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Musicmatch Breaches the
Protective Order ? June 16, 2008 After promising the court and Plaintiff all the advantages of a functional inspection of the 300 servers in its Motion for Protective Order, Musicmatch denied Plaintiffs all requests for functional inspections (including access to the Musicmatch's Online Music Store) of the 300 servers at its Burbank Data Centre, and averred that the Protective Order issued on April 29, 2008 is for “visual inspection” only. That is, to permit Plaintiff to have a look at the physical appearance of the 300 servers and the program codes. Being stunned by the denial email and cannot believe in his eyes, Plaintiff filed a Motion to Sanction Musicmatch on May 8, 2008, informing the court of it's beach of the Protective Order. At last, in its Reply to Motion to Sanction, Musicmatch admitted the 300 servers have been downed for some time, as its explanation for denying Plaintiff's functional inspection requests. This calls into question whether the Musicmatch Online Music Store's servers actually still existed, at the time when it filed the Motion for Protective Order on March 27, 2008, or when the court issued the Protective Order on April 29, 2008, which permits it to discard the servers, on condition that Musicmatch has to allow Plaintiff to inspect the servers by May 1, 2008. However, the court issued an order denying sanction on Musicmatch on June 12, 2008. Regardless of the court decision is consistent with the provision 1 of its Protective Order or not, which is written as “By May 1, 2008, MusicMatch shall permit Plaintiffs counsel and/or experts to inspect the MusicMatch servers”, Musicmatch has gotten the court permission to discard its servers, after backing up the software and data therein as prescribed by provision 2. From now on Plaintiff can only rely on the backed up information
retained by provision 2, to prove infringement. Undoubtedly, Yahoo, the parent company of Musicmatch, in charge of this action, takes advantage of Plaintiff, by one way or another. If the Musicmatch's servers not existed, or being changed for use in other purposes, before the Protectice Order, then the court will have to demonstrate its commitment on its role of enforcing law and order by action. Order Denying Plaintiff's
Motion for Sanctions |