Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`LATIN AMERICAN MUSIC CO. INC., et
`al.,
`
`
`Plaintiffs,
`v.
`MEDIA POWER GROUP, INC, et al.,
` Defendants.
`
`Civil No. 07-2254(ADC)
`
`
`OPINION AND ORDER
`Plaintiffs, Latin American Music Co., Inc. (“LAMCO”) and ACEMLA de Puerto Rico,
`Inc. (“ACEMLA”)(collectively, “plaintiffs”), filed a complaint against Media Power Group,
`Inc., and Eduardo R. Albino (collectively, “defendants”) seeking money damages for
`violations of the Copyright Act of the United States, 17 U.S.C. § 101, et seq.. ECF No. 4.
`On October 21, 2009, both plaintiffs and defendants filed cross-motions for summary
`judgment. ECF Nos. 53, 54. Each party timely opposed and replied. ECF Nos. 71, 73, 78, 79.
`All non-dispositive motions and pending dispositive motions were referred to Magistrate-
`Judge Bruce J. McGiverin (“Magistrate-Judge”) for report and recommendation (“R&R”). ECF
`No. 107. On September 10, 2010, the Magistrate-Judge issued a R&R. ECF No. 113. Now
`pending before the court is the R&R, issued on September 10, 2010, which recommended that
`plaintiffs’ and defendants’ motion for summary judgment both be granted in part and denied
`in part. ECF No. 113 at 1. Also before the court are plaintiffs’ and defendants’ objections to
`the R&R. ECF No. 117, ECF No. 119.
`I.
`Factual Overview
`Inasmuch as neither party has made a specific objection to the Magistrate-Judge’s
`recitation of the factual background, the court hereby adopts the same. To the extent either
`party’s objections implicate factual findings of the Magistrate-Judge, the court will address
`such objections separately.
`
`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 2 of 16
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`Civil No. 07-2254 (ADC)
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`Page 2
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`II.
`
`Standard of Review for Objections to a Report and Recommendation
`A district court may refer pending motions to a magistrate-judge for a report and
`recommendation. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b); L. Cv. R. 72(a). Any party
`adversely affected by the recommendation issued may file written objections within fourteen
`(14) days of being served with the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R.
`Civ. P. 72(b); L. Civ. R. 72(d). A party that files a timely objection is entitled to a de novo
`determination of “those portions of the report or specified proposed findings or
`recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F. Supp.
`2d 189, 191-92 (D.P.R. 2005) (citing United States v. Raddatz, 447 U.S. 667, 673 (1980)). The
`objections must specifically identify those findings or recommendations to which objections
`are being made. “The district court need not consider frivolous, conclusive, or general
`objections.” Rivera-García v. United States, Civ. No. 06-1004 (PG), 2008 WL 3287236, *1 (D.P.R.
`Aug. 7, 2008) (citing Battle v. U.S. Parole Comm'n, 834 F.2d 419 (5th Cir. 1987)). Moreover, to
`the extent the objections amount to no more than general or conclusory objections, without
`specifying to which issues in the report objection is made, or where the objections are
`repetitive of the arguments already made to the magistrate-judge, a de novo review is
`unwarranted. Id. “Instead, the report and recommendation is reviewed by the district judge
`for clear error.” Id. (citing Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.
`Supp. 380, 382 (W.D.N.Y. 1992) (“It is improper for an objecting party to . . . submit[ ] papers
`to a district court which are nothing more than a rehashing of the same arguments and
`positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are
`not to be afforded a ‘second bite at the apple’ when they file objections to a R & R.”)).
`In conducting its review, the court is free to “accept, reject, or modify, in whole or in
`part, the findings or recommendations made by the magistrate-judge.” 28 U.S.C. § 636
`(a)(b)(1); see also Templeman v. Cris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985); Alamo-Rodríguez
`v. Pfizer Pharma., Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003). Hence, the court may accept
`those parts of the report and recommendation to which the plaintiff does not object. See
`Hernández-Mejías v. General Elec., 428 F. Supp. 2d 4, 6 (D.P.R. 2005) (citing Lacedra v. Donald W.
`
`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 3 of 16
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`Civil No. 07-2254 (ADC)
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`Page 3
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`Wyatt Det. Facility, 334 F. Supp. 2d 114, 125-26 (D.R.I. 2004)).
`III.
`Analysis
`The present case involves the alleged infringement of twenty-one different
`compositions. Given the complexity of the issues raised and discussed within the R&R, the
`court addresses each of the Magistrate-Judge’s findings and the parties’ objections thereto
`separately.
`A.
`
`Copyright Registration: “Secreto,” “Tres Recuerdos,” “Amor en Tus Ojos,”
`and “Jíbaro”
`The Magistrate-Judge recommended that plaintiffs’ motion for summary judgment be
`denied as to the works “Secreto,” “Tres Recuerdos,” “Amor en Tus Ojos,” and “Jíbaro” in that
`plaintiffs failed to submit certificates of registration as required under 17 U.S.C. § 411(a). ECF
`1
`No. 113 at 9-17. While Plaintiffs do not object to the Magistrate-Judge’s discussion of the law,
`they object to the recommendation, arguing that the Magistrate-Judge was mistaken in finding
`that the registration requirement had not been met. ECF No. 113 at 9-17. Defendants do not
`object to the recommendation. 2
`With regards to “Secreto,” plaintiffs seem to be arguing that they have complied with
`the certificate of registration requirement in that the reference to “Viejo Secreto” in a 2003
`
`1
`The Magistrate-Judge’s R&R also recommends that defendants’ motion for summary judgment be
`granted as to these four works. Defendants ’request for summary judgment on these grounds, while alluded
`to in their opening motion, is advanced in more detail in their reply to plaintiffs’ opposition. ECF No. 79 at
`10-17. While generally a party seeking summary judgment may not add new facts or legal arguments in a
`reply, the courts have consistently required some affirmative action from the aggrieved non-movant to bar
`st
`consideration, i.e., a motion to strike. Desrosiers v. Hartford Life & Accident Ins. Co., 515 F.3d 87, 91 (1 Cir. 2008).
`Plaintiffs’ made no such objection. Accordingly, the court finds that the Magistrate-Judge was correct in
`considering, and ultimately granting, the request for summary judgment.
`
`2
`Defendants also moved for dismissal, pursuant to Fed. R. Civ. P. 12(b)(1), for plaintiffs’ failure to
`comply with 17 U.S.C. § 411(a) in that plaintiffs failed to fulfill the deposit copy requirement. The Magistrate-
`Judge noted that the Supreme Court’s recent decision in Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010),
`foreclosed such an argument and recommended the denial of the motion to dismiss. Neither party objected
`to the Magistrate-Judge’s recommendation as to the motion to dismiss, although defendants did object to the
`Magistrate-Judge’s analysis regarding the deposit copy requirement (discussed further supra at 9-10).
`Inasmuch as no objection has been made, the court, finding no clear error upon review, adopts the
`recommendation regarding the motion to dismiss in full.
`
`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 4 of 16
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`Civil No. 07-2254 (ADC)
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`Page 4
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`Certificate of Registration is a reference to the work referred to as “Secreto.” This argument
`3
`was presented to the Magistrate-Judge, and rejected because plaintiffs did not provide a
`record citation to the alleged 2003 Certificate of Registration. See infra fn. 1. More to the point,
`however, plaintiffs failed, even after the Magistrate-Judge’s explicit statement regarding the
`lack of citation, to provide this court with a citation to the 2003 Certificate of Registration. This
`court echos the Magistrate-Judge’s statement, “the court will not ferret through the record”
`on plaintiffs’ behalf. CMI Capital Mkt. Inv. LLC v. Gonzalez-Toro, 520 F.3d 58, 62-63 (1 Cir.
`st
`2008).
`
`Inasmuch as plaintiffs’ sole objection was a mere re-hashing of previous arguments,
`a de novo review of this portion of the R&R is unwarranted. The only certificate of
`registration that is provided for Pepito Lacomba’s works is dated March 22, 1999 and does not
`contain any reference to a composition entitled “Secreto” or “Viejo Secreto.” ECF No. 57-32.
`Accordingly, finding no clear error, the court agrees with the recommendation and that
`portion of the R&R dealing with “Secretos” is adopted in full.
`Regarding “Tres Recuerdos,” plaintiffs simply argue that the work entitled “Tres
`Historias de Amor en un Recuerdo” is the same work and is contained in the Certificate of
`Registration PA-2-357-741 for the compositions of Johnny Rodríguez. ECF No. 117 at 13-14.
`Plaintiffs’ statement is bare of any citation or other support. The registration documentation
`for the compositions of Johnny Rodríguez does not contain a work entitled “Tres Recuerdos”
`or “Tres Historias de Amor en un Recuerdo.” ECF No. 57-34. As indicated in the R&R, there
`is a work called “Tres Historias de Amor.” ECF No. 57-34. However, this court will not infer
`
`3
`Plaintiffs’ objection states, “As acknowledged in the Recommendation, “the [2003] Certificate of
`Registration for Pepito Lacomba’s works ‘appears listed in PA-1-189-948 as “Viejo Secreto”.” ECF No. 117 at
`10. The R&R does not contain any such statement. The R&R contains a single paragraph on “Secretos”: “First,
`the certificate of registration for Pepito Lacomba’s works does not include any work called “Secreto
`Comentarios” or “Secreto.” (ECF No. 57-32). Plaintiffs contend that the work is listed by another title, “Viejo
`Secreto,” in a registration dating from 2003 that plaintiffs allegedly submitted. However, they do not cite to
`the record, and the court will not ferret through the record on their behalf.” ECF No. 113 at 9-10. Plaintiffs’
`quoted statement is, at best, a careless error and, at worst, a deliberate misrepresentation of the Magistrate-
`Judge’s findings. The court warns plaintiffs to be more precise in their presentations, deliberate
`misrepresentations will not be tolerated.
`
`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 5 of 16
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`Civil No. 07-2254 (ADC)
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`Page 5
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`that this work refers to the same work as either “Tres Recuerdos” or “Tres Historias de Amor
`en un Recuerdo.” The court’s refusal to infer is particularly appropriate in this circumstance
`given that plaintiffs were notified of the Magistrate-Judge’s unwillingness to so infer and still
`refused and failed to provide any authority or citation. Accordingly, the court finds plaintiffs’
`objection meritless and adopts that portion of the R&R dealing with “Tres Recuerdos” in full.4
`Regarding “Amor en Tus Ojos,” the Magistrate-Judge stated, and plaintiffs agree, that
`no certificate of registration was provided. ECF No. 113 at 10; ECF No. 117 at 14-15. Plaintiffs’
`objections note that they requested a certified copy of the certificate of registration on
`November 21, 2009 and that they should not be penalized for bureaucratic delays out of their
`control. The court disagrees with plaintiffs’ characterization. This case was filed by plaintiffs
`5
`on December 28, 2007, almost two years prior to the filing of the present summary judgment
`motions, and proof of registration is a necessary pre-condition for the institution of a
`copyright lawsuit. See Staggs v. West, Civil No. 08-0728, 2010 U.S. Dist. Lexis 63174, *6-7 (4th
`Cir. 2010). Plaintiffs’ decision to wait until November 21, 2009, one month after they filed their
`summary judgment motion and nearly two years after they filed their complaint, is simply
`inexplicable. The court will not excuse plaintiffs’ delay and carelessness in bringing suit and
`6
`finds their objection meritless. As such, the court adopts that portion of the R&R dealing with
`“Amor En Tus Ojos” in full.
`Finally, with regards to “Jíbaro,” plaintiffs argue that they have requested a corrected
`
`4
`The court notes that the registration documentation provided for the compositions of Johnny
`Rodríguez lacks the certification from the Copyright Office. See ECF Nos. 57-35, 57-22. As such, it is unclear
`whether this application was ever actually submitted to the Copyright Office. Such ambiguity further
`supports dismissal of this composition in that plaintiffs may have failed to even apply for registration. See 2
`Melville Nimmer & David Nimmer, Nimmer on Copyright § 7.16 [3][c] (“Absent issuance of a certificate and
`in the absence of the copyright owner even having sent the requisite application (together with deposit and
`fee) to the Copyright Office, there is, under all viewpoints, a defect under the statute.”).
`
`5
` The court notes that plaintiffs’ objections state they requested “a certified copy of the original
`document as per the attached letter which was sent via Fedex.” ECF No. 117 at 14. However no such letter
`was attached to the motion.
`
`6
`Plaintiffs argue that they should not be penalized in view of their independent proof of ownership.
`However, ownership is a different question from registration and similarly, proof of ownership does not
`establish that the registration requirement has been met.
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`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 6 of 16
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`Civil No. 07-2254 (ADC)
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`Page 6
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`Certificate of Registration and therefore they have complied with the registration requirement.
`Plaintiffs’ argument again fails in that no evidence has been submitted as to a supplemental
`registration application. The only registration documentation submitted by plaintiffs, as noted
`by the Magistrate-Judge, did not contain “Jíbaro” on the requested registration certificate.
`ECF No. 57-22. Plaintiffs also attempt to argue that the Certificate of Recordation submitted
`somehow fulfills the registration requirement. Such is not the case. The Certificate of
`Recordation merely indicates that the document attached was recorded in the Copyright
`Office on a specific date. ECF No. 57 at 57-17. It does not provide any information as to
`whether a Certificate of Registration has been applied for or received. Thus, plaintiffs’ offer
`of the Certificate of Recordation does not suffice. Accordingly the court finds plaintiffs’
`objection meritless and adopts that portion of the R&R dealing with “Jíbaro” in full.
`B.
`Collateral Estoppel: Corretjer Works
` The Magistrate-Judge recommended that defendants’ motion for summary judgment
`should be granted as to the works, “Oubao Moin,” “Andando de Noche Sola,” “Boricua en
`la Luna,” and “En La Vida Todo es Ir” (collectively, “Corretjer Works”). In support,
`defendants assert that in a previous litigation the court had already determined that LAMCO
`had not proven ownership of the copyrights to the works and plaintiffs were therefore,
`precluded from relitigating the same in the present litigation. Plaintiffs object to the
`Magistrate-Judge’s recommendation regarding “En La Vida Todo es Ir” only, arguing that the
`prior litigation did not make a determination as to that song. ECF No. 117 at 6-8. Defendants
`7
`do not object to the recommendation. Accordingly, after review and finding no clear error,
`the court adopts that portion of the R&R dealing with “Oubao Moin,” “Andando de Noche
`Sola,” and “Boricua en la Luna” in full.
`
`7
`On September 29, 2010, plaintiffs filed a “Supplemental & Clarification to Objection to Report &
`Recommendation, Nunc Pro Tunc” indicating that plaintiffs objections to the R&R were not just to “En La Vida
`Todo Es Ir” but applied to all the Corretjer works. ECF No. 120. Nonetheless, plaintiffs’ filing was done after
`the September 24, 2010 deadline for filing objections to the Magistrate-Judge’s Report and Recommendation.
`The parties were clearly warned that “No extensions to [this] deadline will be entertained.” Plaintiffs’
`submission is well past the deadline and constitutes an attempt to bring in new objections after the deadline.
`The court will not condone such lateness and as such, will not consider objections filed out of the term fixed
`by the Magistrate-Judge. It is to be noted that plaintiffs even failed to seek an extension of time.
`
`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 7 of 16
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`Civil No. 07-2254 (ADC)
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`Page 7
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`In Brown v Latin American Music Co, Inc., 2006 U.S. Dist. Lexis 97249 (D.P.R. 2006),
`
`Brown moved for summary judgment both on his declaratory judgment claim that “En La
`Vida Todo Es Ir” had entered the public domain and on defendant LAMCO’s counterclaim
`of copyright infringement for “En La Vida Todo Es Ir” and other compositions. Brown, 2006
`U.S. Dist. Lexis at 1. The district court denied summary judgment on Brown’s declaratory
`judgment claim finding that there was a material issue of fact that must be determined at trial.
` Brown, 2006 U.S. Dist. Lexis at 11-14. However, the district court granted summary judgment
`as to LAMCO’s counterclaims of copyright infringement for “En La Vida Todo Es Ir” and
`other compositions, finding that LAMCO had failed to establish ownership of the copyrights
`for the compositions. Brown, 2006 U.S. Dist. Lexis at 7-11. Specifically, the district court found
`that the Certificate of Registration, from February 2000, which was the only evidence of
`ownership provided, failed to establish such because it was registered more than five years
`after the first publication of the work. Brown, 2006 U.S. Dist. Lexis at 7-11. Moreover, the
`district court noted that LAMCO conceded that “En la Vida Todo Es Ir” and four other
`compositions were first published in 1957. Brown, 2006 U.S. Dist. Lexis at 9. On appeal, the
`district court’s grant of summary judgment and subsequent dismissal of the copyright
`infringement counterclaims was affirmed. Brown v Latin American Music Co., Inc., 498 F.3d 18
`(1st Cir. 2007).
`Thus, while plaintiffs are correct in arguing that the district court did not find that “En
`la Vida Todo Es Ir” had entered the public domain, such does not assist plaintiffs in the
`present case. The issue presently before the court is whether LAMCO is able to establish
`ownership of the copyright it asserts against defendants. As evidence of ownership in the
`present case, plaintiffs submit a Certificate of Registration dated February 3, 2000 for a work
`entitled “Oubao Moin y 17 Obras Mas de Juan a Corretjer” and a “Certificate of Recordation.”
`ECF Nos. 57-11, 57-12. The Certificate of Registration states that the date of first publication
`for the works was February 18, 1979. Thus, the evidence presented in the present case appears
`to be the same evidence presented in the Brown case and, most importantly, the same evidence
`that was found insufficient to establish copyright ownership. This court can find no
`differently. Accordingly, that portion of the R&R dealing with “En La Vida Todo Es Ir” is
`
`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 8 of 16
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`Civil No. 07-2254 (ADC)
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`Page 8
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`adopted in full.
`C.
`Licenses from Other Performance Rights Societies: “Eliminación de Feos”
`The Magistrate-Judge recommended that defendants’ summary judgment motion be
`denied as to the works “La Loma del Tamarindo,” “Honra y Cultura,” “Juanito Alimaña,”
`“Dame la Mano Paloma,” “Jíbaro,” “Llegó la Navidad,” and “Madrigal” in that defendants
`failed to provide competent evidence that they were licensed by other licensing companies to
`use the works. ECF No. 113 at 14-15. Plaintiffs’ object to the recommendation arguing that
`there is no evidence that any of the works are owned or controlled by any other Performance
`Rights Society (“PRS”) and that “[i]t is an error to consider that a non-exclusive license from
`another PRO shields Media Power from this willful copyright infringement action.” ECF No.
`117 at 18. Inasmuch as the Magistrate-Judge’s recommendation was to deny the summary
`judgment for lack of evidence, the very issue plaintiffs point out, it is unclear to what exactly
`plaintiffs are objecting. The court cannot understand why plaintiffs would object to a holding
`that benefits their claims. Accordingly, the court finds this objection frivolous, irrelevant and
`unsupported. Defendants also make no objections. Therefore, de novo review is unwarranted
`and the court, finding no clear error upon review, adopts this portion of the R&R in full.
`The Magistrate-Judge also recommended that defendants’ summary judgment motion
`be granted as to “Eliminación de los Feos” upon finding that in a previous litigation it had
`been determined that LAMCO did not own an interest in the work and the copyright was
`solely owned by the Peer group of music publishers. ECF No. 113 at 13-14. Plaintiffs objection
`consists of a single sentence that reads: “Regarding the song “Liquidación of Los Feos” in the
`Peer litigation is not the same as “Eliminación de los Feos” while they are both by the same
`composer the words to the song are different.” ECF No. 117 at 18-19. Again, plaintiffs’
`objection suffers from a complete lack of clarity or meaning. Nowhere in the R&R is a song
`entitled “Liquidación of Los Feos” mentioned. Nor does plaintiffs’ objection provide any
`information, citation or context as to such song or its argument. The court will not do
`plaintiffs work. Most importantly, plaintiffs themselves admit that the two songs are the
`same: “A 1980 published version of the work “Eliminación de Feos” a.k.a “Liquidación of Los
`Feos” . . . .” ECF No. 78 at 14. Plaintiffs’ objection is found to be frivolous in that it is unclear
`
`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 9 of 16
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`Civil No. 07-2254 (ADC)
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`Page 9
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`and is not specific as to the section of the Magistrate-Judge’s recommendation it objects to.
`More to the point, plaintiffs’ objection is unfounded based on its own admissions. Defendants
`also do not object. Since neither party has put forth a specific objection, de novo review is
`unwarranted. Accordingly, having reviewed the R&R and finding no clear error, the also
`court adopts this portion of the R&R in full.
`D. Motion to Strike
`In support of their opposition to defendants’ summary judgment, plaintiffs submitted
`“new” exhibits that constituted deposit copies of certain works. ECF No. 73 at 23. In their
`reply, defendants moved to strike the evidence pursuant to Fed. R. Civ. P. 26 and 37 in that
`plaintiffs had failed to produce such exhibits in response to discovery request. ECF No. 79 at
`33- 36. The Magistrate-Judge recommended that defendants’ motion to strike later submitted
`evidence related to the Deposit Copy Requirement be denied in that defendants were not
`prejudiced and, more importantly, that defendants were on constructive notice of the
`evidence. ECF No. 113 at 19, fn. 13.
`Plaintiffs do not object to the Magistrate-Judge’s recommendation. Defendants object,
`but they fail to make a specific objection. In fact, defendants’ “objection” is nothing more than
`the original argument presented in its reply to summary judgment. See ECF No. 79 at 33-36.
`Accordingly, we review the R&R for clear error only. Rivera-García, 2008 WL 3287236 at *1.
`After review, the court finds no clear error in the Magistrate-Judge’s recommendation, noting
`especially that the R&R states that defendants had constructive notice of the evidence.
`Inasmuch as defendants knew the items were recorded with the Copyright Office, there was
`no surprise or harm in the late production. The portion of the R&R dealing with the motion
`to strike is adopted in full.
`E.
`Deposit Copy Requirement
`Defendants moved for summary judgment on certain works arguing that the deposit
`copy given to the Copyright Office was invalid and, therefore, plaintiffs had failed to comply
`with 17 U.S.C. § 411(a). The Magistrate-Judge found that defendants had failed to establish
`a genuine issue of fact as to the validity of the deposit copies as to the works “Dame la Mano
`
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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 10 of 16
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`Civil No. 07-2254 (ADC)
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`Page 10
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`Paloma,” “La Botellita,” “El Bambú,” “Padre San Antonio,” and “Flotando Sobre el Caribe,”
`“Secreto,” “Jíbaro,” and “Amor en Tus Ojos.” Additionally, as to “El Pollito Chicken,” the
`Magistrate-Judge found that a genuine issue of material fact existed regarding the deposit
`copy’s validity but ultimately denied defendants’ motion for summary judgment.
`Both parties objected to the Magistrate-Judge’s recommendations. Defendants’
`objections are almost verbatim copies of arguments presented both in its moving papers and
`reply. ECF No. 119 at 15-21; ECF No. 54 at 9-13; ECF No. 79 at 18-23. Accordingly, they will
`not be considered by this court. Camardo, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (“It is
`improper for an objecting party to . . . submit[ ] papers to a district court which are nothing
`more than a rehashing of the same arguments and positions taken in the original papers
`submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the
`apple’ when they file objections to a R & R.”). In raising an objection, plaintiffs seems to argue
`that the deposit copy requirement had been complied with in that “the best edition of the
`work available for copyright” was deposited. ECF No. 117 at 20. The court notes that
`plaintiffs’ objection contains no citations to the record, legal authority or documentary
`evidence - just conclusive statements stating that the “underlying deposit copyright
`registration is the first rendition of the work as registered by the composer.” ECF No. 117 at
`20. Such naked allegations do not suffice to establish a factual or legal error in the R&R.
`More importantly, plaintiffs’ objection fail to shed much light on the issue of the
`validity of the deposit copy. The First Circuit is clear in its guidance that a “deposit copy
`created without access to or reliance on the original work, cannot constitute a “copy,” as the
`term is used. . . . “ Torres-Negrón v. J&N Records, 504 F.3d 151, 157 (1 Cir. 2007). Thus, whether
`st
`the deposit copy provided was the first or fifth copy makes no difference if it was not made
`with access or in reliance on the original work. Plaintiffs have not shown such, thus, the
`Magistrate-Judge’s recommendation was appropriate and that portion of the R&R is adopted
`in full.
`
`
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`

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`Case 3:07-cv-02254-BJM Document 148 Filed 03/30/11 Page 11 of 16
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`Civil No. 07-2254 (ADC)
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`Page 11
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`Infringement
`F.
`Having already found summary judgment as to certain compositions, the Magistrate-
`Judge analyzed the question of infringement as to twelve songs: “Llegó la Navidad,”
`“Flotando Sobre el Caribe,” “Padre San Antonio,” “Dame la Mano Paloma,” “Honra y
`Cultura,” “La Loma del Tamarindo,” “Juanito Alimaña,” “La Botellita,” “Jalda Arriba,”
`“Madrigal,” “El Bambú” and “Pollito Chicken.” 8
`1.
`Failure to Prove Unauthorized Use
`The Magistrate-Judge first recommended that defendants’ summary judgment motion
`for copyright infringement as to the works “Jalda Arriba,” “El Bambú” and “Dame la Mano
`9
`10
`Paloma” for failure to show unauthorized use be granted. ECF No. 113 at 22-24. The
`Magistrate-Judge noted that for each composition there was either insufficient, or a complete
`lack, of evidence supporting any finding of infringement. Id. Neither plaintiffs or defendants
`
`8
`The R&R states that as to “Llegó la Navidad,” “Flotando Sobre el Caribe,” “Padre San Antonio,”
`“Dame la Mano Paloma,” “Honra y Cultura,” “La Loma del Tamarindo,” “Juanito Alimaña,” “La Botellita,”
`“Jalda Arriba,” “Madrigal,” there was no genuine issue of fact as to plaintiffs’ ownership of a valid copyright.
`ECF No. 113 at 20. Neither party objects to this recommendation or finding. Therefore, finding no clear error
`upon review, the court adopts this portion of the R&R in full.
`
`9
`Plaintiffs’ complaint, first filed on December 28, 2007 and then re-filed on February 1, 2008, alleges
`copyright infringement as to “Jalda Arriba” on October 21, 2004 and on July 9, 2006. ECF No. 4 at ¶ 26; ECF
`No. 55 at ¶¶ 32-34. However, “Jalda Arriba” was not registered until October 2006. ECF No. 55 at ¶ 35.
`Defendants argued that the claim for the October 2004 infringement was time-barred by the statute of
`limitations of 17 U.S.C. § 507(b) which states that “no civil action shall be maintained under the provisions of
`this title unless it is commenced within three years after the claim accrued.” The Magistrate-Judge agreed,
`recommending that summary judgment as to the October 2004 claim be granted. Neither party objects to this
`recommendation. Accordingly, finding no clear error upon review, the court adopts this portion of the R&R
`in full.
`
`10
`The Magistrate-Judge had also found that a genuine issue of material fact existed as to ownership
`of “El Bambú.” ECF No. 113 at 17. Given this court’s adoption of the Magistrate-Judge’s recommendation
`regarding the lack of evidence of copyright infringement, the plaintiffs’ claims as to “El Bambú” are dismissed
`and the question of ownership is moot. However, for the sake of completeness, the court addresses plaintiffs’
`objections to the Magistrate-Judge’s recommendation regarding ownership. Inasmuch as plaintiffs’ objection
`fails to point to any specific error of law or fact and plaintiffs have offered nothing but conclusory statements
`to support their objection– no further factual averments or further legal support, the objection is considered
`meritless. ECF No. 117 at 19. Since de novo review is unwarranted, the court, finding no clear error upon
`review, adopts this portion of the R&R in full.
`
`

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`objected to this recommendation. Accordingly, finding no clear error upon review, the court
`adopts this portion of the R&R in full.
`2.
`Admissibility of Proof of Infringement
`As proof of infringement, plaintiffs submitted two CDs with their opening motion on
`which the allegedly infringing broadcasts were recorded.
` Mr. Luis Raul Bernard (“Mr.
`11
`Bernard”), President of LAMCO and ACEMLA, stated the following in support of the CDs:
`“I have personally heard and I had copied and recorded on 2 CD’s submitted as Exhibit 3 and
`4, most of the infringements specified in the Chart, with the exception of a few songs
`infringed. The referenced songs in the CD’s as Exhibit 3 and 4 were sent to be recorded the
`playing of music by composers affiliated to LAMCO and ACEMLA was done by myself
`through Publi[c] Media, Inc., an agency that records all news and radio broadcast.” ECF No.
`57-51 at ¶ 10. Defendants objected to the CDs as inadmissible evidence in that there was “no
`testimony by persons with knowledge of how these [CDs] were generated or recorded, nor
`have they submitted other evidence to help explain the same.” ECF No. 71 at 13-14.
`While the Magistrate-Judge did not rule directly on the admissibility of the CD, the
`Magistrate-Judge considered and relied on the evidence therein. ECF No. 113 at 26
`(“Moreover, plaintiffs have submitted a CD that contains a broadcast of this composition.”).
`As such, it is clear that the Magistrate-Judge found the CDs admissible. Defendants reiterated
`the arguments presented in their opposition, almost verbatim, in their objections. ECF No.
`119 at 4-6; ECF No. 71 at 13-14. While such re-hashing is not a valid objection and, therefore,
`does not mandate de novo review, the court reviews the question of admissibility of the CDs.
`Fed. R. Civ. P. 56 (e) specifically states: “. . . If a paper or part of a paper is referred to
`in an affidavit, a sworn and certified copy must be attached to or served with the affidavit.”
`Thus, in order for exhibits to be admissible during the summary judgment stage, these must
`
`11
`Plaintiffs later filed two new CDs, identified as ECF No. 73, Exhs. 9A and 9B, which replaced ECF
`No. 57, Exhs. 3,4. Plaintiffs alleged that Exhs. 9A, 9B were the same at Exhs. 3,4. ECF No. 73 at 28. This is not
`the case. While Exh. 3 and Exh. 9A list the same songs, Exh. 4 and Exh. 9B differ. Exh. 9B contains “Flotando
`Sobre el Caribe” and Exh. 4 does not. Once again, plaintiffs are warned to be more precise in their
`representations to the court.
`
`

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`be authenticated by and attached to affidavit or unsworn statement under penalty of perjury
`that meets the requi