out in California. 17 named Bob Paletz who had worked for K-tel in terms of 18 putting their compilation albums together, and also 19 had worked for both Sony and Capital in terms of 20 trying to get their stuff placed on things like 21 compilation albums and so on and so forth. 22 Luneau in New York. 23 Novak here in Detroit. 24 Some of the conversations were short. 25 Q. Another was Don Engel. He's a Another was a guy John Noel Silverman in New York. Mike There may have been others. Are all of these people -- MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 135 1 EIGHT MILE STYLE, LLC and 2 MARTIN AFFILIATED, LLC, 3 Plaintiff, 4 vs. Case No. 2:07-CV-13164 5 APPLE COMPUTER, INC. 6 and AFTERMATH RECORDS d/b/a 7 AFTERMATH ENTERTAINMENT, 8 Defendants. 9 10 11 VERIFICATION OF DEPONENT 12 13 I, having read the foregoing deposition 14 consisting of my testimony at the aforementioned time 15 and place, do hereby attest to the correctness and 16 truthfulness of the transcript. 17 18 19 _____________________________ 20 HOWARD B. ABRAMS 21 Dated: 22 23 24 25 MERRILL 800-826-0277 818-593-2300 LEGAL SOLUTIONS Fax 818-593-2301 www.merrillcorp.com Page 136 1 2 CERTIFICATE OF NOTARY STATE OF MICHIGAN ) 3 4 ) SS COUNTY OF OAKLAND ) 5 6 I, DENISE M. KIZY, a Notary Public in 7 and for the above county and state, do hereby 8 certify that the above deposition was taken before 9 me at the time and place hereinbefore set forth; 10 that the witness was by me first duly sworn to 11 testify to the truth, and nothing but the truth; 12 that the foregoing questions asked and answers made 13 by the witness were duly recorded by me 14 stenographically and reduced to computer 15 transcription; that this is a true, full and correct 16 transcript of my stenographic notes so taken; and 17 that I am not related to, nor of counsel to either 18 party nor interested in the event of this cause. 19 20 21 ________________________ 22 DENISE M. KIZY, CSR-2466 23 Notary Public, 24 Oakland County, Michigan 25 My Commission expires: MERRILL 800-826-0277 818-593-2300 LEGAL July 28, 2013 SOLUTIONS Fax 818-593-2301 www.merrillcorp.com

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