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Damiano v. Sony Music Entertainment

November 13, 2000

JAMES DAMIANO,
PLAINTIFF,
V.
SONY MUSIC ENTERTAINMENT, INC. AND BOB DYLAN,
DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

This matter comes before the Court upon plaintiff Damiano's motion for reconsideration of this Court's December 16, 1996 Order granting summary judgment in favor of defendants, plaintiff's motion for reconsideration of this Court's November 23, 1999 and August 18, 2000 Orders finding plaintiff in contempt of earlier confidentiality orders issued in this case, and plaintiff's motion to vacate such confidentiality orders entered by Magistrate Judge Joel B. Rosen in 1996. For the reasons stated herein, plaintiff's motions will be denied.

I. BACKGROUND

The present case commenced over five years ago when plaintiff Damiano filed a complaint alleging that the acts of defendants Sony Music Entertainment, Inc. and Bob Dylan ("Defendants") constituted copyright infringement in violation of federal copyright law, 17 U.S.C. § 101, (Compl. Count I), and false designation of origin, misappropriation of property, breach of confidence, fraud, and mail fraud in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1051, et seq. (Compl., Counts II, III, IV, V, VI).On March 14, 1996, Magistrate Judge Joel B. Rosen issued the first of two protective orders in this case designating certain information and proprietary material possessed by defendants as confidential. On August 6, 1996, Judge Rosen granted Defendants's motion to designate all discovery materials and deposition transcripts as confidential. See Damiano v. Sony Music Entm't, 168 F.R.D. 485, 493 (D.N.J. 1996)(finding that evaluation of the facts under the Pansy *fn1 balancing test supported a blanket protective order). Judge Rosen concluded that a blanket protective order was appropriate because it was likely that plaintiff would publicize depositions and other documents for financial profit and further reasoned that "using raw discovery materials for financial profit is not what this court considers to be a legitimate purpose for disclosure." Damiano, 168 F.R.D. at 492-93. The two confidentiality orders issued by Judge Rosen instructed all parties to keep all discovery materials confidential, and directed that any violation of the Orders would be punishable by contempt.

On September 16, 1996, Defendants filed a motion for summary judgment on all of plaintiff's claims. In a December 16, 1996 Opinion and Order, this Court granted Defendants' motion for summary judgment after finding that no reasonable jury could conclude that the words and phrases allegedly copied by Dylan and published by Sony were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works or that the melodies contained in Defendant Dylan's "Dignity" were substantially similar in total concept and feel to Damiano's "Steel Guitars." This Court found that plaintiff's proofs failed to demonstrate that his works attained a threshold of originality sufficient to be protected by the copyright laws, and that no reasonable factfinder could conclude that there was an appropriation by defendants of the lyrics or melodies that Damiano had created. The Court further found that plaintiff's complaint was a deceptive "cut and paste job" that portrayed plaintiff's verses as if they were contiguous writings when in fact the verses had been edited, rearranged and titled in a misleading attempt to more closely resemble Dylan's works for purposes of this litigation. Damiano v. Sony Music Entm't, 975 F. Supp. 623 (D.N.J. 1996). *fn2

At an October 29, 1999 hearing, after plaintiff published by use of the Internet confidential discovery materials protected under Judge Rosen's August, 1996 Order, this Court found plaintiff to be in contempt of the protective Orders and directed him to immediately cease all such dissemination. (See Order filed October 29, 1999.) At the hearing on October 29, 1999, Mr. Damiano apologized to defendants and to the Court for his contempt of the confidentiality orders, *fn3 and asked for the Court to be lenient, indicating, "It makes no sense. I want to come on - off - I don't want to be on the internet. It's senseless, it's senseless and I don't want to hurt - I just want to forget the whole thing. I give you my word I won't even put up the story. I just want to end it, I really do," by which he meant discontinuing his Internet war against Sony and Dylan. (See Tr. Oct. 29, 1999 at 26:19-24.)

In a November 4, 1999 Memorandum Opinion, augmenting the Oral Opinion of October 29, 1999 (see id. at 38:8 to 47:24), this Court reviewed the full scope of plaintiff's contemptuous activities, which included the posting of confidential discovery materials on various websites, disseminating such confidential discovery information via e-mail and in chat rooms, and offering such materials for sale, just as Judge Rosen had predicted three years before when entering the confidentiality order. *fn4 Further, the Court explicitly relied upon Mr. Damiano's promise to completely discontinue his publication of protected materials, deciding to not impose a contempt fine at the October 29, 1999 hearing. *fn5 On November 23, 1999, following a final hearing to determine the appropriate contempt remedy on November 18, 1999, this Court Ordered plaintiff to pay defendants' attorney fees related to the contempt proceeding, which were calculated as $14,651.69 in this Court's Judgment filed December 20, 1999. That remedy did not suffice to deter Damiano's violations, as became apparent this year.

On August 1, 2000, after learning that plaintiff had resumed posting confidential discovery materials on his websites, defendants again requested that Plaintiff be held in contempt, and in response this Court entered an Order to Show Cause directed to Damiano, filed on August 3, 2000. On August 11, 2000, this Court conducted a hearing at which plaintiff was to show cause why he should not be held in contempt for his continued activities in violation of the Confidentiality Orders. (Order, Aug. 3, 2000.) Plaintiff Damiano submitted no substantive opposition and admitted that his conduct violated this Court's orders despite his promises in 1999 not to do so. At the hearing, plaintiff again represented to the Court his desire to end his contemptuous activities and promised that he would permanently remove the subject websites in their entirety, including the confidential discovery materials contained therein. (Order, Aug. 18, 2000.) On August 18, 2000, this Court issued an Order finding plaintiff's continued dissemination of court ordered confidential discovery materials via his websites to be willful contempt of this Court's October 29, 1999 Order for Contempt and Injunctive Relief. (Order, Aug. 18, 2000.) Further, the court found that plaintiff had made no payment toward the 1999 contempt judgment which had required him to pay the reasonable legal fees of defense counsel which his contempt had provoked, in the sum of $14,651.69. The August 18, 2000 Order thus also directed plaintiff to pay to defendants the previously imposed civil contempt judgment (from December 20, 1999) in the amount of $14,651.69, which remained unpaid, together with a civil contempt fine of $1,000.00 to the Clerk of the Court. The same Order directed plaintiff to pay an additional sum for Defendants's attorney's fees associated with the second contempt hearing, which was calculated as $14,967.31 in the Court's Order filed October 18, 2000.

Plaintiff filed the present reconsideration motions on August 30, 2000, for reconsideration of this Court's December 16, 1996 Order granting summary judgment to defendants, for reconsideration of this Court's November 23, 1999 and August 18, 2000 Orders, and for relief from Judge Rosen's 1996 Confidentiality Orders. On October 16, 2000, this Court issued an Order sealing plaintiff's instant motion and all the supporting documentation, since some of plaintiff's submissions themselves included confidential discovery material protected by the prior Orders of Judge Rosen and this Court. Although sealed, the Court has reviewed these documents. For the reasons stated herein, plaintiff's motions will be denied.

II. DISCUSSION

Plaintiff now moves for reconsideration of this Court's December 16, 1996 Order granting summary judgment in favor of defendants, for reconsideration of this Court's November 23, 1999 and August 18, 2000 Orders, and for relief from Judge Rosen's 1996 Confidentiality Orders. In support of his motions, plaintiff argues that there are genuine issues of material fact to be decided regarding his copyright infringement claim against Defendants and that his actions during the course of this litigation did not constitute contempt. (Pls.' Certification at 101.) *fn6 Defendants maintain that plaintiff never created anything that copyright laws protect and cite to this Court's summary judgment opinion and the Third Circuit's dismissal of plaintiff's appeal to that decision. For the reasons stated herein, plaintiff's motions will be denied.

A. Standards for Reconsideration and Reargument

According to Fed. R. Civ. P. 59(e), a party seeking to alter and amend a judgment must file a motion within ten days of the judgment and must show one of the following grounds: (1) an intervening change in the controlling law; (2)the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,677 (3d Cir. 1999)(citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Similarly, pursuant to Local Civil Rule 7.1(g), *fn7 a motion for reargument (often referred to as a "motion for reconsideration") will be granted only when "dispositive factual matters or controlling decisions of law" were presented to the court but not considered. Damiano v. Sony Music Entm't, 975 F. Supp. 623, 634 (D.N.J. 1997)(quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)). Only where the district court overlooked matters that might have led to a different result had they been considered will a motion for reconsideration be granted. G-69 v. Degnan, 748 F. Supp 274, 275 (D.N.J. 1990)(quoting Carteret Savings Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)).

1. December 16, 1996 Summary Judgment Opinion

On December 16, 1996, following a hearing and full consideration of all plaintiff's claims, this Court granted defendants' motion for summary judgment and dismissed the complaint in its entirety. Damiano v. Sony Music Entm't, 975 F. Supp. 623 (D.N.J. 1996), recons. denied, 975 F. Supp. 633 (D.N.J. 1997), app. dism'd, 166 F.3d 1204 (3d Cir. 1998). Plaintiff's motion for reconsideration under Fed. R. Civ. P. 59(e) and reargument under L. Civ. R. 7.1(g) of this Court's December 16, 1996 grant of summary judgment in favor of defendants, which is his second motion for such reconsideration, is time barred and therefore must be denied.

Plaintiff first filed a motion for reconsideration of this Court's December 16, 1996 summary judgment opinion on January 21, 1997, after this Court permitted an extension of the time in which such a motion could be filed. At that time, plaintiff was represented by attorney Steven M. Kramer. This first motion for reconsideration was denied by this Court on August 20, 1997. See Damiano v. Sony Music Entm't, 975 F. Supp. 633 (D.N.J. 1997). On September 25, 1998, the Third Circuit dismissed plaintiff's appeal to that decision. See 166 F.3d 1204 (3d Cir. 1998).

In his present motion for reconsideration of this Court's 1996 Opinion granting summary judgment, filed almost four years after the challenged Order was issued and over two years after his appeal to the Third Circuit was dismissed, plaintiff does nothing more that recycle arguments previously considered by this Court in his opposition to the motion for summary judgment and in his first motion for reconsideration. For example, plaintiff argues that this Court should allow him to amend his complaint to include a different version of his song, "Steel Guitars," so that it might be compared to Dylan's song "Dignity," see Damiano, 975 F. Supp. at 630-31; Pls.' Certification at 101-03, and that summary judgment was improper because "[t]his court never addressed the similarity of the background melodies" in "Dignity" and "Steel Guitars." (Pls.' Certification at 100). There is no complaint to amend; it was dismissed in 1996. This type of conduct is typical of this plaintiff's inability to accept that his claims were litigated carefully and fully and found to be without merit. Because plaintiff has not cited an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error of law by this court, no reopening or reconsideration of this Court's December 16, 1996 Judgment is appropriate, and the motion is denied for untimeliness under Fed. R. Civ. P. 59 and L. Civ. R. 7.1(g).

2. The November 23, 1999 Order Imposing ContemptSanctions

Plaintiff's motion for reconsideration under Fed. R. Civ. P. 59(e) and reargument under L. Civ. R. 7.1(g) of this Court's November 23, 1999 Order is time barred because it was filed more than ten days after the entry of the order being challenged. Any Motion for Reconsideration or Reargument of this Court's November 23, 1999 Order was due no later than December 7, 1999. Plaintiff filed the instant motion on August 30, 2000, more than eight months late. This lateness is compounded by the fact that Damiano appeared before this Court in the intervening period on August 11, 2000 and never raised objection to the November 23, 1999 Order.

Further, if Damiano actually presented some issue that the Court had overlooked, in deference to his pro se status this Court could relax the strict timetable for a reconsideration motion concerning the 1999 contempt order, but he has not done so. Plaintiff simply seeks to relitigate stale issues. Even assuming that plaintiff had timely filed this motion, plaintiff would be unable to meet his burden of showing that reconsideration was proper. Plaintiff has not cited an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error of law. Because plaintiff has not met his burden under Fed. R. Civ. P. 59(e) or L. Civ. R. 7.1(g), no reconsideration of the November 23, 1999 Order is appropriate.

3. The August 18, 2000 Order Imposing ContemptSanctions

Plaintiff also moves for reconsideration of this Court's August 18, 2000 Order. Although this motion was timely filed within the requisite ten day period, it must nonetheless be denied because plaintiff fails to meet either the burden under Fed. R. Civ. P. 59(e) or under L. Civ. R. 7.1(g) and he argues only that this Court improperly found him to be in contempt of Confidentiality Orders entered by this Court in 1996. Plaintiff offers no evidence of an intervening change in law, the availability of new evidence, or a clear error of law in support of his motion to alter this Court's judgment. Plaintiff argues only that "[i]t is illegal and unconstitutional for this court to accept as truth the biased contention of Bob Dylan's attorney, Orin Snyder, when no unbiased facts exist to support Mr. Snyders [sic] contention that James Damiano attempted to commercially exploit his claims against Mr. Dylan" (Pls.' Cert., para. 1), and reargues his position that no confidentiality orders should have been granted and that he was improperly held in contempt of such orders. This Court did not "overlook" arguments ...


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