Republic of the Philippines

Department of Justice
OFFICE OF THE CITY PROSECUTOR
City of Manila

NELSON A. DEL CASTILLO,

Complainant, I.S. No. XV-07-INV-09J-080608
-versus- For: Violation of Section 193 in
relation to Section 217 of R.A. 8293
or the Intellectual Property Code of
the Philippines
JIM BRICKMAN, ET AL.,
Respondents.
x-----------------------------------------x

MEMORANDUM

Complainant, NELSON D. CASTILLO through counsel and unto this

Honorable Office, in compliance with the Order of this Honorable Investigating
Prosecutor dated 03 April 2010, most respectfully submits this Memorandum
and states the following:

THE PARTIES

1. Complainant NELSON D. CASTILLO, of legal age, Filipino, with

address at 22 Xavierville Avenue, Loyola Heights, Quezon City. On the other
hand Respondent Jim Brickman (Brickman) is an American pianist, songwriter
and recording artist, while Respondent Universal Tunes (Universal),
Respondent Compass Productions/Sommerset Entertainment Ltd. (Compass)
is the publishing company and the record label/producer/distributor of the
2007 “Hope” CD of Brickman respectively.

STATEMENT OF THE CASE AND RELEVANT PROCEEDINGS

2. On, 26 October 2009, Complainant, filed before this Honorable

Office a Complaint-Affidavit charging Respondent James “Jim” Brickman of
violating of Section 193, in relation to Section 217 of Republic Act No. 8293,
otherwise known as the “Intellectual Property Code of the Philippines”. The
complaint stemmed from the inclusion of Complainant’s song “If” in his
Brickman’s 2007 “Hope” album, without the consent of Complainant and
without the authorship attributed to him as the composer. For ease of
reference, reproduced below are pertinent portions of Complaint-Affidavit:

“I am a self-taught musician/composer/singer formerly

based in my home province of Iloilo. Sometime in 1992, I

1
recorded the song titled “So, If”. The said song, along with
nine (9) other original compositions were included in the
album, “Faithfully, Nelson Del Castillo”, released under
Silver String Productions in Iloilo City.

xxx

On 27 May 1993, I filed an application for the

registration of the copyright of the song, “So, If” with the
National Library in Manila.

Acting on said application, the National Library issued a

Certificate of Copyright Registration dated 18 June 1999,
attesting to my ownership of the copyright over the above-
mentioned song. Attached as Annex “A” is a copy of the
Certificate of Copyright Registration, dated 18 June 1993,
issued by the National Library.

On 30 June 1993, I signed a three-year Artist Contract

with BMG Records (Pilipinas), Inc. (BMG), represented by its
President, Felino C. Medina. Said contract provided, among
other things, that I record songs exclusively for BMG during
the duration of the contract and at the same time, entitling
me to receive remuneration or royalties for my
work/services. Attached as Annex “B” is a copy of the Artist
Contract dated 30 June 1993.

Later in 1993, I entered into a Songwriter’s Agreement

with BMG. Thereupon, BMG manufactured and sold in the
Philippines and Thailand, copies of my album “Faithfully
Nelson Del Castillo”. It is important to note that before the
release of the said album, BMG requested me to change the
title of the song “So, If” to “If”. The said song became the
carrier single of the album. “If” instantly became a hit not
only in the Philippines but in other countries in the Asian
region. Attached as Annex “C” is a copy of the Songwriter’s
Agreement I executed with BMG. Also attached as Annex
“D” is the album cover of “Faithfully Nelson Del Castillo

xxx

Sometime in the latter part of 2007, I received through

a friend a copy of the 19 November 2007 issue of the
Philippine Daily Inquirer. In the Entertainment Section of
said publication, entertainment writer Dolly Anne Carvajal
wrote in her column “Dollywood” that she received an e-
mail from a reader living in Austin, Texas named Irene
Rose. Said e-mail asked Ms. Carvajal to check out the title
track (track seven) of Brickman’s CD titled “Hope”.
According to Irene Rose, track seven of said CD sounded
very much like my composition “If”. Ms. Carvajal also stated
that in her column that when she listened to the song also
titled “Hope”, she agreed with the observation made by the
e-mail sender x x x.

I immediately checked out the website given by Irene

Rose in the column of Ms. Carvajal to confirm their
observation. I listened to Brickman’s song titled “Hope” was
shocked with what I heard –the song Hope was exactly of
the same piano version of my song titled “If” that
Brickman recorder in 1995 and contained in his album
by “Heart”.

2
 x x x After some time, I eventually got hold of copies of
the “Hope” CD which were apparently being sold across the
united States and on e-bay (an on-line store)x x x.

xxx

On 13 December 2007, I met some Sony-BMG

executives and asked them if they gave permission to
Brickman to use and change the title of my song “If” for his
latest CD. The Sony-BMG executives denied any
knowledge of Brickman’s acts.”

3. The instant complaint was raffled to Honorable Investigating

Prosecutor Marlo Campanilla of the City of Manila. Respondent Brickman was
given until 06 January 2010 within which to file his Counter-Affidavit.

4. In the 06 January 2010 hearing, Respondent Brickman, filed

before this Honorable Office his Counter-Affidavit to rebut the allegations that
he committed the crime of Copyright Infringement. In said Counter-Affidavit,
Respondent Brickman admitted that he used the song “If” of Complainant
without the permission of the latter, however he imputed such act to an
“honest mistake. Respondent Brickman also questioned the jurisdiction of this
Honorable Office over the instant case. In the said hearing, Complainant was
given until 27 January 2010 within which to submit his Reply-Affidavit.
Likewise, since Respondent Brickman’s defenses are basically legal in nature,
Complainant was also directed to submit on the same given date, the
appropriate pleading in response to said legal issues, which is a Memorandum.

5. In the 27 January 2010 hearing, Complainant filed his Reply-

Affidavit and at the same time, a Memorandum in order to discuss the legal
bases of the Complaint. It was emphasized both by the Reply-Affidavit and
Memorandum that there was indeed a copyright infringement committed by
Respondent Brickman regardless of the allegation of the same that it was done
in good faith. Further, it was established that the Philippine courts, including
this Honorable Office has jurisdiction over the instant case.

6. In the same hearing, this Honorable Office set the next Preliminary
Investigation on 03 March 2010 and ordered Respondent Brickman to submit
his Memorandum.

7. On 03 March 2010, Respondent Brickman, during the Preliminary

Investigation submitted his Memorandum dated 26 February 2010. This
Memorandum of Respondent Brickman was mere reiteration of his defenses
raised in his Counter-Affidavit such as: (a) his inclusion of Complainant’s song

3
in his 2007 “HOPE” CD was an “honest mistake”; (b) this Honorable Office as
well as the Philippine Courts have no jurisdiction over the copyright
infringement committed and (c) Intellectual Property Code of the Philippines is
mala in se, hence he can invoke his “good faith” as a proper defense.

8. Thereafter, in the 17 March 2010, hearing Complainant submitted

a Comment to Respondent Brickman’s Memorandum dated 26 February 2010.
In the said Comment, Complainant presented legal bases that the defenses
raised by Respondent Brickman are bereft of merit. Complainant explained
that the defense of “good faith” on the part of Respondent Brickman cannot be
given credence as shown by his acts. Moreover, it was made clear in the same
Comment that Intellectual Property Code of the Philippines as unequivocally
intended by its framers is “malum prohibitum”. Lastly, Complainant was also
able to show that this Honorable Office and the Philippine Courts have
jurisdiction over the instant case.

9. After, all the pleadings of both parties were submitted, on 03 April

2010, this Honorable Office ordered that the arguments set forth in the various
pleadings be filed before this Honorable Office in a final Memorandum.

10. Both parties were then given by the Honorable Investigating

Prosecutor until 28 April 2010 within which to submit their respective
Memoranda.

11. Hence, this Memorandum.

ISSUE

WHETHER OR NOT THERE IS PROBABLE CAUSE

TO HOLD RESPONDENT LIABLE FOR THE CRIME
OF COPYRIGHT INFRINGEMENT, PUNISHABLE
UNDER SECTION 193, IN RELATION TO SECTION
217 OF REPUBLIC ACT NO. 8293, OTHERWISE
KNOWN AS THE INTELLECTUAL PROPERTY CODE
OF THE PHILIPPINES.

ARGUMENTS

12. Complainant most respectfully submits that there is probable

cause to hold Respondent Brickman liable for the crime of Copyright
Infringement for the following reasons:

4
 (a) The Complainant-Affidavit clearly
showed that Respondent committed the
crime of Copyright Infringement, in violation
of Section 193, in relation to Section 217 of
Republic Act No. 8293, otherwise known as
the Intellectual Property Code of the
Philippines.

(b) The defense of “good faith” of

Respondent Brickman cannot be appreciated
in his favor because Intellectual Property
Code of the Philippines is malum prohibitum
and all his acts run contrary to his defense of
“good faith”.

(c) Philippine Courts or the Department of

Justice have jurisdiction over the crime of
Copyright Infringement committed by
Respondent Brickman.

(d) Copyright Infringement is malum

prohibitum, not mala in se, therefore good
faith is not a defense.

DISCUSSION

A. THE COMPLAINT-AFFIDAVIT OF
COMPLAINANT CLEARLY SHOWED
THAT RESPONDENT COMMITTED THE
CRIME OF COPYRIGHT
INFRINGEMENT, IN VIOLATION OF
SECTION 193, IN RELATION TO
SECTION 217 OF REPUBLIC ACT NO.
8293, OTHERWISE KNOWN AS THE
INTELLECTUAL PROPERTY CODE OF
THE PHILIPPINES.

13. In Respondent Brickman’s Counter-Affidavit dated 06 January

2010, he alleged that “xxx I respectfully submit that I have not committed a
violation of Section 193, in relation to Section 217 of the IP Code, or of any
provision of criminal law for that matter. I request that the Complaint against me
by DEL CASTILLO be dismissed for lack of merit.” 1
14. Respondent Brickman’s contention is without basis in fact and in
law.

15. Complainant most respectfully submits that Respondent Brickman

committed the crime of Copyright Infringement under Section 193, in relation
to Section 217 of Republic Act No. 8293, otherwise known as the “Intellectual
Property Code of the Philippines”:

1 Paragraph 48, Respondent Brickman’s Counter-Affidavit.

5
 “Sec. 193. Scope of Moral Rights. – The author of a work
shall independently of the economic rights in Section
177 or the grant of an assignment or license with
respect to such right, have the right:

193.1. To require that the authorship of the works be

attributed to him, in particular, the right that his name,
as far as practicable, be indicated in a prominent way on
the copies, and in connection with the public use of his
work;

Sec 217. Criminal Penalties-217.1 Any person infringing

any right secured by provisions of Part IV of this act or
aiding or abetting such infringement shall be guilty of crime
punishable by:

(a) Imprisonment of one (1) year to three (3)

years plus a fine ranging from Fifty Thousand
Pesos (P50,000) to One Hundred Fifty
Thousand Pesos (P150,000) for the first
offense.

(b) Imprisonment of three (3) years and one

(1) day o six (6) years plus a fine ranging from
One Hundred Fifty Thousand Pesos
(P150,000) to Five Hundred Thousand Pesos
(P500,000) for the second offense.

(c) Imprisonment of six (6) years and one (1)

day to nine (9) years plus a fine ranging from
Five Hundred Thousand Pesos (P500,000) to
One Million Five Hundred Thousand Pesos
(P1,500,000) for the third and subsequent
offenses.

(d) In all cases, subsidiary imprisonment in

cases of insolvency (emphasis and
underscoring supplied).

16. It is also apparent that there is probable cause to find that

Respondent Brickman committed the crime of Copyright Infringement2 which
has the following elements that can be deduced from the above-quoted
provision:
(a) There must be a copyright vested in favor of the creator
of a work/composition;
(b) That the work has been copied, without the authorship
attributed to the composer ;
(c) That the said infringement caused damage to the
composer;

2
There is copyright infringement when there is piracy or substantial reproduction. If so much is taken that the
value of the original work is substantially diminished or the labors of the original work is substantially diminished
or the labors of the original author are substantially and to an injurious extent appropriated by another. (Habana
vs. Robles, G.R. No. 31522, July 19,1999.)

6
 17. In the instant case, all the elements of Copyright Infringement are
present showing that there was indeed a violation of the rights of Complainant.

There must be a copyright vested

in favor of the creator of a
work/composition.

18. It is a fundamental principle that copyright for a work is acquired

by the intellectual creator from the moment of creation even in the absence of
registration and deposit.3 Copyright over literary and artistic works which are
original intellectual creations in the literary and artistic domain are protected
from the moment of creation.4 The fact and the moment he created the song,
the rights conferred by Republic Act No. 8293 already subsists. This,
Complainant’s ownership and creation was clearly established in his
Complaint-Affidavit:

“I am a self-taught musician/composer/singer formerly

based in my home province of Iloilo. Sometime in 1992, I
recorded the song titled “So, If”. The said song, along with
nine (9) other original compositions were included in the
album, “Faithfully, Nelson Del Castillo”, released under
Silver String Productions in Iloilo City.

xxx

On 27 May 1993, I filed an application for the

registration of the copyright of the song, “So, If” with the
National Library in Manila.

Acting on said application, the National Library issued a

Certificate of Copyright Registration dated 18 June 1999,
attesting to my ownership of the copyright over the above-
mentioned song. Attached as Annex “A” is a copy of the
Certificate of Copyright Registration, dated 18 June 1993,
issued by the National Library.”

19. Based from the above-quoted Sworn Statement of Complainant, it

can be said that Complainant has a copyright on his song “If” that even subsist
from the time it was created and was even strengthened when he had
registered its copyright before the National Library. In fact, the Copyright of
Complainant in the song “If” was never denied by Respondent Brickman. All of
the pleadings submitted by Respondent Brickman would show that he never
contested the authorship of the song “If” to Complainant Brickman.

3 Columbia Pictures, Inc. vs Court of Appeals, 261 SCRA 144.

4 Sundiang and Aquino, “Reviewer on Commercial Law” 2009 ed.

7
 20. Thus, it is respectfully submitted that Complainant satisfied the
first element in the crime of copyright infringement, which is that the“copyright
vested in favor of the creator of a work/composition.”

The work has been copied, and/or

made of public use without the
authorship attributed to the
composer

21. Secondly, it is not disputed that the song “If” of Complainant was
copied and was used by Respondent Brickman in his album “Hope CD”.
Moreover, Respondent Brickman even stated in said album therein that all the
songs were all his original composition. To make it even worse, Respondent
Brickman even changed the title of the said song to “Hope” in order to
camouflage his illegal act.

22. In Habana vs. Robles,5 the Supreme Court held that there is
copyright infringement when there is piracy or substantial reproduction. If so
much is taken that the value of the original work is substantially diminished or
the labors of the original work is substantially diminished or the labors of the
original author are substantially and to an injurious extent appropriated by
another, there is Copyright Infringement.

23. In fact, Respondent Brickman, even admitted in his Counter-

Affidavit as well as with his successive pleadings that “the recording of ‘If’ was
included in his file names of ‘Ideas and Unused Song’ and allegedly mistakenly
used it in his “Hope” album.6 Similarly, in his letter dated 04 January 2009
which was attached as Annex “L” in Complainant’s Complaint-Affidavit,
Respondent Brickman, never denied that he identified and named the song “If”
of Complainant as “Hope” in the said “Hope” CD.7

24. In the instant case, Respondent Brickman, Universal and Compass

not only did not seek Complainant’s permission for the use of “If” in his 2007
“Hope” CD, the authorship of the said song was not attributed to him. Worse,
as can be gleaned from the album cover of the said CD Respondent Brickman
credited himself with the authorship of the said composition. Meanwhile, on
the part of Universal and Compass, they also distributed the 2007 “Hope” CD
of Respondent Brickman which contains the infringed song of Complainant
without his consent.

5G.R. No. 31522, July 19,1999.

6 See, paragraph 3 of Respondent’s Counter-Affidavit.
7 Paragraph 19, Complainant’s Complaint-Affidavit.

8
 25. Therefore, it is submitted that the copying of Complainant’s
composition was done without the authorship attributed to the composer.

The infringement caused damage

to the composer.

26. Thirdly, it cannot be denied that Complainant suffered damage as

copyright owner by reason of the infringement committed by Respondent
Brickman.

27. It is well settled that one is entitled to adequate compensation for

pecuniary loss suffered by him. The Supreme Court described this damage as
actual damage or compensatory damage where it simply make good or replace
the loss suffered caused by wrong. They proceed from a sense of natural
justice, and are designed to repair that of which one has been deprived by the
wrong of another.8

28. In the instant case, it cannot be denied that Complainant suffered

actual damage from the copyright infringement committed by Respondent
Brickman. It must be recalled the 2007 “Hope” CD was distributed and
continuously being sold. Last 24 October 2009, Complainant’s wife Lera Grace
Del Castillo was able to purchase from e-Bay the 2007 version of Brickman’s
“Hope” CD. The said CD was being sold at e-bay at $17.99.

29. Aside from e-bay, the songs from the 2007 “Hope” CD (including
“Hope”) are available for downloading by the general public in all parts of the
world, in websites such as www.mp3city.com and www.mp3shake.com, both
pay downloading sites, and in www.itrackmine.com and www.imeem.com.

30. Undeniably, Complainant, a composer/singer whose career evolved

in the sale of his compositions and albums is greatly affected by the inclusion
of his song “If” in Respondent Brickman’s 2007 “Hope” CD. This 2007 “Hope”
CD reaps not only the recognition but as well as the profits that rightfully
belongs to Complainant.

31. Further, Complainant also suffered moral damages from the

copyright infringement committed by Respondent Brickman. The shock that
Complainant felt when he heard the song “Hope” of Respondent Brickman

8 “Torts and Damages” by Timoteo Aquino, 2005, p. 849 citing Algarra vs Sandejas 27 Phil 284 and Reid vs
Terwilliger, 116 N.Y. 530;22 N.E., 1091.

9
which is exactly his song “If” 9. For any singer/composer like Complainant, the
greatest nightmare or fear is when his composition where he put all his hard
work, energy and creativity would be copied by another people and even claim
it as his.

32. When Complainant learned of this copyright infringement, he and

his wife spent most of their days and sleepless nights thinking how it all
happened and why it happened. Hence, moral damage must be awarded to
Complainant, in order to serve its purpose which is to enable the injured party
to obtain means, diversions or amusements that will serve to alleviate the
moral sufferings he has undergone10

33. Finally, Complainant also suffered the kind of exemplary damages.

34. It is worthy to note that the Intellectual Property Code of the

Philippines was enacted in order to provide protection to the creations and
ideas. It is respectfully submitted that in order to make the said purpose
effective, it is only right to provide exemplary or corrective damage. This is in
order to suppress this kind of wanton acts and to be an antidotes so that the
poison of wickedness may not run through the body politic, 11 this is in order to
prevent the copyright infringement of foreigners like Respondent Brickman who
thinks that they can easily play with our laws and our composers.

35. Therefore, without a doubt, the infringement committed by

Respondent Brickman caused damages to Complainant.

B. THE DEFENSE OF “GOOD FAITH” OF

RESPONDENT BRICKMAN CANNOT BE
APPRECIATED IN HIS FAVOR BECAUSE
INTELLECTUAL PROPERTY CODE OF
THE PHILIPPINES IS MALUM
PROHIBITUM AND ALL HIS ACTS RUN
CONTRARY TO HIS DEFENSE OF
“GOOD FAITH”.

Respondent Brickman committed

acts that would show his bad
faith.

36. Respondent Brickman heavily relied in his defense of “good faith”.

This defense of Respondent Brickman is based on his premise that violation of

9 See paragraph 15 of Complainant’s Complaint-Affidavit.

10
Kierulf vs CA, 269 SCRA 433 (1997).
11
“Torts and Damages” by Timoteo Aquino, 2005, p. 919.

10
Intellectual Property Code is mala in se. It is the humble submission of the
Complainant that such defense is palpably erroneous.

37. Good faith is not a defense in special laws, like Intellectual

Property Code of the Philippines which are considered mala prohibita. When a
crime is punished by a special law, as a rule, intent to commit the crime is not
necessary, it is sufficient that the offender has the intent to perpetrate the act
prohibited by the special law.12

38. Moreover, assuming arguendo that Intellectual Property Code is

considered as malum prohibitum, Respondent Brickman’s acts would clearly
show that his defense of good faith is untenable.

39. First, according to Respondent Brickman, he has established

good faith when he stated in his Counter-Affidavit “that the inclusion of the
song ‘If’ in his 2007 ‘Hope’ CD was an ‘honest mistake.’ According to him, an
employee in charge of his catalogue mistakenly included the song ‘If’ in his file
of ‘ideas and unused song’ and labeled it as his original music. Thereafter,
when he was recording the 2007 ‘Hope’ album, he mistakenly used the said file
and picked the song ‘If’ and was not able to remember that the same was also
include in his ‘By Heart’ album in the Philippines in 1995.

40. However, Respondent Brickman cannot claim that the

unauthorized use and assumption of authorship for the song was an honest
mistake on his part because he knew from the very start that the song was not
his composition. It must be recalled that the piano version of “If” was already
used by Respondent Brickman for his “By Heart” album, which was released in
1995, with the permission of Complainant. Clearly, having previously recorded
such song, Respondent Brickman cannot feign ignorance, moreso unfamiliarity
with Complainant’s song “If”.

41. Moreover, any composer or any artist would easily discern his
own work. It defies logic why someone, who has put all his time, effort and
especially his talent, will forget his work regardless of the years that have
passed. Simply put, an artist can easily identify his work even if you put it
together with other works. In fact, it is easier for an artist to identify what is
not his work even if it is mixed with his own work or creation. This is what
exactly happened in the instant case, hence, Respondent Brickman cannot

12 People vs. de Gracia, 233 SCRA 716 (1994).

11
blame it on a lapse of memory in failing to identify that the song “If” was not
his.

42. More importantly, Respondent Brickman cannot put the blame

on his employee for the inclusion of the song “If” in his 2007 “Hope” album. For
someone who sees himself as a “popular artist,” it borders on incredible. One
should expect that he exercises enough care and diligence in making sure that
what he represents to the people as his songs, are really his and not from
someone else.

43. This doubt on the story of Respondent Brickman is further

strengthened by his refusal to even identify the alleged employee. Hence, this
alleged employee of Respondent Brickman is a mere figment of his imagination
to accommodate his defense of alleged good faith.

44. Second, assuming arguendo that the song “If” of Complainant

was mixed in his file of “ideas and unused song” and labeled as his original
music, Respondent Brickman still failed to justify the change of the title from
“If” to “Hope”. It must be pointed out that if the song “If” was mixed in the said
file, the title of the song would still be “If.” If we follow Respondent Brickman’s
explanation, when he allegedly mistook the song “If” as his own song, then why
would he change the title of the song?

45. It is respectfully submitted that Respondent Brickman changed

the title of the song in order to camouflage his illegal act. Hence, no matter how
much Respondent Brickman tries to portray his act as an honest mistake,
there is no escaping the fact that he illegally and maliciously used
Complainant’s composition.

46. Third, the letter dated 25 February 2008, from Respondent

Brickman’s counsel Atty. Matson, indicating that they are open to a possible
amicable settlement and enclosed therewith is a check allegedly representing
the royalties due to him, is not sufficient to show that he was in good faith. On
the contrary, this act further shows Respondent Brickman’s bad faith because
he made the said offer after he already made the infringement and upon
discovery of the Complainant.

47. It must be emphasized that regardless how many times

Respondent Brickman offers such payment in his letter, it can no longer
change the fact that the damage has been done and that he has already used
and profited from Complainant’s song.

12
 48. However, Respondent Brickman still tried to justify such belated
offer by imputing act of Complainant in halting this good faith gesture of
Respondent Brickman when the latter allegedly played “hard to get” in refusing
such offer. Not satisfied with this, Respondent Brickman even further faulted
Complainant for asking Respondent Brickman to provide full accounting of the
sales of 2007 “Hope” CD.

49. Truth be told, it must be considered by this Honorable Office that

Complainant was not playing “hard to get.” Complainant is after all in a
position to deny such offer, since he was the one whose rights have been
transgressed.

50. In the same vein, Complainant can demand for full accounting of
the album because this will serve as the basis of computing the payment due
to any composer. To say the least, the U.S. Copyright law being invoked by
Respondent Brickman in his Comment as regards mechanical license even
requires that the statement of account where the royalties will be computed
should be certified by a certified public accountant. 13 And this rule is
applicable not only in computation of royalties but as well in any official
transaction involving financial statement or statement of account whether in
the U.S. or in the Philippines.

51. It is also worthy to note that it was not irregular for Complainant
to ask for full accounting of the sales of 2007 “Hope” CD because he did not
have any way of verifying if the said offer was the right amount. The refusal of
Respondent Brickman to provide full and proper accounting of the sales further
showed that he was not true to his offer and that there was no semblance of
honesty or good faith in the said act. Therefore, Complainant’s request for
proper accounting of the sales does not negate the fact that there was indeed
bad faith on the part of Respondent Brickman.

52. Fourth, Respondent Brickman’s act of pulling out the song of

Complainant in the 2007 “Hope” CD should not be interpreted as a sign of his
good faith. Rather, it should be construed as an admission that his
unauthorized use of the song “If” was a clear violation of the law. This bad faith

13 Sec 115 (K)(5) Royalty payments shall be made on or before the twentieth day of each month and shall include
all royalties for the month next preceding. Each monthly payment shall be made under oath and shall comply with
requirements that the Register of Copyrights shall prescribe by regulation. The Register shall also prescribe
regulations under which detailed cumulative annual statements of account, certified by a certified public
accountant, shall be filed for every compulsory license under this section. The regulations covering both the
monthly and the annual statements of account shall prescribe the form, content, and manner of certification with
respect.

13
is apparent specially when the “Hope” CD is still of the same packaging and
design, and of the same album title “Hope” but ironically it does not contain
any song entitled “Hope”.

53. Lastly, the fact that Respondent Brickman in his letter dated 04
January 2008 asked from BMG Records (Pilipinas) the issuance of mechanical
license for the 2007 Compass Production release of the song “If”, even made it
clear that there was no good faith on the part of Respondent Brickman’s
copyright infringement.

54. In the Counter-Affidavit and Memorandum of Respondent

Brickman dated 06 January 2010 and 26 February 2010 respectively,
Respondent Brickman alleged that it is customary in the United States to ask
for mechanical license even after the song was released, which necessarily
follows that even after the original song was copied and released without the
consent of the owner.

55. Complainant most respectfully submits that Respondent

Brickman’s contention is bereft of any merit.

56. It must be pointed out that a compulsory mechanical license is

permission to use someone's published song, which is the musical
composition. It includes the privilege of making a musical arrangement of the
work to the extent necessary to conform it to the style or manner of
interpretation of the performance involved, but the arrangement shall not
change the basic melody or fundamental character of the work, and shall not
be subject to protection as a derivative work under this title. 14

57. The U.S. Copyright Law provides for the procedure before one can
obtain compulsory mechanical license. An important requirement provided by
the said law is a notice to the owner of the work, to wit:

“Sec 115 (b) Notice of Intention to Obtain Compulsory

License.—

(1) Any person who wishes to obtain a compulsory

license under this section shall, before or within thirty
days after making, and before distributing any
phonorecords of the work, serve notice of intention to
do so on the copyright owner. If the registration or other
public records of the Copyright Office do not identify the
copyright owner and include an address at which notice
can be served, it shall be sufficient to file the notice of
intention in the Copyright Office. The notice shall comply,

14 U.S Code Title 17, Chapter 1, Section 115(a) (2).

14
 in form, content, and manner of service, with requirements
that the Register of Copyrights shall prescribe by
regulation. (emphasis and underscoring supplied)

58. A careful perusal of the above-quoted portion would reveal that

contrary to the claim of Respondent Brickman, the U.S. Copyright Law does not
allow the request of mechanical license after the distribution of the copied
song.

59. It bears stressing that although the United States has recognized
“compulsory mechanical license” by incorporating such provision in their
Copyright Law, nowhere can it be found that they allow the issuance of
compulsory mechanical license after the original work is copied. In fact, the
same provision considers such belated act as copyright infringement, thus:

(2) Failure to serve or file the notice required by clause (1)

forecloses the possibility of a compulsory license and, in the
absence of a negotiated license, renders the making and
distribution of phonorecords15 actionable as acts of
infringement under section 501 and fully subject to the
remedies provided by sections 502 through 506 and 509.” 16
(emphasis and underscoring supplied)

60. In the instant case, there is no doubt that when Respondent

Brickman sent the letter to Complainant, it was not made before or within
thirty days after making, and more importantly, it was not made before
distributing any phonorecords of the work. Hence, the Notice to Intention to
Obtain Compulsory License was belatedly made.

61. Similarly, it was also erroneous for Respondent Brickman to

claim that is was customary for him to request the mechanical license from
Complainant. It seems that Respondent Brickman has a different
understanding of the word “custom” which has a settled meaning in law.

62. It is well-settled that before acts can be considered as a custom,

it should be a result of a usage or a practice of the people, which by common
adoption and acquiescence, and by long and unvarying habit, has become
compulsory, and has acquired the force of a law with respect to the place or
subject matter to which it relates. 17 A custom must be proved as a fact

15
The statute defines phonorecords as “material objects in which sounds, other than those accompanying a
motion picture or other audiovisual work, are fixed.” ( www.copyright.gov/title17/92chap1.html#101.)
16
Sec 115 (b) of the U.S. Copyright Law.
17
Black’s Law Dictionary (4th ed) citing Adams vs. Insurance Co., 95 Pa 355, 40 Am Rep. 662.

15
according to the rules of evidence. 18 Hence, like any fact, habits, customs,
usage or patterns of conduct must be proved.19

63. In Respondent Brickman’s Memorandum, he simply alleged that

compulsory mechanical license has been a practice in the United States
without any sufficient factual basis to support his claim that it can be belatedly
requested. The truth is, there is an existing “compulsory mechanical license” in
the United States as provided by Section 115 of the U.S. Copyright Act. This
law provides a compulsory license to make and distribute phonorecords once a
phonorecord of a work has been distributed to the public in the United States
under authority of the copyright owner, subject to certain terms and conditions
of use.20 However nowhere can it be found that it is customary to request for a
mechanical license after distribution of a song without the consent of the
owner of said composition.

64. Truth be told, Respondent Brickman’s allegation that it is

customary in the United States for a compulsory mechanical license to be
issued after the respective date of release, is merely his own opinion, or more
appropriately, a mere figment of his imagination in his futile attempt to
exculpate himself from the charge leveled against him for copyright
infringement.

65. Even assuming arguendo that it is customary in the United

States for a mechanical license to be issued after the release of the copied
work, such will still have no application in the instant case because it is
contrary not only to the U.S Copyright Law [Sec 115(b)] 21 but specially to the
Intellectual Property Code of the Philippines which specifically prohibits the
copying of another person’s work without his/her permission.

66. In the Philippines, this jurisdiction has adopted the legal

provision that customs which are contrary to law, public order or public policy
shall not be countenanced.22 Customs cannot be given more weight than laws
that have been expressly enacted by our lawmakers. Thus, if a custom, may it
be a local custom or a foreign custom is contrary to a sound and establish law,
the said custom shall not be applied.

18 Article 12, Civil Code of the Philippines.

19 Pag-Asa Steel Works, Inc. vs Court of Appeals, 486 SCRA 475 (2006).
20 www.copyright.gov/title37/201/37cfr201-18.html
21 c i r c u l a r 9 2 “Copyright Law of the United States and Related Laws Contained in Tıtle 17 of the United States

Code” .
22 Article 11, Civil Code of the Philippines.

16
 67. In the case at bar, if we allow the claim of Respondent Brickman
that his act of asking a mechanical license after he already committed
infringement is a customary act in the U.S., it will run contrary to the very
right sought to be protected by the Intellectual Property Code. Foreign customs
should not be applied when its application would work undeniable injustice to
the citizens of the Philippines like herein Complainant.

68. All told, there is no truth to the claim of Respondent Brickman

that he committed an “honest mistake” when he committed the copyright
infringement. All his acts point out to the undeniable fact that he was well
aware that he was copying, using and distributing a composition of another
person without the latter’s consent.

C. PHILIPPINE COURTS OR THE

DEPARTMENT OF JUSTICE HAVE
JURISDICTION OVER THE CRIME OF
COPYRIGHT INFRINGEMENT
COMMITTED BY RESPONDENT
BRICKMAN.

69. Complainant most respectfully submits that the Philippine

Courts or the Department of Justice have jurisdiction over the crime of
copyright infringement committed by Respondent Brickman.

70. In Respondent Brickman’s Counter-Affidavit as well as

Memorandum, he was clearly convinced that the Intellectual Property Code of
the Philippines is governed by the territoriality principle and as an effect of
this, said law cannot be enforced on copyright infringement committed outside
the Philippines. Accordingly, since Respondent Brickman was not here in the
Philippines and the copyright infringement such as the copying of
Complainant’s song happened in the United States, the Philippine courts have
no jurisdiction.

71. It is apparent that Respondent Brickman is trying to deviate from

the issue by stating that since he produced, manufactured, distributed the said
album in the U.S. and did not employ any dealer or distributor in the
Philippines, he cannot be liable for infringement of copyright. However, this is
not a valid excuse.

72. This analysis is highly myopic and ignorant of the bigger picture.
It is evident that Respondent Brickman overlooked the very definition of
territorial jurisdiction and the elements of copyright infringement. Complainant

17
would like to carefully point out and emphasize that if we would analyze the
concept of territorial jurisdiction, Philippine courts (or the Department of
Justice) have the requisite authority to hear and try the case against
Respondent Brickman.

73. It is a fundamental principle that for jurisdiction to be acquired

by courts in criminal cases the offense should have been committed or any one
of its essential ingredients took place within the territorial jurisdiction of the
court. Territorial jurisdiction in criminal cases is the territory where the court
has jurisdiction to take cognizance or to try the offense allegedly committed by
the accused. Also, the jurisdiction of a court over the criminal case is
determined by the allegations in the complaint or information. And once it is
shown, the court may validly take cognizance of the case. 23

74. This has been reiterated in many cases decided by the Supreme
Court and in the case of Abalos vs People,24 it pronounced the elements before
court can acquire territorial jurisdiction:

“For jurisdiction to be acquired by a court in criminal

case, the offense should have been committed or any one of
its essential ingredients shall have taken place within the
territorial jurisdiction of court. Moreover, it is settled in
criminal actions that the place where the criminal offense
was committed not only determines the venue of the action
but is an essential element of jurisdiction.”

75. Clearly, before the Philippine court exercise its jurisdiction in the
instant case, what is only needed to show is that all or even one of the
essential ingredients of an offense was committed here in the Philippines. This
requisite has been clearly established in the instant case when the “Hope” CD
which has the infringed song “If” of Complainant was sold here in the
Philippines through the internet.

76. A careful scrutiny of the Intellectual Property Law would show

that it recognizes the Resale Rights of the owner of a work. This Resale Rights,
as part of the Moral Rights sought to be protected by the same law pertains to
the notion of droit de suite which allows the artist to participate in the proceeds
from the resale of the work. 25 Consequently, it grants inalienable right to an
interest in any sale of the work subsequent to the first transfer of the photo.

23
Oscar Herrera, “Revised Rules of Criminal Procedure”, Volume IV, 2001 edition, p 11.
citing Uy vs CA, G.R No. 119000, 85 SCAD 166. July 28, 1997.
24 Abalos vs People, 389 SCRA 141, September 17,2002.
25
Aquino “Intellectual Property Law, “2006, p.94.

18
 77. From the foregoing, the fact that the same law recognizes and
protects such right, a violation of it, gives rise to a cause of action to file a
complaint of copyright infringement. Simply put, the violation of the Resale
rights which in the instant case was committed by Respondent Brickman when
he sold the 2007“Hope” CD in the Philippines, constitutes a copyright
infringement and since the sale was committed here in the Philippines, it is
sufficient enough to vest the jurisdiction to the Philippine courts.

78. On another note, it is worthy to consider that the selling of the

“Hope” CD in the internet does not negate the claim that it is considered sold
here in the Philippines when a buyer residing here in the Philippines was able
to purchase it through the internet.

79. The defense of Respondent Brickman that he did not purposely

seek the Philippines as a market for his album because he did not distribute it
in the Philippines does not hold water. Respondent Brickman has been in the
industry for so many years and claiming to have been known internationally, it
is highly impossible he did not foresee that the song will be produced and
spread around the globe including the Philippines in different ways or modes
such as the internet. It must be emphasized that the proliferation of the album
in the internet was caused by his production of the 2007 “Hope” CD, which, in
turn, contained Complainant’s song “If.

80. After having established that the Philippine Court has territorial
jurisdiction to the copyright infringement committed by Respondent Brickman,
it is also respectfully submitted that Respondent Brickman cannot even escape
the liability even if we apply extraterritorial jurisdiction.

81. Even assuming arguendo that the sale of the infringed work was
not distributed here in the Philippines because allegedly Respondent Brickman
has no agent here in the Philippines, the Philippine courts will still have
jurisdiction because the buyer was within Philippine territory and the creator
of the composition is a Filipino whose rights were violated by the illegal acts of
Private Respondent.

82. A case worthy to consider is Litecubes, LLC v. Northern Light

Products, Inc.26. In the said case, Petitioner (Litecubes LLC ) sued Respondent
(Northern Light Products, Inc., doing business as GlowProducts) for
infringement of U.S. Patent No. 6,416,198 and infringement of a registered

26 No. 2006-1646 (Fed. Cir. April 28, 2008)

19
copyright on the Litecube. Respondent therein is a Canadian corporation
operating from its offices in Victoria, British Columbia, nevertheless according
to the Petitioner, the said Respondent was able to sell the infringed products to
the customers in the United States. On the part of Respondent, they raised the
issue of jurisdiction and alleged that they never set foot in the United States
and they were only made to sell the infringed product in the United States
through Free on Board (FOB) where allegedly the ownership of the product is
transferred to buyer in Canada, even before the product was brought to the
United States.

83. According to the Supreme Court, although the Respondent

therein claimed the United States court has no jurisdiction because
Respondent therein never went to the United States and the sake was only
made through Free on Board, the Supreme Court therein recognized that the
said sale is an act of infringement and the country where the buyer resides has
the jurisdiction to hear try the case for copyright infringement. Said the
Supreme Court:

“It is uncontested that GlowProducts sold and

shipped the allegedly infringing products directly to
customers located in the United States.
GlowProducts based its arguments that these were
not sales in the United States on the grounds that
the products were shipped f.o.b., and thus title over
the goods were transferred while the goods were still
in Canada. Case law is inconsistent with such a
theory.

To the contrary, in North American Philips

Corp. v. American Vending Sales, Inc., which included
a similar situation, the Federal Circuit found that the
sale also occurred in the location of the buyer.
Interestingly, North American Philips dealt with
personal jurisdiction. However, the Federal Circuit
found no basis for construing the location of a
“sale” differently for purposes of establishing an
element of infringement. Thus, since
GlowProducts’ American customers were in the
United States, there was substantial evidence to
support the jury’s conclusion that GlowProducts sold
the accused “cubes” within the United States.
(underscoring and emphasis supplied)”

84. In view of the foregoing, Respondent Brickman cannot claim that

Philippine courts have no jurisdiction over the copyright infringement that he
committed. The fact that the sale was made through the internet does not
negate the reality that the buyer is here in the Philippines, which calls for the
exercise of jurisdiction of Philippine courts.

20
 85. The fact that the abovementioned case refers to civil cases on
copyright infringement cannot be used by Respondent Brickman against
Complainant. It is respectfully submitted, that if a civil case defends the
intellectual property rights of the creator is regardless where the copyright
infringement was committed, then the more it should be applied criminal cases
of copyright infringement for the reason that criminal case is a crime against
the State.

86. Succinctly put, allowing such contentions of Respondent

Brickman would render nugatory not only the rights being protected by the
Intellectual Property Code, but as well as the sovereignty of the State, for after
all, a criminal case of copyright infringement is an offense against the State.

87. More importantly, with the advent of modern technology, it has

become harder to contain works and composition within national border. The
advancement of networking and communications technology allows for the
rapid dissemination of information across countries’ borders. As a result
thereof, a circumstance where a law of one’s country can reach the territory of
another arises. Otherwise, violators that commit copyright infringement would
just be able to escape liability in other jurisdiction and still reap the rewards of
Plaintiff’s market.

88. In view of the foregoing, it cannot be denied that the Philippine

Courts or the Department of Justice have territorial jurisdiction over the
instant case and in fact even extraterritorial jurisdiction.

D. COPYRIGHT INFRINGEMENT IS
MALUM PROHIBITUM, NOT MALA IN SE,
THEREFORE GOOD FAITH IS NOT A
DEFENSE.

89. It may be recalled that in the Counter-Affidavit and Memorandum

of Respondent Brickman, he attempted to steer the law in his favor by claiming
that Intellectual Property Code is mala in se. Such said contention is palpably
erroneous.

90. Initially, Respondent Brickman speciously argued that the

Intellectual Property Code is malum in se because it provided for a classification
of penalties under Section 217 of the Intellectual Property Code as “first
offense”, “second offense” or “third offense”. However, a careful reading of the
said provision does not even suggest the element of intention or willfulness as
what Respondent is claiming.

21
 91. Respondent Brickman’s attention is invited to Section 217.2 of
the same Code wherein it provides the basis for the determination on the
number of years of imprisonment and amount of fine, to wit:

“217. 2. In determining the number of years of

imprisonment and the amount of fine, the court
shall consider the value of the infringing
materials that the defendant has produced or
manufactured and the damage that the copyright
owner has suffered by reason of the infringement.
(emphasis and underscoring supplied)”

92. From the above cited provision, it is very clear that the bases for
the imposition of the number of years of imprisonment and amount of fine are
only the following: (1) the value of the infringing materials that the defendant
has produced or manufactured and (2) the damage that the copyright owner
has suffered by reason of the infringement and nothing more. Nowhere in
Section 217 is mentioned that degree of willfulness or criminal intent of
copyright infringement is taken into consideration in the imposition of criminal
penalties under the said Code.

93. It must also be emphasized that the presence of “first-time

offense” or “offender” does not automatically qualify or make a special law mala
in se. The truth is that there are other special laws that provide classification of
penalties. Yet, it is readily accepted that mere commission of the act makes the
offender liable. For instance is the Comprehensive Dangerous Drugs Act or R.A.
No. 9165 which also provides classification of penalties to wit:

“Sec. 15. Use of Dangerous Drugs- a person apprehended

or arrested, who is positive for use of any dangerous drug,
after confirmatory test, shall be imposed a penalty of a
minimum of six (6) months rehabilitation in government
center for the first offense, subject to the provisions of
Article VIII of this Act. If apprehended using any dangerous
drug for the second time, he/ she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day to
twelve (12) years and a fine ranging from Fifty thousand
pesos (P50,000.00) to Two Hundred thousand Pesos
(P200,000.00): Provided, that this section xxxxxx.”
(underscoring supplied)

94. In the Comprehensive Dangerous Drugs Act, it classified and

separated the penalty or treatment of first time offender or those who are
apprehended for the first time in using illegal drugs from those who are
apprehended for the second time in using illegal drugs. However, the
classification of penalty here does not change the fact that mere use of

22
prohibited drugs is one being punished.27 The same principle applies to works
that have been infringed, that the mere reproduction of another person’s work
will constitute copyright infringement regardless of the intention.

95. Thus, from the foregoing, there is no reason in law and in

jurisprudence to classify the Intellectual Property Code as malum prohibitum.

96. Respondent Brickman was not still contented and even

erroneously raised a point that copyright infringement is essentially THEFT of
intellectual property rights. As such, it is a mere modification of the offense so
defined in the Revised Penal Code which is itself mala in se. Therefore, like
theft, for copyright infringement to be committed, there must be evil intent, or
it must be willful.”

97. Respondent Brickman in order to support this claim cited the

case of People vs. Sunico, CA 50 OG 5880. It alleged that “paraphrasing the
said case, theft of intellectual property is not only wrong because it is
prohibited; it is wrong per se because it deprives the victim of the fruits of his
labor. Hence, to be punishable, it must be shown that the theft was committed
willfully.”

98. Respondent Brickman’s contention is untenable.

99. A reading of the whole text of People vs. Sunico would reveal that
there was never a mention that copyright infringement is essentially theft of
intellectual property. The case is about the omission or failure of the election
inspectors and poll clerks to include a voter’s name in the registry list of voters
and thus was prosecuted for violation of Sections 101 and 103 of the Revised
Election Code. The accused in the said case claimed that they made the
omission in good faith and hence they cannot be made liable for the charge
against them. In affirming the accused, the Supreme Court ruled that the
omission or failure to include a voter’s name in the registry list of voters is not
only wrong because it is prohibited; it is wrong per se because it
disenfranchises a voter and violates one of his fundamental rights. Hence, for
such act to be punishable, it must be shown that it has been committed with
malice.

100. Undeniably, copyright infringement can not be likened to theft as

the felony of theft defined and penalized under Article 306 and 307 of the
Revised Penal Code consists of elements different and distinct from copyright

27 Luis B. Reyes, The Revised Penal Code, 2008. p 14.

23
infringement. Theft is committed by any person, who with intent to gain, but
without violence against or intimidation or persons nor force upon things, shall
take personal property of another without the latter’s consent. On the other
hand, there is copyright infringement, if so much is taken that the value of the
original work is substantially diminished, or the labors of the original author
are substantially and to an injurious extent appropriated by another.28 It is not
the copying per se that is prohibited but the injurious effect it has on the
author of the copied work.

101. It bears stressing that theft requires taking of personal property

while in copyright infringement, what is being infringed are the economic and
moral rights of the copyright owner, which can hardly be classified as personal
property. Thus, copyright infringement cannot be a mere modification of the
felony of theft under the Revised Penal Code as the two crimes require
commission of different elements for one to be liable.

102. From this, it is thus undisputed that the analogy presented by

Respondent Brickman between theft and copyright infringement is clearly
flawed. It is therefore clear that copyright infringement is malum prohibitum. As
such, intent is immaterial as long as the act prohibited by the Intellectual
Property Code was committed by the infringer.

103. The Supreme Court in the case of Loney vs. People29 elucidated
on this matter, thus:

“when in offenses considered mala prohibita or

when the act is prohibited by a special law, the
commission of the prohibited act itself is a crime.
What makes the mala in se a felony is thecriminal
intent (dolo) or negligence (culpa) while what makes
the mala prohibita a crime are the special laws
enacting them.” (emphasis and underscoring
supplied)

104. In People vs. De Gracia, the Highest Court held that in cases of
special laws that are mala prohibita, intent is not an element but rather the
violation of the provision of the law:

105. It is submitted that nowhere does the law make “intent to

infringe” an element of infringement, and so whatever may have been the
reason, or no matter the lack of intention to infringe, the court may find that

28 Habana vs Robles, G. R. No. 131522, July 19, 1999.

29 482 SCRA 194 (2006).

24
there has been copying or appropriation and consequently find that there was
infringement that is actionable.30

106. It is beyond cavil that the acts of infringement under the

Intellectual Property Code are mala prohibita and hence, the intent of the
infringer is immaterial. The Supreme Court in the recent case of Roma Drug
and Romeo Rodriguez vs. RTC Guagua, BFAD and Glaxosmith 31 stressed the
fact that an intellectual property law like the “Special Law on Counterfeit
Drugs (SLCD)”32 is not concerned whether the importers of such drugs,
were motivated to do so out of altruism or basic human love, with the
malevolents who would alter or counterfeit pharmaceutical drugs for
reasons of profit at the expense of public safety. (emphasis and
underscoring supplied)

107. Prescinding from the said ruling, it maybe inferred that intent is
not material as long as the very act prohibited by the SLCD was committed by
the defendant. It must be pointed out that the SLCD is a special law on
intellectual property protection and it was treated by no less than the Supreme
Court as malum prohibitum where intent to commit the crime is immaterial and
where good faith of the defendant is of no moment.

108. The opinion of Father Ranhilio C. Aquino33,that copyright

infringement is not malum prohibitum because it would result to criminalization
of what essentially we cannot control cannot be appreciated in Respondent
Brickman’s favor.

109. As extensively discussed above, copyright infringement is malum

prohibitum. Moreover, the view of Father Aquino remains an opinion and does
not form part of the law. As such, this Honorable Office is not bound by the
said opinion.

110. Hence, undoubtedly the Intellectual Property Code of the

Philippines is malum prohibitum, to which Respondent Brickman cannot use
“good faith” as a defense. The fact that Respondent Brickman copied, used, and
claimed as his own the song “If” is sufficient to constitute copyright
infringement regardless of the intention of the infringer.

30 1 Rosenberg, s. 5.04 [1]).

31 G.R. No. 149907, April 16, 2009.
32 R. A. No. 8203.
33 Author of Intellectual Property Law, Comment and Annotations. 2006 ed.

25
 111. In view of all the foregoing, it is respectfully submitted that there
is probable cause to hold Respondent Brickman liable for copyright
infringement, in violation Section 193 in relation to Section 217 of R.A. 8293 or
the Intellectual Property Code of the Philippines.

PRAYER

WHEREFORE, premises considered, Complainant most respectfully

prays of this Honorable Office that this Memorandum be DULY NOTED and BE
MADE PART OF THE RECORDS OF THE CASE and that a Resolution be
ISSUED finding probable cause to hold Respondent liable for the crime of
Copyright Infringement punishable under Section 193 in relation to Section
217 under the Intellectual Property Code of the Philippines or R. A. No.8293.

Other reliefs, just and equitable under the circumstances, are likewise
prayed for.

RESPECTFULLY SUBMITTED.

Pasig City for the City of Manila, 28 April 2010.

SORIANO VELEZ & PARTNERS LAW OFFICES

Counsel for Complainant
Unit 1702, 17th Floor, Centerpoint Building
Dona Julia Vargas Ave., corner Garnet Road
Ortigas Center, Pasig City
Telephone nos.: (02)9144985 or (02)6367096
Email add: svp_law@yahoo.com

For the firm:

ELPIDIO G. SORIANO III

Roll of Attorneys No. 38814
IBP No. 02910/Lifetime/Q.C.
PTR No. 5916599/01-08-10/Pasig City
MCLE Compliance II-No. 2565, June 28, 2007

RHEA R. JULIAN
Roll of Attorneys No. 47260
IBP No. 810347/1-08-10/Q.C.
PTR No. 5917301/1-08-10/Pasig City
MCLE Compliance II-No. 3115, June 28, 2007

26
 SHERWIN V. REYES
Roll of Attorneys No. 52509
IBP No. 810346/1-08-10/Q.C.
PTR No. 5917303/1-08-10/Pasig City
MCLE Compliance II-No. 3120, June 28, 2007

FELIX JASPER DC. TUMANENG

Roll of Attorneys No. 54819
IBP No. 810344/1-08-10/Q.C.
PTR No. 5917302/1-08-10/Pasig City
MCLE Compliance: N/A, Admitted to Bar 2008

CERTIFICATION

The foregoing Memorandum was filed personally before this Honorable

Office and served personally to Respondent.

FELIX JASPER DC. TUMANENG

Copy furnished:
ATTY. NUMERIANO F. RODRIGUEZ
Counsel for Respondent Brickman
33 Dapitan Bay Drive, South Bay
Parañaque City, Philippines

27