The BBC, a private corporation which competes in the commercial television market and for the most part is managed like a for-profit business, has admitted that its employees came to New York and copied all or most of the Plaintiff’s work at issue (the "Work"). These employees admittedly did so without authorization from the Plaintiff. The BBC now argues that this was for the purpose of a "fair use" which "conveyed only the true fact that Byrne’s song is the Theme Song of the Radio Program" discussed in the BBC’s documentary (the "Documentary"). As a viewing of the Documentary demonstrates, however, the "true fact" is that at no point in the Documentary is there any mention, nor any "conveyed" implication, that the Work is the theme song for the Radio Program.

To the contrary, it is undisputed that in the Documentary, the BBC used nearly 40 seconds of the Work as background music and lyrics for images of geographical maps, harbor views and city scenes which were displayed prior to any footage of, or reference to, the Radio Program. (The BBC also included more than 10 seconds of the Work in its footage of the Radio Program. Like the nearly 40-second segment which preceded it, this additional segment also did not convey any statement or implication that the Work was the theme song for the Radio Program.)

Like the BBC’s "theme song" argument, its other fair use argument, namely, that its use of the Work for nearly 40 seconds prior to the footage of the Radio Program was designed to be a transition, or "clean fade," between program segments, is merely another after-the-fact attempt to justify an act of copyright infringement. This is the conclusion of two leading experts in the field of documentary television filmmaking, including a veteran BBC television producer, who both have demonstrated that the BBC’s professed rationale is suspect at best.

In any event, the BBC correctly admits that under the required fair use analysis concerning substantiality of copying, "the key is whether the defendants [sic] have used any more of the copyrighted work than is necessary." BBC Mem. at 7. It is therefore especially noteworthy that the BBC’s own witnesses on this motion, including the producer of the Documentary, do not allege that any use of the Work was necessary in this case. Indeed, if any audio transition were needed to lead up to the Radio Program discussion of the Florida gun-running, the over 10 seconds of the Work which was used during the beginning of the Radio Program footage was more than enough.

to be resolved by a jury with regard to the fair use issue, thus precluding summary judgment. The Federal Rules and applicable case law also provide that summary judgment would be inappropriate for the additional reason that discovery thus far has been stayed. As set forth in this memorandum, and in the accompanying Rule 56(f) affidavit of Eamonn Dornan, discovery is required with respect to several fair use factors, including the purpose and character of the use at issue, the effect of the use on the market for the Work, and the essentially commercial nature of the BBC (which, if proven, would create a legal presumption of damage to the Work’s market value).

The BBC’s purported fair use defense constitutes its only argument for dismissal of the Plaintiff’s United States copyright claims with regard to the BBC’s copying of the Work in New York. Accordingly, because that defense is unsustainable and in any event cannot prevail at this juncture, the applicable legal authorities suggest that the case should proceed with United States law governing the BBC’s act of infringement here, and with the law of the United Kingdom governing the BBC’s infringing distribution of portions of the Work in Great Britain and Northern Ireland. Even if the BBC were to prevail with its argument that only the law of the United Kingdom should apply to the remainder of the case, this Court repeatedly has held that such foreign laws may be enforced in the Southern District, provided that, as is the case here, the Court has personal jurisdiction over the defendant.

That branch of the BBC’s motion which seeks dismissal of the entire action on purported grounds of forum non conveniens is even less warranted than the assertion of fair use. What the BBC has not mentioned to the Court is that its burden in establishing inconvenience, pursuant to well-established and controlling law annunciated by the United States Supreme Court, is "to demonstrate that New York [is] such an oppressive and vexatious forum as to be ‘out of all proportion’ to its demonstrated convenience to [the plaintiff]." Guidi v. Inter-Continental Hotels Corp., 203 F.3d 180, 184-85 (2d Cir. 2000), quoting and citing "the standard articulated in" Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828 (1947). The BBC has not even begun to establish any "oppression" and "vexation," much less any oppression and vexation that is "out of all proportion" to the benefits of the Plaintiff’s choice to

litigate in the city where he and his family reside and are domiciled, and where the BBC copied his music and voice.

For example, the BBC has failed to identify any foreign defense witnesses other than its own employees. The BBC easily can send these employees to New York to testify, just as it sent its employees to New York and elsewhere in this country to gather the materials used in the Documentary. The BBC also undoubtedly has lawyers on its staff and on retainer who are conversant with British copyright law and easily can assist in briefing the Court on the foreign law issues (which, according to repeated holdings of this Court, pose no significant difficulty for the Court). As for documentary evidence, to the extent that such documents exist overseas, they can be copied and sent to New York by overnight courier without any substantial burden. The BBC, which maintains offices in New York, has 23,000 employees worldwide, and receives annual revenues in excess of $4 billion, will suffer no hardship in litigating before this Court.

By contrast, the Plaintiff has demonstrated at least five powerful reasons why a decision compelling an individual New York resident (and United States citizen) of modest means to find new attorneys across the Atlantic, and requiring him to prepare for and attend a trial thousands of miles from his home, family and job, in order to redress the conduct of a wealthy foreign corporation which came to this city to copy his work, would be more than unfair. Byrne Aff. at ¶¶ 6-14. Effectively it would leave the Plaintiff with no forum at all. The BBC cannot dispute the fact that even if the Plaintiff could afford to pay for new attorneys abroad, he would suffer substantial financial hardship if he were required to do so. The BBC also cannot deny that contingency cases such as this one are not permitted in Northern Ireland. It also cannot seriously dispute the affirmation of one of Britain’s most prominent solicitors, who advises the Court that (a) in order to litigate in England, the Plaintiff could be required to pay many thousands of pounds as security for the fees and expenses of the BBC, and (b) in addition, the Plaintiff’s ability to find solicitors and barristers in England who would prosecute this case against the BBC without requiring upfront payment of their own fees and expenses is by no means certain.

Moreover, the BBC cannot deny that if this Court were to require the Plaintiff to go to the United Kingdom to refile his copyright and "passing off" claims (which are the only claims left in this case, given the Plaintiff’s voluntary dismissal of his defamation claims with the BBC’s consent pursuant to Fed.R.Civ.P. 41), the Plaintiff would be deprived of the basic right guaranteed to him by the Seventh Amendment to the United States Constitution -- the right to a trial by jury. There are no jury trials allowed in such civil cases anywhere in the United Kingdom. At least three Circuit Courts, as well as this Court, have held that the unavailability of a jury trial in a foreign forum is a factor that militates against the granting of a forum non conveniens motion.

precedent, signaling that foreign companies may come to the United States and copy the creative works of United States citizens for foreign exploitation without ever having to defend their conduct in the United States. Such a ruling plainly would be at odds with the clear Congressional objective of protecting America’s most valuable current export, its intellectual property.

The facts relevant to this motion are set forth in the accompanying affidavits of Plaintiff Christopher Byrne, veteran BBC television producer Martin Dillon, veteran PBS producer Daniel Polin, attorney Eamonn Dornan, and docket clerk Robert Fila, affirmations of leading solicitors Geoffrey Lionel Bindman and P.J. Barra McGrory, and the Plaintiff’s Local Rule 56.1 Statement (annexed following the Fila Affidavit). We respectfully refer the Court to those documents, rather than repeating their contents here.

As part of its motion for dismissal on grounds of forum non conveniens, the BBC has moved in the alternative for partial summary judgment against the Plaintiff’s United States copyright claims, on the grounds of "fair use." BBC Mem. at 1. Both because the BBC has failed to meet the requirements for summary judgment in any case, and because the available facts demonstrate that the fair use doctrine does not apply here, summary judgment should be denied.

A. THE BBC HAS FAILED TO MEET

It is fundamental that summary judgment may not be granted if the moving party fails to meet its burden of demonstrating that there is no "genuine issue as to any material fact." Tomasini v. The Walt Disney Company, 84 F. Supp. 2d 516, 518 (2000), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). In this case, because no discovery has begun, since the Court has stayed discovery pending the determination of this motion, the Plaintiff need make only a prima facie showing, by means of his pleadings and affidavits, that an issue as to any material fact exists, and those documents must be "construed in the light most favorable to plaintiff," such that " all doubts are resolved in its favor." Cutco Industries v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).

As the United States Supreme Court has held, summary judgment is to be entered when, "after adequate time for discovery and upon motion, . . . a [non-moving] party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552 (emphasis added).

Specifically, in copyright infringement cases, a defendant must establish that a plaintiff has not made out the essential elements of a claim in order to prevail on a motion for summary judgment. Tuff ' N' Rumble Management, Inc. v. Profile Records, Inc., 1997 U.S. Dist. LEXIS 4186 (S.D.N.Y. 1997); see Repp v. Webber, 132 F.3d 882, 890 (2d Cir. 1997), cert. denied, 525 U.S. 815 (1998).

The BBC has not made, and cannot make, such a showing. According to the criteria set forth in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296 (1991), the Plaintiff here has established both of the essential elements of a claim of copyright infringement. "To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Id. These issues are not in dispute. BBC Mem. at 4, n.2; O’Brien Aff. ¶¶ 7-12, 15, 17-18.

As for the BBC’s alleged defense of "fair use," the material facts in relation to this defense are vigorously contested. See Polin, Dillon, and Dornan Affs.; Plaintiff’s Local Rule 56.1 Statement. Moreover, even if the Court were to find that the Plaintiff’s supporting affidavits and Local Rule 56.1 Statement were insufficient in themselves to establish genuine issues as to material facts, the Court should "refuse the application for [summary] judgment" pursuant to Fed.R.Civ.P. 56(f), on the grounds that the Plaintiff has been unable to conduct discovery needed with respect to many of the material facts or potential material facts. Dornan Aff. at ¶¶ 2-10.

Accordingly, for all of the above reasons, and for the reasons further explained below, we respectfully submit that there is no appropriate basis for granting that part of the BBC’s motion which seeks partial summary judgment.

B. THERE WAS NO FAIR USE

It is not disputed in this motion that the fair use doctrine, codified in 1976 as a statutory exception to copyright infringement, provides that, "[i]n determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include –

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work."

17 U.S.C. § 107.

Before addressing each of the four fair use factors in turn, it should be noted that, as the BBC concedes, fair use is an "equitable rule of reason," which is to be applied in light of the statute. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 448, 104 S. Ct. 774 (1984), quoting House Report, H.R. Rep. No. 94-1476, pp.65-66); BBC Mem. at 6. The BBC cannot avail itself of an equitable remedy if it comes to the Court with unclean hands, and it is unquestioned that the BBC used approximately 50 seconds of the Work, representing "an extended exploitation" of it, without a license. (Polin Aff. ¶¶ 11-12). And, since every BBC producer knows that copyrights should be cleared when using a theme song of another program, (Dillon Aff. ¶ 6), and the BBC producer here had determined in advance to copy the Work (O’Brien Aff. ¶12), the BBC does not approach the Court with clean hands. Moreover, the BBC knew, or should have known, that the Plaintiff would be vigorously opposed to granting a license to BBC to use his Work. The BBC presumably knew that the lyrical content of the Work that it copied was critical of the British media and diametrically opposed to the BBC’s mission and message.

The BBC’s use of the Work was also entirely unreasonable. As the Second Circuit Court has held, "[t]he fair use privilege is based on the concept of reasonableness, and extensive verbatim copying or paraphrasing of material set down by another cannot satisfy that standard." Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310 (2d Cir. 1966); cert. denied, 385 U.S. 1009 (1967). In the case before the Court, we are examining precisely that, i.e., the extensive verbatim copying of the Plaintiff’s material for use in the Documentary.

"Fair use presupposes ‘good faith and fair dealing.’" Roy Export Co. Establishment v. Columbia Broadcasting Sys., Inc., 503 F. Supp. 1137 (S.D.N.Y. 1980), aff’d, 672 F. 2d 1095 (2d Cir. 1982). Neither good faith nor fair dealing is apparent in this case. In particular, no effort was made by the BBC to contact the Plaintiff to request a license, even though he was readily available and the BBC had determined in advance to use the Work. O’Brien Aff. ¶ 12. The BBC did not credit the Plaintiff, even though it presumably was aware of his ownership in the copyright. It is now apparent that the BBC never had any intention of negotiating a license for the use of the Work. The BBC cannot rely on any implied license from the Radio Program, as the Plaintiff has the exclusive right, pursuant to §§106 and 114 of the Copyright Act to authorize the reproduction of his Work. Every BBC producer knows that all copyrights must be cleared, and it is inconceivable that the BBC assumed it had obtained the rights to the Work from the radio program, as the BBC claims. Dillon Aff. ¶ 6.

In any event, as explained below, none of the five elements of the fair use defense favor the BBC, such that the defense should be rejected on that basis as well.

It never has been a requirement that a defendant profit financially from his or her infringement in order to be liable for copyright infringement. Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 584 (1994) ("the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement"). In this case, however, the BBC has obtained substantial benefits from its unauthorized use of the Work in its Documentary, since the BBC competes with for-profit broadcasters and tries to maintain its revenues (i.e. the License Fee) as any wholly commercial broadcaster would. Dillon Aff. ¶ 8. Indeed, it is submitted that the Documentary, broadcast during primetime for 30% of the available audience (Adams Aff. ¶ 8), would have been less appealing without the exploitation of the Plaintiff’s copyrighted lyrics and music. Dillon Aff. ¶ 7.

Although the BBC contends that "the use is non-commercial, as the BBC is a not-for-profit institution, serving an educational purpose" (BBC Mem. at 6, Moran Aff. ¶ 7; Adams Aff. ¶¶ 5,6), the fact that BBC Northern Ireland is a not-for-profit entity has no necessary bearing on its purpose in exploiting the Work. Dillon Aff. ¶ 9. As pointed out by one of the Plaintiff’s experts, a veteran BBC Northern Ireland producer, its purpose was the same as any of its commercial competitors, namely, to maintain and increase its audience, in part to justify the salaries of its executives and producers. Id. at ¶¶ 7-9.

of its outgoing director-general at over $1.2 million, BBC Chairman Christopher Bland stated, "[w]e are not simply a public service broadcaster, but a business...." Dornan Aff. at Exh. B.

According to Hoover's Company Capsule Database, the BBC’s "growing involvement in commercial ventures... has prompted questions as to whether it is straying from its public service roots" Id. at Exh. C. Indeed, the BBC cannot be readily compared to other not-for-profit organizations, and it plainly falls outside of Congress’s conception of an educational organization deserving of protection for copyright infringement. See Historical and Revision Notes to §107 of the Copyright Act, House Report No. 94-1476 ("House Report")

As for the fact that the Documentary itself was not sponsored by commercial advertising, this Court has held that the absence of such sponsorship does not necessarily signify a non-commercial use. Lish v. Harper’s Magazine Found., 807 F. Supp. 1090, 1101 (S.D.N.Y. 1993) (unsponsored television broadcast was a "commercial use," on grounds that a television station may gain at least indirect commercial benefit from ratings boost occasioned by an unsponsored program).

Even if this Court were to accept the BBC’s allegations that its use of the Work was "educational" and "not for profit," the Supreme Court has held that "the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement." Campbell, 510 U.S. 569, 583. As noted in another Supreme Court case, fair use analysis involves looking beyond the nature of the organization itself to determine the true motive of the unauthorized use. Harper & Row Publisher v. Nation Enterprises, 471 U.S. 539, 562 (1985). In addition, the legislative history of the Copyright Act states that even where "educational broadcasters" are concerned, a fair use analysis should include such considerations as "whether the performers, producers, directors and others responsible for the broadcast were paid," and "the size and nature of the audience...." House Report, supra.

In the case here, to counter its critics in the British parliament who would like to cut or even eliminate the License Fee and cut the high salaries of BBC executives, the BBC acts like any commercial broadcaster and strenuously endeavors to maintain and increase its audience. Dillon Aff. ¶ 8. We also have no doubt that discovery will reveal that the BBC producers and other responsible employees were paid handsomely for their work, and the BBC already has admitted that the potential audience for the Documentary was the entire population of the United Kingdom (including Great Britain and Northern Ireland) and portions of the Republic of Ireland. Moran Aff. ¶ 5.

As Justice O’Connor noted in Harper & Row, 471 U.S. at 562, "[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain, but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Here, the BBC clearly "profited" from the synchronization of the Plaintiff’s work to "jazz up" what might otherwise have been a less appealing Documentary. Dillon Aff. ¶ 9; Polin Aff. ¶ 11.

Nor can the BBC hide behind the fact that the Documentary examined current events, in order to avoid its liability for infringement. See Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc. 166 F. 3d 65 (2d Cir. 1999) (defendant abstracted news articles published by a Japanese publisher, and Court found that the purpose and character of the use weighed against fair use, notwithstanding the fact that the abstracts were for the purpose of news reporting).

Finally in relation to the "nature and purpose of the use" factor, the BBC has not established and cannot establish that its use of the Work was "transformative" as required by the applicable case law. See e.g. Campbell v. Acuff-Rose Music, 510 U.S. at 579. In an analogous case, Los Angeles News Service v. Reuters Television International Ltd., 149 F.3d 987 (9^th Cir. 1998), cert denied, 525 U.S. 1141 (1999), the Court found that even though a defendant had a news reporting purpose, its use of the footage at issue in that case was not sufficiently transformative, because the defendant "does not explain the footage, edit the content of the footage, or include editorial comment."

Similarly in this case, the BBC did not explain, edit the content of, or include editorial comment on, the Work. Indeed, neither the Work, nor the Plaintiff, was a subject of the Documentary. The BBC’s use of the Work simply does not serve the purpose claimed in the BBC Memorandum, i.e., "advising a Northern Ireland audience as to relevant current events." BBC Mem. at 6; Moran Aff. ¶ 7; Adams Aff. ¶¶ 5, 6. Rather, its purpose was to provide an aesthetic enhancement that added "punch" to an otherwise lackluster Documentary. Dillon Aff. ¶ 7.

The BBC further cites Italian Book Corp. v American Broadcast Company, Inc., 458 F. Supp. 65, 70-71 (S.D.N.Y. 1978), in support of its contention that the synchronized use of background music is fair use. This case is readily distinguishable from the case at bar. In Italian Book Corp., the Court relied upon the fact that the use of the song at issue was an "incidental and fortuitous reproduction...." Id. at 71. In the case here, by contrast, the BBC’s use was not "incidental" or "fortuitous." To the contrary, unlike the use in Italian Book Corp., the BBC’s use of the Work was a "deliberate stylistic and editorial device." (Dillon Aff. ¶ 7, O’Brien Aff. ¶ 12). Indeed, the BBC had a predetermined plan to use the Work. O’Brien Affidavit, ¶ 12, Dillon Aff. ¶¶ 7, 9.

The BBC relies on Higgins v. Detroit Education TV Foundation, 4 F. Supp. 2d 701 (E.D. Mich. 1998). The Court in that case, however, highlighted the distinction between the barely distinguishable use of the song in Higgins and the use of a poster for an "express decorative purpose" in a television program in Ringgold v. Black Entertainment Television. Inc., 126 F.3d 70 (2nd Cir. 1997) that was not afforded the fair use defense. Higgins, 4 F. Supp. 2d at 706. The Court in Ringgold, in denying the defense, found that the work was used as the "focal point" for the action, and the Higgins Court contrasted this with the "only two barely discernable snippets of an instrumental portion" of the song used in Higgins. 4 F. Supp. 2d at 706-07.

Creative, imaginative and original works, such as the Work at issue in this case, are entitled to a higher degree of fair use protection. As Professor Nimmer points out, "the more creative a work, the more protection it should be accorded from copying; correlatively, the more informational or functional the plaintiff’s work, the broader should be the scope of the fair use defense." 4 M. & D. Nimmer, Nimmer on Copyright § 13.05[A][2][a]. More particularly, as the BBC readily concedes, creative works are "closer to the core of intended copyright protection" than mere factual works, Campbell, 510 U.S. at 586; BBC Mem. at 7. The creative nature of the Work thus prevents the BBC from establishing a defense on the second factor.

The taking of 50 seconds of the Work is not fair use according to legal standards of substantiality. Within the broadcasting industry itself, 50 seconds is considered an "extraordinary" use and "an extended exploitation" which must alert the producer to the need to obtain a synchronization license from the copyright owner. Polin Aff. ¶ 12; Dillon Aff. ¶ 7. In Rogers v. Koons, 960 F.2d 301, 311 (2d Cir.) cert. denied, 506 U.S. 934 (1992), the Court restated that "[i]t is not fair use when more of the original is copied than necessary. Even more critical than the quantity is the qualitative degree of the copying: what degree of the essence of the original is copied in relation to its whole."

Here, all the key elements of creative expression in the copyrighted Work were copied wholesale. Byrne Aff. ¶ 3. Not only do the Plaintiffs’ experts agree that this was not

necessary (Polin Aff. ¶ 11; Dillon Aff. at ¶ 4), but in addition, the BBC has failed to submit any affidavit saying that the use was necessary.

The BBC cannot deny that it took the "heart" of the Plaintiff’s work, regardless of the amount taken. In the leading case of Harper & Row, 471 U.S. at 565, the Court held that with regard to the amount and substantiality of the portion used in relation to the copyrighted work as a whole, an account should be taken of whether the infringer had taken "the heart" of plaintiff’s work, even if the amount taken is small. In this instance, the amount taken is substantial ("an extended exploitation," Polin Aff. ¶ 12; and "an extraordinary use," Dillon Aff. ¶ 7), but in any event takes "the heart" of the Plaintiff’s Work, in that the amount taken incorporates all the key lyrics and the "guts" of the song. Byrne Aff. ¶ 3.

The fourth and final fair use factor examines the effect of the use upon the potential market for or value of the copyrighted work. In this case, because the BBC functions effectively in the same manner as a commercial broadcaster and had the same motives as a commercial broadcaster in exploiting the Work to increase its market share (see sub-point B-1, supra), the fourth fair use factor need not be evaluated. In such a case, harm to the market for the Work is presumed as a matter of law. Rogers v. Koons, 960 F.2d at 312 ("where the use is intended for commercial gain, some meaningful likelihood of future harm is presumed"), citing Sony Corp. v. Universal, 464 U.S. at 451. The Plaintiff has demonstrated, at the very least, that there is a disputed issue of material fact as to whether this case involves an essentially commercial use. See sub-point B-1, supra.

In any event, where, as here, the subsequent use of a protected work is in competition with the copyrighted use, and it is shown that such subsequent use lessens the value of the copyrighted work, the fair use defense is not available. See also Rosemont, supra, 366 F.2d at 310-311.

The BBC and the Plaintiff compete in the same marketplace, in that they both address the nationalist and republican communities in Ireland, North and South, with the BBC’s audience including all of Ireland. Adams Aff. ¶ 8; Byrne Aff. ¶ 4; Dillon Aff. ¶ 10. However, the perspectives of the BBC and the Plaintiff are diametrically opposed. The BBC supports the British government and is viewed by republicans and nationalists to be an integral part of the structure of British/Unionist rule in Northern Ireland. Amended Complaint at ¶¶ 42, 43; Dillon Aff. ¶10. The Plaintiff targets the same market, criticizing the British media and its effects on the minds of Irish youth. Byrne Aff. ¶ 4. The BBC’s unauthorized use of the Work could not be more clearly competitive with the Plaintiff’s use of the Work. Moreover, because the BBC’s viewers were led by the BBC to believe that the Plaintiff had granted a license to the BBC (Polin Aff. ¶ 13; Byrne Aff. ¶ 5), this plainly caused damage to the Plaintiff and presumably to the value of the Work. Even the mere use of the theme melody of a popular song in a radio advertisement has been found to have been harmful to the whole song, Robertson v. Batten, Barton, Durstine & Osborne, 146 F. Supp. 795, 30 (S.D. Cal. 1956); see also Castle Rock Entertainment v. Carol Pub. Group, Inc., 955 F. Supp. 260, 271 (S.D.N.Y. 1997); Nihon Keiza, 166 F.3d at 73.

In the case here, not only does the BBC’s seemingly authorized exploitation of the Work diminish its potential sales, it also diminishes the Plaintiff’s standing among his audience, by compromising the integrity of his beliefs and the core of his artistry. This obviously has a greater and more long-term impact on the Plaintiff than the mere loss of sales.

The BBC argues that "mere recordation – without any publication, distribution or transmission – cannot possibly have any effect on the actual or potential market for the Theme Song." This argument is academic here, where there was no "mere" recordation. Here, the infringing recordation was published and transmitted, and the recordation was in all likelihood undertaken for that purpose. See O’Brien Aff. ¶¶ 12, 17; Dillon Aff. ¶ 7.

Moreover, the cases cited by the BBC are inapposite. In Italian Book, 458 F. Supp. 65, for example, the Court held that "[w]here the subsequent use of a protected work is not in competition with the copyrighted use, and no showing is made that such subsequent use lessens the value of the copyrighted work, the fair use defense is generally sustained." Id. at 70. In the case here, by contrast, there are competing uses. The Work is used by the Plaintiff to oppose the BBC and its message, before an audience that is a subset of the BBC’s audience. In addition, the value of the copyrighted work has been lessened.

The BBC had no authorization from any copyright holder for its copying of the Work in the United States. Pursuant to the Copyright Act, only the copyright holder may permit reproduction of his work. 17 U.S.C. §§ 106, 114. The radio station, WBAI, while allowed to broadcast the Plaintiff’s Work, had no right to grant any license to the BBC, and no such right is identified in the BBC’s memorandum. Indeed, "[t]he well-known internal guidelines of the BBC, known to every producer, require that permissions must be obtained from copyright owners or their representatives, not from third parties or licensees." Dillon Aff. ¶ 6.  The Plaintiff, for reasons outlined in the Amended Complaint, certainly would have refused permission for the BBC to do so. Byrne Aff. ¶ 3. Accordingly, the BBC has violated United States law in the United States, and should held to account for it in this Court.

The BBC protests that "it is not the law" that each and every infringement consisting of copying and publication constitutes two separate acts of infringement. To the contrary, the law is clear that a violation of a copyright owner’s reproduction right can be a separate infringement, even if the copied work is never distributed by the infringer and is used only for the infringer’s private purposes. The Court in Alcatel USA Inc v. DGI Techs, Inc., 166 F.3d 772 (5^th Cir.1999), cited by the BBC, quotes Professor Nimmer as follows:

Id. at 787, n.5.

Likewise in Agee v. Paramount Communications, Inc., 59 F.3d 317 (2d Cir. 1995) the Second Circuit Court of Appeals held that a defendant had infringed a plaintiff’s separate and exclusive right to reproduce his copyrighted musical recording, even though there was no infringement of the plaintiff’s right of distribution.

In the present case, the BBC again infringed the Plaintiff’s rights in the United Kingdom when it inserted, edited, and broadcast at least 50 seconds of the Work in the Documentary. Because we agree with the BBC that the law governing infringement is the law of the jurisdiction where the infringement took place (BBC Mem. at 3-5, citing Itar-Tass Russian News Agency v. Russian Kurier, Inc. 153 F.3d 82 (1988)), the BBC’s infringements in the United Kingdom are governed by the law of that jurisdiction, and the BBC’s infringement in the United States is governed by the law of the United States. As the Second Circuit Court of Appeals held in Itar-Tass, the copyright laws of two different countries can apply in the same case:

There is also no impediment to the application of the law of the United Kingdom by a United States court, where, as here, there is personal jurisdiction over the defendant.

A number of authorities and commentators have stated that the exercise of subject matter jurisdiction is appropriate in cases of foreign copyright infringement. In a decision by this Court, cited by the BBC, Armstrong v. Virgin Records, Ltd., 91 F. Supp. 2d 628, 637 (S.D.N.Y. 2000), Judge Sweet accepted the rule as stated by both of the leading copyright scholars, and as previously adopted by this Court:

Id.; citing; Nimmer at § 17.03; 3 P. Goldstein, Copyright § 16.2 (2000); see also London Film Productions Ltd. v. Intercontinental Communications, Inc., 580 F. Supp. 47, 49 (S.D.N.Y. 1984).

In the case here, the infringements are clearly transitory. The BBC copied portions of the Work in New York for the purpose of a further unauthorized use in the United Kingdom. Accordingly, because there has not been, and cannot be, any challenge to personal jurisdiction over the BBC, this Court should apply each of the laws which the BBC has violated, including that of the United Kingdom.

It is a well-established tenet of the doctrine of forum non conveniens that where a party moves, on the grounds of its alleged inconvenience, to dismiss the case of a United States citizen suing in his home jurisdiction, the motion should not be granted "except upon a clear showing of facts which… establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience...." Koster, 330 U.S. at 524 ("a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown"). Indeed, "Courts should require positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest, before exercising any such discretion to deny a citizen access to the courts of this country." Founding Church of Scientology v. Verlag, 536 F.2d 429, 435 (D.C. Cir. 1976), quoting Burt v. Isthmus Development Co., 218 F.2d 353, 357 (5th Cir. 1955), cert. denied, 349 U.S. 922 (1956); see also Howe v. Goldcorp Invest., Ltd, 946 F.2d 944, 950 (1991) (defendant must show "serious unfairness" before a plaintiff's choice of forum will be disturbed) cert.

denied, 502 U.S. 1095 (1992), citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 259, 102 S.Ct. 252 (1981).

This dispute involves the redress of grievances on the part of an American citizen in his home forum, against a foreign corporation that not only does business in New York, but misappropriated the Plaintiff’s Work in New York. This is an American controversy that should be resolved in an American court. The BBC has not even begun to establish any "oppression" and "vexation" that it would suffer by litigating this case here, much less any oppression and vexation that is "out of all proportion" to the benefits of the Plaintiff’s choice to litigate in the city where he and his family reside and are domiciled, and where the BBC copied his music and voice.

The doctrine of forum non conveniens is based on the Supreme Court decisions in the companion cases of Koster, 330 U.S. 518, and Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839 (1947). In these decisions, the Supreme Court set forth the analysis this Court must consider when deciding such a motion. At the outset, this court must find that there is an adequate alternative forum. The Court must then conduct a balancing test of private and public interests set forth in Gilbert to assist in a determination of whether this is one of the "rare" cases with "extreme circumstances" that could justify disturbing a plaintiff's choice of his home forum. In the case here, as discussed below, the BBC has established neither the existence of an adequate alternative forum, nor any of the requisite "extreme circumstances." Its motion therefore should be denied.

The financial constraints on the Plaintiff in this case make the United Kingdom an inadequate alternative forum. See McKrell v. Penta, 1989 U.S. Dist. LEXIS 10458 (S.D.N.Y. 1989) (where plaintiff’s financial status prevented her from litigating in a foreign forum, the plaintiff did not have an adequate alternative forum).

The expense to the Plaintiff of bringing his case in the United Kingdom is so prohibitive as to render his ability to sue there meaningless. The BBC cannot deny that contingency cases such as this one are not permitted in Northern Ireland. McGrory Aff. at ¶ 7. It also cannot seriously dispute the affirmation of one of Britain’s most prominent solicitors, who advises the Court that (a) in order to litigate in England, the Plaintiff could be required to pay many thousands of pounds as security for the fees and expenses of the BBC, and (b) in addition, the Plaintiff’s ability to find solicitors and barristers in England who would prosecute this case against the BBC without requiring upfront payment of their own fees and expenses is by no means certain. Bindman Aff. ¶¶ 4,5.

Unlike the wealthy multinational corporation that misappropriated his intellectual property, the Plaintiff is an individual of modest means who devotes his energies to his family, his job and his band. See Byrne Aff. He cares for his four young children during the day and at night is a manager of a bar in Manhattan that requires his frequent and regular presence. He and his band perform there two nights a week, and his absence from New York for more than six days would disrupt his band’s weekly concert series and disappoint its fans. He relies on the limited income from this work to support his family. Id. at ¶¶ 6 -9.

Additionally, a granting of the BBC’s motion would require the Plaintiff not only to be separated from his family, but also would require him to maintain a second household in the United Kingdom during the course of the trial. This financial strain would be magnified by the fact that he would be out of work for the duration of the trial.

Moreover, if he were required to litigate in Northern Ireland, the Plaintiff’s outspoken political beliefs and high-profile status make it uncertain whether he will be safe, in view of the rampant political violence in that jurisdiction, where many thousands of persons have been killed or injured. Byrne Aff. ¶ 12. Since he may be required to travel to non-republican areas to attend court, his safety will be a constant cause of concern. Id.

In addition, forcing the Plaintiff to litigate this case in an overseas forum will force him to retain new counsel, with whom he does not have a relationship. He has had a long-standing legal relationship with Eamonn Dornan, one of the attorneys of the firm litigating this case. As a result of this relationship, the Plaintiff’s counsel are representing him on a contingency fee basis. Byrne Aff. at ¶¶ 10,11.

The financial barriers confronting the Plaintiff in this case effectively mean that the United Kingdom would be no forum at all -- a result that would constitute a perversion of the forum non conveniens doctrine. See Manu International, S.D. v. Avon Products, Inc., 641 F.2d. 62, 67 (2d Cir. 1981)("it is almost a perversion of forum non conveniens doctrine to remit a plaintiff…to a forum in which, realistically, it will be unable to bring suit"); see also McKrell, supra. For the reasons outlined above, we respectfully submit that the BBC’s motion to dismiss should be denied on that basis alone.

However, even if the Court were to find that an adequate alternative forum exists, such a finding would not be a sufficient basis for granting the BBC’s motion. Indeed, as explained below, the BBC cannot possibly meet its additional burdens of proof, even if it were to prevail in this first step of the forum non conveniens analysis.

Regardless of the existence of an adequate alternative forum, no defendant can prevail on a forum non conveniens motion against a plaintiff suing in his home forum unless that defendant makes "a clear showing" of what the BBC cannot show in this case, namely, extreme oppression or vexation, or administrative and legal problems of the Court which make this forum "inappropriate":

Koster, 330 U.S. at 524.

This burden outlined by the Supreme Court in Koster is even greater where, as here, the plaintiff is a United States citizen. Olympic Corp. v. Societe Generale, 462 F.2d 376, 378 (2d Cir. 1972) ("[i]n any situation, the balance must be very strongly in favor of the defendant, before the plaintiff's choice of forum should be disturbed, . . . and the balance must be even stronger when the plaintiff is an American citizen and the alternative forum is a foreign one").

In Guidi, 203 F.3d 180, the Second Circuit Court of Appeals found that the District Court had abused its discretion in granting a forum non conveniens dismissal of a complaint brought by United States citizens in the Southern District of New York. The Guidi case involved claims by victims and the representatives of individuals killed and/or injured in Egypt at the defendant’s hotel. The Court of Appeals reversed the dismissal of the case, holding that the District Court’s failure to apply the Koster standard and grant significant deference to the plaintiff’s choice of an American forum was unsound. Guidi at 183-85 ("under the standard articulated in Koster, plaintiff’s decision to sue in New York should not be disturbed if that forum is not so oppressive and vexatious to IHC as to overwhelm the convenience to plaintiffs of suing in their home forum"); see also Wilcox v. Holiday Inn, 1998 U.S. Dist. LEXIS 3105, *10 (S.D.N.Y. 1998) (although injury occurred in foreign forum, court denied forum non conveniens motion where no proof that proceeding in plaintiff’s home forum was so oppressive so as to overcome plaintiff’s convenience).

The Plaintiff here, like the plaintiffs in Guidi and Wilcox, is an American citizen of modest means. He has lived in New York City his entire life. He did not place himself in a position where he had any expectation that he would be required to litigate in a foreign forum. Like the plaintiff in Guidi, and unlike the plaintiffs in decisions cited by the BBC (BBC Mem. at 25-29), the Plaintiff here has not been: (1) transacting business with a foreign corporation in a foreign country and injured by an incident in that jurisdiction, (2) involved in a dispute over the workings of a foreign corporation, (3) contracting with and/or working for a foreign company for services to be rendered in a foreign country, (4) investing money in foreign entities for investment purposes, or (5) expecting, as a foreign national, to be required to litigate in foreign courts.

In contrast to the Plaintiff, the BBC is a multinational private corporation that does business and has offices in countries all over the world, including the United States. It has 23,000 employees at its command, worldwide, and an annual budget greater than the Gross National Product of many countries. It has one or more offices in New York City. Fila Aff. Like most multinational corporations, it is likely to have corporate apartments for its constantly shifting personnel. The BBC also has a longstanding relationship with its New York City law firm and has previously litigated in New York. It should be ready in all respects to proceed with this case in the Southern District. Indeed, a Lexis search reveals that the BBC has litigated cases in the United States at least 6 times, including at least 2 cases in this District (not including cases which did not result in decisions reported by Lexis).

In yet another decision which points to a denial of the BBC’s motion, Nationsbank of Florida v. Banco Exterior de Espana, 867 F. Supp. 167, 172-173 (S.D.N.Y. 1994), this Court denied the forum non conveniens motion of a Spanish company doing business in New York, even though the plaintiff was a Florida bank. Noting that any federal district court is a home forum for an American citizen and or corporation, the Court weighed the fact that the plaintiff had no contacts in Spain, such that it would be onerous for the Plaintiff to be required to litigate there. The Court further considered the fact that the defendant was doing business in New York, such that any inconvenience to the defendant was far outweighed by the possible detriment to the plaintiff if it were forced to sue in a foreign forum.

In the situation here, like the one presented in Nationsbank, the defendant does business regularly in New York. Fila Aff. Like the plaintiff in Nationsbank, the Plaintiff here would be faced with an onerous burden if he were required to sue overseas. The Plaintiff here has no contacts in England, just as the plaintiff in Nationsbank had no contacts in Spain. The Plaintiff here also cannot possibly file suit in Northern Ireland, due to the unavailability of contingent fee arrangements, on top of the fact that such a suit would pose a risk to his physical security. Accordingly, as in Nationsbank, any inconvenience which the BBC might have to bear in litigating here, where it has offices and conducts business, would be far outweighed by the burden which would be imposed by forcing the Plaintiff to litigate overseas.

The BBC’s inability to prove that it would suffer "oppression" and "vexation" which would be "out of all proportion" to the convenience of the Plaintiff in litigating in his home forum is further demonstrated by a balancing of the private and public interest factors delineated by the Supreme Court in Gilbert, 330 U.S. at 508, as discussed below.

The Supreme Court, in Gilbert, identified for consideration the following private interest factors, half of which favor the Plaintiff’s position, and the other half of which do not apply to this case: (i) "the parties' relative ease of access to sources of proof; (ii) the availability of compulsory process for unwilling witnesses; (iii) the cost of obtaining the attendance of willing witnesses; (iv) the possibility of view of premises, (v) enforceability of a possible judgment; and (vi) other practical problems that could make the trial protracted, difficult, and

costly." Murray v. British Broadcasting, Corp., 81 F.3d 287, 294 (2d Cir. 1996) (citing Gilbert, 330 U.S. at 508).

The first factor, involving access to evidence, has no significant applicability here. There are relevant documents on both sides of the Atlantic. Documents concerning the BBC’s New York conduct in copying the Plaintiff’s Work presumably are located at Radio Free Eireann in Manhattan. These would include tapes of the radio program and any logs, notes, or other records concerning the BBC’s visit to the studio. Likewise, the documents of the Plaintiff’s two producer experts, including documents that could bolster their expert opinions, are located here. The same is true for documents concerning the Plaintiff’s reputation, which are relevant to his moral rights and "passing off" claims. As for the BBC’s documents located overseas, none of which have been identified by the BBC in its motion, their location would not be a significant factor, even if relevant documents were not also located in New York as discussed above.

Both this Court and the Second Circuit Court have recognized that in this modern age of technology, when documents can be scanned and transmitted overseas in an instant, or copied at high speeds and sent across the Atlantic by overnight courier, the location of documentary evidence simply cannot be dispositive. In Re Livent Inc. Securities Litigation, 78 F. Supp. 2d. 194, 211 (S.D.N.Y. 1999); see also Manu Intern., S.A., v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981) ("the increased speed of travel and communication... makes... no forum as inconvenient [today] as it was in 1947"), quoting Fitzgerald v. Texaco, Inc., 521 F.2d 448, 457 (2d Cir. 1975), cert. denied, 423 U.S. 1052. Moreover, in this case the defendant is a multinational communications corporation that has offices in New York and does business all over the world. If the BBC is able to transmit daily news and information to remote villages in Southeast Asia, we submit that sending documentary evidence from one media capitol to another is at worst a minor inconvenience. The BBC, with its annual budget in excess of $4 billion and 23,000 employees, cannot seriously complain about any financial hardship or lack of personnel.

Turning to the second factor, the location of "unwilling" witnesses, this is a factor that, if it has any relevance at all, favors the Plaintiff’s choice of forum. The BBC has failed to identify any such witnesses. In fact, there are over a dozen witnesses in New York who might be "unwilling" or unable to travel to the United Kingdom for the trial of this case. These include, but are not limited to, the personnel at Radio Free Eireann who witnessed the BBC’s conduct here, the Plaintiff’s two producer experts, the co-author and co-owner of the Work at issue, and the Plaintiffs’ bandmates and colleagues who intend to testify on the subject of Byrne’s reputation, his history of refusing to be associated with British companies, and his previous public criticism of the BBC. Dornan Aff. ¶¶ 11-14.

With regard to the third factor, namely, the cost of obtaining the attendance of willing witnesses, this also weighs in favor of the Plaintiff. Although it is the BBC that is the movant and accordingly has the burden of proof on this motion, all of the witnesses that the BBC has identified are BBC employees over whom the BBC has control. The BBC has not asserted in its pleadings that the cost of obtaining the attendance of its willing witnesses would be more than the cost to the Plaintiff to transport his witnesses to the United Kingdom, or that the cost to the BBC to transport its witnesses would be prohibitive.

With regard to the BBC’s argument that the Plaintiff’s goal in this case is an indictment of the British government, such there may be a need to call government officials as witnesses (BBC Mem. at 9), this is a red herring. This case will not determine the rightfulness or wrongfulness of British Government conduct in Northern Ireland or anywhere else. Even the question of whether or not the BBC was right or wrong in its reporting on such conduct is not at issue. What is at issue in the Plaintiff’s moral rights and "passing off" claims, and in his opposition to the fair use defense, is whether the public reputation of the BBC and its coverage of the Northern Ireland conflict, at least among the audience for the Plaintiff’s music and message, has been such that the BBC’s association of the Plaintiff with itself, its Documentary, and its point of view was derogatory and damaging to the Plaintiff.

This is a matter that should be determined by a jury on the basis of expert testimony. The only expert on these issues retained thus far, the Plaintiff’s expert Martin Dillon, a veteran BBC Northern Ireland producer who is perhaps the world’s leading authority on Northern Ireland, now lives in New York. See Dillon Aff.

The fourth and fifth Gilbert factors, the possibility of view of premises, and the enforceability of a possible judgment, are not applicable to this proceeding, as the BBC apparently concedes (by not addressing them).

The sixth and final private factor, which includes the question of whether the trial of this dispute in one forum or another would be prohibitively expensive or difficult, weighs overwhelmingly in the Plaintiff’s favor. Through his own affidavit and the affirmation of two of the most distinguished solicitors in the United Kingdom, the Plaintiff has demonstrated that because of his financial situation, a requirement that he refile his claims in the United Kingdom would constitute the death knell of his case against the BBC. See Byrne, Bindman and McGrory Affs.

In a series of cases, courts in this Circuit and other Circuits have held that the financial resources of each party should be considered in deciding a forum non conveniens motion. See In re TWA Air Crash, 65 F. Supp. 2d. 207, 217 (S.D.N.Y 1999) (absence of contingent fee arrangements in a foreign jurisdiction is a permissible factor to weigh in the forum non conveniens analysis); McKrell v. Penta Hotels, 1989 U.S. Dist. LEXIS 10458 (S.D.N.Y. 1989.); (affirming dismissal of forum non conveniens motion where plaintiff’s financial status prevented her from litigating in a foreign forum); Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 346 (8^th Cir. 1983.), cert denied, 464 U.S. 1042 (1984) (forum non conveniens dismissal reversed where, among other factors, American plaintiff would be unable to sue in foreign forum because of lack of a contingency fee system, would have to post bond because she was a foreigner and would not have a right to a jury trial); Wilson v. Humphreys (Cayman) Ltd., 916 F.2d. 1239, 1246-47 (7^th Cir. 1990) ("courts must be sensitive to the practical problems likely to be encountered by plaintiffs in litigating their claim, especially when the alternative forum is in a foreign country"), cert. denied, 499 U.S. 947 (1991); Reid-Walen v. Hansen, 933 F.2d. 1390, n.11, 1398, 1399 (8^th Cir. 1991); (as part of analysis of private interests, court must consider practical problems, financial and otherwise, encountered by plaintiffs); Rudetsky v. O’Dowd, 660 F.Supp. 341, 346 (E.D.N.Y. 1987); (inability of plaintiff to retain counsel in alternative forum is a significant factor counseling against dismissal); Irish Nat. Ins. Co., Ltd. v. Aer Lingus Teoranta, 739 F.2d 90, 91 (2d Cir. 1984) (when a foreign jurisdiction "has imposed such severe monetary limitations on recovery as to eliminate the likelihood that the case will [ever] be tried a court may justifiably take into account the realities of the foreign legal system").

This Court also has held that the absence of jury trials in the United Kingdom weighs against dismissal. Breindel & Fersteneig v. WRD, 1996 U.S. Dist. LEXIS 10432 *13 (S.D.N.Y. 1996) (Sidney H. Stein, J.) ("the aspects of the British system that [plaintiff] contends render it inadequate -- especially the absence of trial by jury -- while insufficient to render it ‘wholly devoid of due process,’... also weigh on the side of denying the motion to dismiss"). This holding is supported by decisions of at least three Circuit Courts. Nowak v. Tak How Investments, Ltd., 94 F.3d 708, 720 (1st Cir. 1996); Reid-Walen, 933 F.2d. at 1399 (8^th Cir. 1991); Wilson, 916 F.2d at 1246 (7th Cir. 1990).

In the case here, the BBC has not even begun to demonstrate how litigation here would be significantly more costly, difficult or protracted than a litigation in the United Kingdom, much less can it show any extreme "oppression" and "vexation" in that regard which could outweigh the burdens that the Plaintiff would suffer if he were required to litigate in England or Northern Ireland.

In short, a weighing of the relevant private interest factors in this case leads inexorably to the conclusion that any inconvenience to the BBC would be minor in comparison with the hardship to the Plaintiff that the BBC seeks to impose by means of this motion.

2. The Public Interest Factors Also Favor the Plaintiff

The Gilbert Court also set forth another series of factors to consider in evaluating the public interest a forum may have in hearing or not hearing the case at issue. These factors include: (i) administrative difficulties resulting from court congestion in the district; (ii) the imposition of jury duty on jurors in a district having no relation to the litigation; (iii) the court's interest in having local disputes decided locally; and (iv) the familiarity of the trial court with the applicable law. 330 U.S. at 508-09.

As in the case of the private factors, those public factors that apply also heavily favor the Plaintiff. This case involves the misappropriation, in the United States, by a foreign corporation, of the intellectual property of a United States citizen who is a life-long resident of New York City. The United States has a clear interest in providing a forum for remedies against the unauthorized taking of the intellectual property of American citizens for exploitation abroad. It would set a dangerous precedent if foreign corporations were able to use the forum non conveniens doctrine to avoid defending their conduct in the very country where the unauthorized taking took place. As this Court stated in Gordon v. Long Bay Ltd., 1995 U.S. Dist. LEXIS 11721 (S.D.N.Y. 1995) (Sidney H. Stein, J.), "courts of the United States have an interest in keeping their doors open for an American plaintiff."

The State and City of New York also have a powerful interest in ensuring that one of their citizens has a forum to redress grievances such as those suffered by the Plaintiff. As this Court repeatedly has held, "[t]he community served by this court has a clear interest in providing a forum in which one of its citizens may seek to redress a wrong." Flynn v. General Motors, 141 F.R.D. 5, 10 (E.D.N.Y. 1992), quoting Fiacco v. United Tech. Corp., 524 F. Supp. 858, 861 (S.D.N.Y. 1981).

Because New York has a strong interest in providing a forum for this case, it naturally follows that there will be no imposition upon the public interest in allowing a jury trial here.

With regard to the public interest factor concerning court congestion, the BBC has made no argument, much less submitted any evidence, that the courts of London are any more or less congested than those in the Southern District.

Finally, even though part of this dispute involves violations of the law of the United Kingdom, this Court has held, with support from the Second Circuit Court, that a need to apply British law is not a significant consideration in the forum non conveniens context. Long Bay at 10 ("the application of the law of a jurisdiction with substantial English common law antecedents, if necessary, does not impose a significant burden on this Court"); see Boosey & Hawkes Music Pub. Ltd. v. Walt Disney Co., 145 F.3d 481, 492 (2d. Cir. 1998) ("the application of foreign law does not impose a significant burden on this court"); Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A., 232 F. Supp. 433, 443 (S.D.N.Y. 1964) ("the task of deciding foreign law is a chore that the federal courts are called upon to perform with regularity").

In conclusion, both sets of Gilbert factors point to New York as the appropriate venue. A granting of this motion would allow the BBC to "complicate the suit, delay it, and render it more expensive." Boosey, 145 F.3d at 491.

The BBC wistfully has instructed the Court that "all roads lead to Brittania." BBC Mem. at 34. However, in view of the United States Supreme Court’s repeated holdings in deference to a plaintiff’s choice of his or her home forum, we submit that there is another aphorism which is more apt: "There’s no place like home."

On June 14, 2000, more than two weeks in advance of the due date for the BBC’s motion to dismiss, counsel for the Plaintiff wrote to counsel for the BBC, discussing a decision which counsel had mentioned to the Court (at a status conference), and asking counsel to provide citations of "other cases on which you intend to attempt to rely," noting that "we promptly will consider the possibility of voluntarily dismissing those claims if they can be shown to be legally unsustainable." Dornan Aff. at Exh. D.

As was their right, counsel for the BBC did not provide any citations as requested, nor did they otherwise respond to the letter of the Plaintiff’s counsel. Instead, the BBC later filed its motion to dismiss, citing multiple cases (not including the previously mentioned case) for the proposition that the Plaintiff’s defamation claims should be dismissed. BBC Mem. at 11-23.

Although we believe that the Plaintiff’s defamation claims are valid, we are persuaded that their likelihood of success is insufficient to warrant their further prosecution, given the applicable constitutional law. Accordingly, the Plaintiff voluntarily has dismissed his defamation claims with the consent of the BBC, pursuant to Fed.R.Civ.P. 41(a)(1). Dornan Aff. at Ex. E.

For all of the above reasons, and for those discussed in the accompanying affidavits and Local Rule 56.1 Statement, the BBC’s motion should be denied in its entirety.

Respectfully submitted,

THE LAW OFFICES OF
  RUSSELL ALEXANDER SMITH, P.C.

By: _______________________________
Russell A. Smith (RS 8873)
Eamonn Dornan
Melinda Rubin
Brean Shea

488 Madison Avenue, Ninth Floor
New York, New York 10022
(212) 460-5518

Counsel for Plaintiff Christopher Byrne