Free Reply to Response to Motion - District Court of Arizona - Arizona

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R. Buck McKinney Texas Bar #: 00784572 LAW OFFICE OF BUCK MCKINNEY PO Box 6231 Austin, Texas 78762-6231 Telephone: (512) 236-0150 Facsimile: (512) 444-1879 ATTORNEY FOR PLAINTIFF UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA PHOENIX DIVISION JOHAN DE MEIJ, d/b/a AMSTEL MUSIC, BV Case No.: No. CIV 04-0341 PHX RCB PLAINTIFF, vs. TEMPE UNION HIGH SCHOOL DISTRICT, CORONA DEL SOL BAND BOOSTERS, GREAT VIDEO PRODUCTIONS, ARIZONA MUSIC EDUCATORS ASSOC., ARIZONA ACADEMY FOR THE PERFORMING ARTS, INC., MARK D. RICHARDSON, WILLIAM J. RICHARDSON AND CHRIS EVANS DEFENDANTS PLAINTIFF'S REPLY TO DEFENDANT TEMPE UNION HIGH SCHOOL DISTRICT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

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Plaintiff has sued Defendants Tempe Union High School District (the "District) and the
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Arizona Academy for the Performing Arts ("AAPA") for, inter alia, copyright infringement. The District and the AAPA have asserted affirmative defenses under 17 U.S.C. § 412, claiming that their acts of infringement "commenced" prior to the registration of Plaintiff's copyright, and that Plaintiff is therefore barred from recovering statutory damages and/or attorney's fees. (See District's Answer to Plaintiff's Second Amended Complaint ("SAC") ¶¶ 64-65; AAPA's Answer

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to Plaintiff's SAC, ¶ 60).

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On July 21, 2005, Plaintiff filed a motion for summary judgment attaching competent summary judgment proof that the Defendants' acts of infringement were committed after Plaintiff's registration of copyright. (Docket # 124).

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On August 19, 2005, the District filed a separate response. (Docket # 137). Plaintiff files this reply. I. MEMORANDUM

In response to Plaintiff's motion for summary judgment, the District concedes that the acts of infringement alleged against it "occurred after July 6, 2002" (the date Plaintiff

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registered his work in the U.S.). (District's Response at p. 6 and n. 3). Nonetheless, it argues that because Mark and Bill Richardson commenced their infringement of Plaintiff's copyrights prior to registration, Plaintiff is barred from recovering statutory damages or attorney's fees under 17 U.S.C. § 412. Id.

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As set forth below, the District's argument isn't supported by competent summary judgment proof, and accordingly, the District has failed to establish any genuine issue of material fact which might defeat Plaintiff's motion. Moreover, the District's assertion that Mark and Bill Richardson's independent acts of infringement constituted "commencement" of the District's separate acts of infringement is a misstatement of the applicable law.

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A.

No Competent Summary Judgment Proof The sole evidentiary support for the District's Response is a series of exhibits attached

to the AAPA's Statement of Facts ­ most notably, the declaration of co-defendant Mark Richardson.1 For the reasons adequately set forth in Plaintiff's Reply to the AAPA's

See District's Response at pp. 2-3, and its Statement of Facts, ¶¶ 7-9.

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Response, those exhibits do not constitute competent summary judgment proof, and therefore cannot be relied upon to defeat Plaintiff's Motion for Summary Judgment.2 B. The Richardsons' Acts of Infringement Did Not Constitute "Commencement" of the District's Subsequent Acts of Infringement Because the District hasn't presented any competent summary judgment proof supporting its Response, Plaintiff could stop here. Nevertheless, for sake of clarity and

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completeness, Plaintiff addresses the District's fatuous argument that the infringing acts of Mark and/or Bill Richardson constituted "commencement" of the District's subsequent acts of infringement. Mark Richardson has averred that his preparation of an unauthorized derivative version of Plaintiff's work commenced in "early spring 2002" and was "substantially completed" by the first week in June 2002. (Richardson Decl. ¶¶ 4-6). The District claims that Richardson's "pre-registration" acts of infringement constituted "commencement" of the District's postregistration acts of infringement, despite the fact that neither Richardson nor the District have alleged that Richardson's acts were within the course and scope of his employment for the

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District. (District's Response, p. 6). The trouble is, none of the cases cited by the District stand for such a proposition. Each of the cases cited by the District involved one or more defendants committing the same act of infringement (both before and after registration) in the same manner and for the same purpose.3 This case is entirely different. It involves two defendants committing separate

Plaintiff hereby incorporates into this Reply the arguments set forth in his Reply to the AAPA's Response to Plaintiff's MSJ. Parfums Givenchy, Inc. v. C&C Beauty Sales, Inc., 832 F. Supp. 1378 (C.D. Cal. 1993) (single importer's ongoing sales of perfume utilizing same infringing box design); Do It Best Corp. v. Passport Software, Inc., 2005 WL 743083 (March 31 2005) (single corporate defendant's continued and ongoing use of same unlicensed computer software); Johnson v. Jones, 149 F.3d 494 (6th Cir. 1998) (University and two employees' ongoing and

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acts of infringement (one of them before registration, the other after registration) in a separate manner and for separate purposes. A time-line for the cases cited by the District looks like this:

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A (commits infringement) . . . . . registration date . . . . . A (commits same infringement) Or A & B (commit infringement) . . . . registration date . . . . A & B (commit same infringement) However, a time-line for the case at hand looks like this: A (commits infringement) . . . . registration date . . . . A & B (commit different infringement) . .

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. . . B & C (commit different infringement)4 Obviously, the cases cited by the District are distinguishable from the case at hand, and therefore provide no support for the District's argument. Moreover, the fact that the Richardsons' averred pre-registration infringements were qualitatively different (in the rights

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they affected, the manner in which they were committed and the damages which are recoverable for same) provides an additional reason why the Richardsons' acts do not constitute "commencement" of the District's post-registration acts. See Mason I, 741 F.Supp. at 1285, citing Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 609 F. Supp. 1325, 1331 (E.D. Pa. 1985) ("[a] `new' or `separate' basis for the award of statutory damages is

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created . . . where there is a difference between pre- and post-registration activities"). The

recurrent distribution of same set of photographs); Mason v. Montgomery Data, Inc., 741 F.Supp. 1282, 1285 (S.D. Tex. 1990) ("Mason I") (Defendants' ongoing and recurrent sales of infringing maps), Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992) ("Mason II") (same facts as "Mason I"); Johnson v. Univ. of Virginia, 606 F. Supp. 321 (W.D. Va. 1985); Ez-Tixz, Inc. v. Hit-Tix, Inc., 919 F. Supp. 728 (S.D.N.Y. 1996) (corporation and it's owners' ongoing and recurrent sales of tickets using the same unlicensed computer program); CD Law, Inc. v. Lawworks, Inc., 1994 WL 840929 (W.D. Va. 1994) (Corporation and its officers' ongoing and recurrent sales of the same stolen software). Where "A" represents the Richardsons, "B" represents the District, and "C" represents co-defendant Great Video.
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Richardsons' alleged pre-registration acts of infringement consisted of the preparation of a derivative version of Plaintiff's copyrighted work. (Richardson's Decl. ¶¶ 4-8). The "damage" Plaintiff suffered as a result of this illegal act was the loss of a license fee for the derivative

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work. See Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir. 1994). As for the District, its acts of infringement consisted of (a) the unauthorized performances of Plaintiff's copyrighted work and (b) derivative liability for co-defendant Great Video's unauthorized reproduction and sale of audio-visual recordings of Plaintiff's work. Plaintiff's damages for these infringements consist of (a) his lost performance licensing fees,5 and (b) his lost synchronization license fees.

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Because the acts of the Richardsons and the District form the bases of different awards of damages, they involve separate "commencement" dates. Mason I, 741 F.Supp. at 1285.6 In summary, this is a case where different parties committed separate and distinct acts of infringement, in a different manner and for different purposes for which separate awards of

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damages are recoverable. As such, the District's argument that the Richardsons' averred acts of pre-registration infringement constituted "commencement" of the District's post-registration acts of infringement is simply unfounded. II. CONCLUSION

Plaintiff has presented this Court with simple and direct proof of the date upon which
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the District "commenced" infringement of Plaintiff's copyrights ­ specifically, September 5,

To further prove the point of "separateness," performance fees are typically collected not by Plaintiff, but by a third party - the Association Society of Composers, Authors and Publishers (ASCAP). There is a logical rationale for the foregoing distinction. As the courts have noted, registration provides "constructive notice" to an infringing defendant that its conduct is illegal. Johnson, 149 F.3d 494, 505. A potential infringer is presumed to receive constructive notice of registration when he commits his "initial act" of infringement. Id. For the District, the date for such constructive notice was the date of its first pubic performance, which the District readily concedes was September 5, 2002 ­ some two months after registration of Plaintiff's copyright. (See District's Response at p. 6).
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2002. Because the District has presented no competent summary judgment evidence that could raise a genuine issue of material fact regarding any prior acts of infringement committed by the District (or anyone else for that matter), and because the relevant law doesn't support the

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District's argument that the Richardsons' alleged pre-registration acts of infringement constituted "commencement" of the District's post-registration acts of infringement, this Court should grant Plaintiff's motion for summary judgment. Dated this 6th day of September, 2005.

s/ R. Buck McKinney________________ R. Buck McKinney, Esq. LAW OFFICE OF BUCK McKINNEY Texas Bar No. 00784572 P.O. Box 6231 Austin, Texas 78762-6231 Telephone (512) 236-0150 Facsimile (512) 444-1879 ATTORNEY FOR PLAINTIFF JOHAN DE MEIJ d/b/a AMSTEL MUSIC, BV

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CERTIFICATE OF SERVICE I certify that on September 6, 2005, a copy of the attached document was electronically transmitted using the CM/ECF System for electronic filing and transmittal of a notice of electronic filing to the following CM/ECF registrants: Garrick L. Gallagher [email protected] Debora L. Verdier [email protected] Sanders and Parks, PC 3030 N. Third Street, Suite 1300 Phoenix, AZ 85012-3099 Francis G. Fanning [email protected] Law Offices of Francis G. Fanning 500 E. Southern Ave., Suite B Tempe, AZ 85282-5211 Martin P. Clare [email protected]; [email protected]; [email protected] Campbell, Yost, Clare, & Norell, P.C. 101 North First Avenue, Suite 2500 Phoenix, AZ 85003 C. Mark Kittredge [email protected]; [email protected]; [email protected] Scott S. Minder [email protected]; [email protected] Perkins Coie Brown & Bain, P.A. 2901 North Central Avenue Post Office Box 400 Phoenix, AZ 85001-0400 Thomas K. Irvine [email protected] Irvine Law Firm, PA 1419 N. Third St, Ste. 100 Phoenix, AZ 85004

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I certify that on September 6, 2005 a copy of the attached document was served on the following parties via U.S. mail: J. Gregory Osborne Tolman & Osborne, P.C. 1920 E. Southern Ave., Ste.104 Tempe, AZ 85282

s/ R. Buck McKinney________________
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