Free Trial Brief - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. Jordan Green (No. 001860) Lawrence Palles (No. 020263) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, Plaintiff, v. AVNET, INC., et al., Defendants. No. CV2004-0621 PHX SRB DEFENDANTS'SUPPLEMENTAL TRIAL MEMORANDUM

Defendants submit their Supplemental Trial Memorandum to address one damage claim and one theory of liability Plaintiff disclosed for the first time eight days prior to trial. In a revised draft of the parties Proposed Joint Pre-Trial Order provided to

Defendants at 12:00 p.m. on July 10, 2006, Plaintiff asserted for the first time that: 1. As to damages, "Avnet is jointly and severally responsible for actual damages

for over 100,000 individual infringements from third-party downloads by its acts, in an amount of at least $200 each;" (See Proposed Joint Pre-Trial Order at pp. 6-7) and 2. Defendants are liable because they "certainly derived vicarious and/or

contributory value from them [Plaintiff' photographs] and used them to sell Avnet, its s image, and its products." (See Proposed Joint Pre-Trial Order at p. 48.) ...
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I.

LEGAL ANALYSIS A. Plaintiff Cannot Litigate A Theory Of Liability And Pursue $20,000,000 In Damages Which Were Disclosed For The First Time Eight Days Prior to Trial.

Plaintiff should be precluded from seeking separate awards of at least $200 for each alleged third-party download because he did not disclose this damage computation until eight days before trial. Plaintiff' Amended Complaint, Disclosure Statements, and s

discovery responses fail to disclose his $20,000,000 damage calculation for the "over 100,000 individual infringements from third-party downloads." Plaintiff was required to disclose a computation of all damages he claimed in his Initial Disclosure Statement. Fed. R. Civ. P. 26(a)(1)(C). Rule 37(c)(1) requires the exclusion of any information not

disclosed as required by Rule 26(a)(2)(B). The Rule is intended to be a "self-executing," "automatic sanction," "provid[ing] a strong inducement for disclosure of material that the disclosing party would expect to use as evidence." See Fed. R. Civ. P. 37 Advisory Committee notes (1993). Since Plaintiff did not disclose his $20,000,000 damage

computation until the eve of trial, he should be precluded from pursuing those damages. Similarly, Plaintiff asserted for the first time on July 10, 2006 that Defendants' liability rested, in part, on a contributory infringement theory.1 See Elliot Industries

Limited Partnership v. BP America Production Co., 407 F.3d 1091, 1121-22 (10th Cir. 2005) (plaintiffs not permitted to wait until last minute to ascertain and refine the theories upon which they intend to build their case); Green Country Food Market, Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1279 (10th Cir. 2004) (same). Although Plaintiff has argued that Maag and Vallee are jointly and severally liable based on a vicarious liability theory, he
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Plaintiff uses the phrase "contributory value." See Proposed Joint Pre-Trial Order at p. 48. Plaintiff' citation to Casella v. Morris, 820 F.2d 362 (11th Cir. 1987) and Metros Goldwyn-Mayer Studios, Inc. v. Grokster, LTD, 125 S. Ct. 2764 (2005) indicates that he is referring to contributory infringement. Id. Both cases distinguish between contributory and vicarious liability and are adjudicated on the issue of contributory liability. MetroGoldwyn-Mayer, 125 S. Ct. at 2776, n. 9; Casella, 820 F.2d at 365.
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has never asserted that any of the Defendants are liable for contributory infringement.2 Defendants were not put on notice of this theory of liability until the week before trial, despite the fact that this lawsuit was filed over two years ago. Therefore, Plaintiff should be precluded from asserting any contributory infringement claims. B. Plaintiff Cannot Recover $200 Or More Per Alleged Third-Party Download Of His Photographs As A Matter Of Law.

Plaintiff cannot recover separate actual or statutory damage awards of at least $200 for each alleged third-party download of his photographs because 17 U.S.C. § 504 (C)(2) is inapplicable and he is entitled to only one statutory award. Section 504 (C)(2) provides, in pertinent part: In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. 17 U.S.C. § 504 (c) (2). This statutory provision is inapplicable because it relates to the permitted range of a statutory damage award, not actual damages. Id. The provision is also inapplicable because the Court has already determined that the infringement was willful, thus the issue of discretionary reduction of a statutory damage award for non-willful infringement is irrelevant. If Plaintiff elects statutory damages he is entitled to only one award for infringement of a single work. 17 U.S.C. § 504 (c)(1); see also Screen Gems-Columbia Music, Inc. v. Metlis & Lebow Corp., 453 F.2d 552, 554 (2nd Cir. 1972) (Copyright Act allows only a single recovery for single infringement despite multiple defendants with
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"One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from the direct infringement while declining to exercise a right to stop or limit it." Metro-Goldwyn-Mayer, 125 S. Ct. at 2776.
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joint and several liability); Bouchat v. Champion Products, Inc., 327 F. Supp. 2d 537, 552-53 (D. Md. 2003) (rejecting as "absurd," Plaintiff' claim for separate statutory s damage awards from hundreds of defendants arising out of a single infringement); Warner Bros., Inc. v. Dae Rim Trading, Inc., 677 F. Supp. 740, 769 (S.D.N.Y. 1988) ("where two or more persons join in or contribute to a single infringement, they are all jointly and severally liable but ` such circumstances in a single infringement action there is but a in single set of statutory damages.'"). The Court previously ruled that the three photographs at issue in this case constitute a single "work" within the meaning of 17 U.S.C. § 504(c)(1). See October 24, 2005 Order. Therefore, Plaintiff is entitled to only one statutory award for the infringement of his photographs. DATED this 12th day of July, 2006. FENNEMORE CRAIG, P.C.

By s/Jordan Green Jordan Green Lawrence Palles Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on July 12, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 Nancy Giles, Esq. Giles Legal PLC 733 W. Willetta Street Phoenix, Arizona 85007

s/Jordan Green
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