Case 2:07-cv-05715-CAS-PJW Document 674 Filed 10/12/15 Page 1 of 8 Page ID #:15650

1 DAVID A. STEINBERG (SBN 130593)

das@msk.com
2 MITCHELL SILBERBERG & KNUPP LLP
11377 West Olympic Boulevard
3 Los Angeles, CA 90064-1683
4 Telephone: (310) 312-2000
Facsimile: (310) 312-3100
5
CHRISTINE LEPERA (CL 9311)
6
ctl@msk.com
MITCHELL SILBERBERG & KNUPP LLP
7 12 East 49th Street, 30th Floor
8 New York, New York 10017-1028
Telephone: (212) 509-3900
9 Facsimile: (212) 509-7239
10 Attorneys for Various Defendants
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12

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

14 Osama Ahmed Fahmy,

15
Plaintiff,

CASE NO. CV 07-05715 CAS (PJWx)

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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.

17 Jay-Z (aka Shawn Carter), Timothy

Mosely, Kyambo Joshua, Rob Bourdon,
18 Brad Delson, Mike Shinoda, Dave Ferrell,
Joseph Hahn, Chester Bennington, Big
19 Bad Mr. Hahn Music, Chesterchaz
Publishing, EMI Blackwood Music, Inc.,
20 EMI Music Publishing Ltd., Kenji
Kobayashi Music, Lil Lulu Publishing,
21 Machine Shop Recordings, LLC, Marcy
Projects Productions II, Inc., MTV
22 Network Enterprises Inc., Nondisclosure
Agreement Music, Paramount Home
23 Entertainment, Inc., Paramount Pictures
Corporation, Radical Media, Rob Bourdon
24 Music, Roc-A-Fella Records, LLC,
Timbaland Productions, Inc., UMG
25 Recordings, Inc., Universal Music and
Video Distribution, Inc., and Warner
26 Music, Inc.,
27
Mitchell
Silberberg &
Knupp LLP
7164273.10

The Honorable Christina A. Snyder

Trial Date:
Time:
Ctrm:

October 13, 2015

9:30 a.m.
5

Defendants.

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OPPOSITION TO PLAINTIFFS BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS

Case 2:07-cv-05715-CAS-PJW Document 674 Filed 10/12/15 Page 2 of 8 Page ID #:15651

On Friday, October 9, 2015, one court day before trial, Plaintiff filed a

2 document styled as a bench brief on Egyptian law on authorship rights. Docket

3 No. 664. In reality, this is an improper and unwarranted motion for
4 reconsideration of this Courts Order granting Defendants in limine motion No. 3
5 precluding evidence of Plaintiffs ownership of a copyright in Khosara based
6 upon sound recordings of Khosara. See Docket No. 626 at 19-23. Not only is
7 Plaintiffs request procedurally improper, it also rests upon circular logic and is
8 substantively unavailing.
9

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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Mitchell
Silberberg &
Knupp LLP
7164273.10

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OPPOSITION TO BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS

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Plaintiffs Request for Reconsideration Meets None of the

Requirements of L.R. 7-18

Plaintiff makes no effort to comply with the strict prerequisites necessary for

4 reconsideration. Motions for reconsideration are disfavored and rarely granted.

5 Brown v. United States, 2011 U.S. Dist. LEXIS 9215, at *5-6 (C.D. Cal. Jan. 31,
6 2011); see also Re/Max Mega Group v. Maxum Indem. Co., 2010 U.S. Dist.
7 LEXIS 136404, at *1 (C.D. Cal. Dec. 21, 2010) (reconsideration is an
8 extraordinary remedy). [A] motion for reconsideration should not be granted,
9 absent highly unusual circumstances, unless the district court is presented with
10 newly discovered evidence, committed clear error, or if there is an intervening
11 change in the controlling law. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
12 2003) (internal quotation marks omitted).
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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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A motion for reconsideration of the decision on any motion may be

made only on the grounds of (a) a material difference in fact or law
from that presented to the Court before such decision that in the
exercise of reasonable diligence could not have been known to the
party moving for reconsideration at the time of such decision, or (b)
the emergence of new material facts or a change of law occurring
after the time of such decision, or (c) a manifest showing of a failure
to consider material facts presented to the Court before such decision.
No motion for reconsideration shall in any manner repeat any oral or
written argument made in support of or in opposition to the original
motion.

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
Mitchell
Silberberg &
Knupp LLP
7164273.10

28 exercise of reasonable diligence have been known to Plaintiff prior to the Courts
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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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To the contrary, Plaintiff relies on an Egyptian law enacted in 2002 more

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

27 arguments already rejected by this Court in granting Plaintiffs third motion in

Mitchell
Silberberg &
Knupp LLP
7164273.10

28 limine. See L.R. 7-18 (No motion for reconsideration shall in any manner repeat
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1 any oral or written argument made in support of or in opposition to the original

2 motion.); see also Page v. Stanley, 2014 U.S. Dist. LEXIS 23040, at *4 (C.D. Cal.
3 Feb. 24, 2014) (Snyder, J.) (denying motion for reconsideration where plaintiff
4 failed to show that any requirement of L.R. 7-18 was satisfied, but instead
5 plaintiff reiterates his account of the facts underlying his claims).
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In opposing Defendants in limine motion, Plaintiff argued he should be able

7 to use sound recordings as evidence of his Khosara copyright due to recognitions

8 in contemporaneous film credits and on albums that Khosara sung by Hafez
9 was composed by Hamdy. Docket No. 583 at 5 (emphasis added). Plaintiff now
10 argues again that [t]wo works list Baligh Hamdy as the composer of the Hafez
11 recording: (1) the film Fata Ahlami (in the credits), and (2) a cassette of Hafezs
12 songs (on the cover page). Brief (Docket No. 664) at 1:21-2:2 (emphasis added).
13

The Court soundly rejected this same argument the first time Plaintiff made

14 it, because it ignores the filtering process necessary to exclude elements of a

15 sound recording that are not protected as part of the underlying musical
16 composition. See Docket No. 626 (Order on in limine motions) at 20, citing
17 Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002). The Court
18 thus correctly determined that, even if illustrative of the copyright in the
19 composition, the introduction of sound recordings at trial to prove the nature and
20 scope of Hamdys ownership carries a significant risk of confusing and
21 misleading the jury. Docket No. 626 at 22. There is no basis for Plaintiffs
22 improper request that the Court reconsider its Order, based on the same arguments
23 and facts already rejected.
24

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
Mitchell
Silberberg &
Knupp LLP
7164273.10

28 (C.D. Cal. July 23, 2015) (Snyder, J.). This Court reviewed and considered all
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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
2.

Article 138(3) Does Not Advance Plaintiffs Position, and Does

Not Change This Courts Analysis

In granting Defendants motion to preclude evidence of plaintiffs ownership

8 of a copyright in the Khosara composition based upon sound recordings of

9 Khosara, the Court noted that the case law is legion that when a comparison is
10 made for purposes of ascertaining whether there has been infringement of a
11 copyright in a written composition, the factfinder may only compare those musical
12 elements which are actually protected, which in most cases will be the sheet music
13 of the written composition. Docket No. 626, at 20, citing Apple Comp. Inc. v.
14 Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir. 1994); Newton v. Diamond, 204 F.
15 Supp. 2d 1244, 1249 (C.D. Cal. 2002). As a result, the Court held:
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Presenting the sound recordings at trial carries a

significant risk of confusing and misleading the jury.
The parties do not dispute that at least the 1992 recording
was used in Big Pimpin. However, permitting plaintiff
to use the exact sound recording of Khosara used in Big
Pimpin as a representation of his copyright in the written
composition of Khosara could lead the jury to attach
undue weight to the similarities between the two

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Silberberg &
Knupp LLP
7164273.10

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Apparently recognizing the improper nature of his request, Plaintiff attempts to

explain away the requirements of L.R. 7-18 by claiming that, like all in limine
rulings, [this one] is subject to change. Brief, at 1:8-10, citing McSherry v. City
of Long Beach, 423 F.3d 1015, 1022 (9th Cir. 2005). This attempt to avoid the
restrictions of L.R. 7-18 fails. In McSherry, the question was whether the Ninth
Circuit had jurisdiction to hear an appeal from in limine rulings. The court held
that it did not. Id. at 1022. That does not stand for the proposition cited or that a
plaintiff need not comply with the rules for reconsideration of in limine rulings in
the District Court. See, e.g., Reed v. City of Modesto, 2015 U.S. Dist. LEXIS
54086, at *5-7 (E.D. Cal. Apr. 24, 2015 (denying motion for reconsideration of in
limine ruling); Lund v. 3M Co., 2015 U.S. Dist. LEXIS 99109, at *6 (C.D. Cal.
July 21, 2015) (same; plaintiffs attempt to revivify previously rejected arguments
does nothing to persuade the Court to depart from its earlier statements and
rulings).
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recordings, as distinct from the musical composition

itself. The risk that the jury may assign such undue
weight is particularly problematic because plaintiff
admits that his copyright does not include the 1992
recording.

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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).
9
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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Article 138(3) (emphasis added).

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Plaintiffs logic in relying on this article is circular. A musical

compositions copyright protects the generic sound that would necessarily result
from any performance of the piece. Newton, 204 F. Supp. 2d at 1249 (emphasis
added). Even assuming certain recordings identify Hamdy as a composer of the
Khosara composition (and that they were admissible), this Court already
considered this issue and rejected Plaintiffs contention. There is nothing different
between Article 138(3) and U.S. law an author is one who creates a work.

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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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Silberberg &
Knupp LLP
7164273.10

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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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3.

The Documents on Which Plaintiff Appears to Rely For This

Belated Argument Are Not Admissible

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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Mitchell
Silberberg &
Knupp LLP
7164273.10

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MITCHELL SILBERBERG & KNUPP LLP

By: /s/David A. Steinberg
Christine Lepera
David A. Steinberg
Attorneys for Various Defendants
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OPPOSITION TO BENCH BRIEF ON EGYPTIAN LAW ON AUTHORSHIP RIGHTS