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BMI v Haibo

BMI v Haibo

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Published by marty7838
bmi v taibo - admissibility of logger report
bmi v taibo - admissibility of logger report

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Published by: marty7838 on Mar 16, 2012
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et al.
10-CV-240SHAIBO, INC., d/b/a YINGS WINGS THINGSand HAIBO L. JIANG, individuallyDefendants.
Plaintiffs, Broadcast Music Inc., (“BMI”) and several other entities holding musiccopyrights, bring this action against Haibo, Inc., doing business as Yings Wings Things(“Yings”), and its sole shareholder and director, Haibo L. Jiang for alleged violations of theUnited States Copyright Act of 1976, 17 U.S.C. § 101
et seq.
(the “Copyright Act”)
Presently before this Court is Plaintiffs’ motion for summary judgment. (Docket No. 21.) For the following reasons, that motion is granted.
The facts of this case are brief and mostly undisputed. BMI is a “performing rightslicensing society,” meaning that it licenses the right to publicly perform copyrighted musicalcompositions on behalf of the copyright owners of those works. (Plaintiffs’ Statement, ¶ 1;
This Court has accepted facts in Plaintiffs’ statement of facts to the extent that they have notbeen controverted by Defendants. See Local Rule 56(a)(2) (statements not specifically controverted aredeemed admitted).
Docket No. 21-3.) It grants music users – like broadcasters, music halls, bars, and nightclubs – the right to publicly perform any of the works in BMI’s repertoire, which includessongs from each of the other plaintiffs in this action. (Id., ¶ 3, 4) According to BMI, it sent 26 letters and made 90 phone calls to Haibo Jianginforming him that he needed to retain a licensing agreement before its songs could beperformed at Yings. (Id., ¶ 19.) However, Haibo Jiang, who is the sole shareholder of Haibo, Inc., which in turn owns and operates Yings, a bar and restaurant in Tonawanda,New York, ignored these entreaties and did not enter into a licensing agreement with BMInor any of the plaintiffs. (Id., ¶ 12.)It is undisputed that on November 14 and15, 2009, BMI sent a “logger” – a BMIauthorized agent whose duty is to record unlicenced performances – to Yings to determineif Haibo was violating its members’ copyrights. The logger, Michael Nelson, heard threesongs publicly performed, “Landslide,” “Travelin’ Soldier,” and “Play Something Country,”which required a license that Haibo did not have. (Id., ¶ 15.) Plaintiffs also claim that onDecember 22 and 23, 2009, BMI’s logger, Mitchell Greco, heard five other songs that itowned the licensing rights to: “Can’t Take My Eyes Off of You,” “Piece of My Heart,”“Sympathy for the Devil,” “Glycerine,” and “Do You Realize.”
(Id., ¶ 16.)
B. Procedural History
Plaintiffs filed a complaint in this Court on March 22, 2010. (Docket No. 1.)Defendants answered on April 30, 2010. (Docket No. 8.) Thereafter, Plaintiffs moved for 
It appears that BMI sent loggers to Yings on only two occasions, but BMI identifies each occasionwith two calender days because the loggers stayed past midnight on November 14 and December 22. For the sake of clarity and concision, this Court will hereupon refer only to the date on which the loggers firstarrived at Yings.
summary judgment on March 18, 2011. (Docket No. 21.) After briefing, which concludedon May 16, 2011, this Court took the motion under consideration without oral argument.
III. DISCUSSIONA. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grantsummary judgment if the movant shows that there is no genuine dispute as to any materialfact and the movant is entitled to judgment as a matter of law.” A fact is “material” only if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A “genuine”dispute exists “if the evidence is such that a reasonable jury could return a verdict for thenon-moving party.” Id. In determining whether a genuine dispute regarding a material factexists, the evidence and the inferences drawn from the evidence “must be viewed in thelight most favorable to the party opposing the motion.” Adickes v. S. H. Kress & Co., 398U.S. 144, 158–59, 90 S. Ct.1598, 1609, 26 L. Ed. 2d 142 (1970) (internal quotations andcitation omitted).“Only when reasonable minds could not differ as to the import of evidence issummary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citationomitted). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is anyevidence in the record from which a reasonable inference could be drawn in favor of theopposing party, summary judgment is improper.” Sec. Ins. Co. of Hartford v. Old DominionFreight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) (citations omitted). The function of thecourt is not “to weigh the evidence and determine the truth of the matter but to determine

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