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Opposition To Plaintiff Filing (October 2015)
Opposition To Plaintiff Filing (October 2015)
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OPPOSITION TO PLAINTIFF
OSAMA AHMED FAHMYS
BENCH BRIEF/MOTION FOR
RECONSIDERATION ON
EGYPTIAN LAW ON
AUTHORSHIP RIGHTS
(DOCKET NO. 664)
v.
Trial Date:
Time:
Ctrm:
Defendants.
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OPPOSITION TO PLAINTIFFS BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS
On Friday, October 9, 2015, one court day before trial, Plaintiff filed a
This Court already reviewed and rejected Plaintiffs argument that there is
10 ample evidence that the sound recordings accurately represent Plaintiffs copyright
11 in Khosara. Id. As discussed below, in opposing Defendants in limine motion,
12 Plaintiffs argument included reliance on certain credit to Hamdy as a composer.
13 This Court held that, even if the sound recordings are illustrative of Plaintiffs
14 copyright in the written composition of Khosara, presenting the various sound
15 recordings carries a significant risk of confusing and misleading the jury. Id.
16 Plaintiffs belated citation to an unremarkable provision in Egypts 2002
17 intellectual property law changes nothing, provides no basis for any challenge to
18 the Courts rationale or decision, and instead creates a straw man argument.
19 Further, the exhibits on which Plaintiffs apparently intend to base this argument
20 (though Plaintiff fails even to identify them specifically by number) are
21 inadmissible hearsay lacking in foundation or authentication. Simply stated,
22 Plaintiff has offered no basis for his improper reconsideration motion that should
23 alter this Courts proper ruling, based on binding Ninth Circuit authority, that
24 Plaintiff may not use various sound recordings to prove the elements of his
25 copyright.
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OPPOSITION TO BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS
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Plaintiff makes no effort to comply with the strict prerequisites necessary for
In the Central District, such motions are further subject to the stringent
14 standards of Local Rule 7-18 (Brown, 2011 U.S. Dist. LEXIS 9215, at *6):
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22 L.R. 7-18. [T]he Court cannot grant a reconsideration motion unless the moving
23 party establishes that one of these circumstances exists. Quevedo v. Macys, Inc.,
24 2011 U.S. Dist. LEXIS 151464, at *3-4 (C.D. Cal. Oct. 31, 2011).
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Plaintiffs request satisfies none of these conditions, nor does it even purport
26 to do so. Plaintiff does not demonstrate that any fact or law upon which he bases
27 this belated request was not known to Plaintiff let alone that it could not in the
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28 exercise of reasonable diligence have been known to Plaintiff prior to the Courts
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OPPOSITION TO BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS
1 in limine ruling. Nor does Plaintiff purport to present any new facts or new law
2 that have emerged since this Courts in limine ruling.
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4 than a dozen years ago. Plaintiffs Brief (Docket No. 664), at 1:12-20. Plaintiff
5 has used the services of a purported expert on Egyptian copyright law, Dr. Loutfi,
6 since no later than November 2007. See Docket No. 17 (Declaration of Mohamed7 Hossam Loutfi filed by Plaintiff on November 27, 2007). Dr. Loutfi also
8 submitted an expert report on February 24, 2015. See Trial Ex. 159. Yet, despite
9 having an Egyptian law expert for years, in eight years of litigation, Plaintiff has
10 never before stated any intent to rely on, or even referenced Article 138(3). See
11 Trial Ex. 159 (Dr. Loutfis expert report, containing no reference to Article
12 138(3)). At any time since the inception of this action, Plaintiff could have made,
13 but failed to make, this new (unavailing) argument, and offers no justification for
14 this failure. In any event, as discussed below, the statute to which Plaintiff refers
15 the Court stands for an unremarkable proposition that does not alter any of the
16 rationale or predicates for this Courts in limine order.
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Nor is the purported evidence on which Plaintiff claims he will rely new
18 evidence. Plaintiffs brief disingenuously fails even to identify with any specificity
19 the particular trial exhibits on which he claims he will rely for this belated
20 argument. Plaintiff appears to be referencing Trial Exhibits 127 and 128. These
21 exhibits were marked at Mr. Fahmys 2009 deposition and were included on the
22 Joint Trial Exhibit List (with objections) submitted by the parties on August 10,
23 2015 (Docket No. 529), well before motions in limine were even filed, let alone
24 decided. These are not new facts or facts that Plaintiff did not or could not have
25 known at the time of this Courts in limine ruling (or even at the time of briefing).
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Instead, Plaintiff does what the local rules expressly disallow: he repeats
28 limine. See L.R. 7-18 (No motion for reconsideration shall in any manner repeat
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OPPOSITION TO BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS
The Court soundly rejected this same argument the first time Plaintiff made
Plaintiff also makes no attempt to show that this Court failed to consider
25 material facts presented to the Court before its decision on Defendants motion in
26 limine No. 3. Local Rule 7-18 requires that the prior decision resulted in a
27 manifest injustice. Martello v. Rouillard, 2015 U.S. Dist. LEXIS 97129, at *5
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28 (C.D. Cal. July 23, 2015) (Snyder, J.). This Court reviewed and considered all
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OPPOSITION TO BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS
1 material facts. Thus, Plaintiff has not set forth sufficient grounds for
2 reconsideration of this Courts Order. Docket No. 626 (Order on Pre-Trial
3 Motions), at 22. On this ground alone, Plaintiffs reconsideration motion must be
4 denied.1
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OPPOSITION TO BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS
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4 Id. at 22. The Court also noted that plaintiff identifies several iterations of the
5 sound recordings in which Hamdy is listed as a composer (the same argument
6 made here), but rejected Plaintiffs argument that this evidence constituted proof
7 that the sound recordings exemplify his copyright in Khosara. Id. (emphasis
8 added).
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By pointing to the definition of Author in Article 138(3) of Egypts 2002
10 law, Plaintiff now seeks a belated way around the filtering requirement required by
11 Newton and properly imposed by the Court. 2 In English translation, this article
12 states as follows:
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Author: The person who creates the work. Is considered author of the work
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the person whose name is indicated on, or attributed to, the published work
as being its author, unless proven otherwise.
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Under Newton, the court must first determine what elements of Plaintiffs work
are protected by his copyright in the musical composition, as opposed to those
26 protected by the copyright in the sound recording, and filter out the latter.
Newton, 204 F. Supp. 2d at 1249, citing Sony Pictures Enter., Inc. v. Fireworks
27 Enter. Group, Inc., 156 F. Supp. 2d 1148, 1157 (C.D. Cal. 2001).
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OPPOSITION TO BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS
1 Newton (and this Courts Order) confirm that a composition remains distinct from
2 a sound recording a tenet also no different under Egyptian law and that the use
3 of a sound recording (not owed by the composition owner) to prove the scope of
4 the composition is highly prejudicial. Article 138(3) does not change that analysis.
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This motion should be denied on the further ground that the evidence on
8 which Plaintiff appears to intend to rely for this belated argument is wholly
9 inadmissible. Exhibit 127 is an audiocassette purportedly including sound
10 recordings by Abd El Halim Hafez, which says nothing about Baligh Hamdy.
11 Exhibit 128 is a videocassette purportedly containing the film Fata Ahlami. Even
12 assuming arguendo these exhibits could be relevant, they have not been (and likely
13 cannot be) properly authenticated, lack foundation, and to the extent they are
14 offered for the truth of the matter asserted (i.e., any statement regarding Hamdys
15 authorship of any musical composition embodied on the cassette or in the film)
16 constitute inadmissible hearsay. Further, for the same reasons this Court has
17 excluded evidence of sound recordings to prove the ownership or content of the
18 Khosara composition, any probative value of these exhibits is substantially
19 outweighed by the danger of confusing the issues, misleading the jury, and the
20 resulting unfair prejudice. Fed. R. Evid. 403.
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For these additional reasons, the Court should reject Plaintiffs motion for
22 reconsideration and, for all of the reasons specified in the Courts Order, continue
23 to exclude all sound recordings to prove the copyright in the Khosara musical
24 composition.
25 DATED: October 12, 2015
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