Smith v Casey, No. 1:12-cv-23795 (S.D. Fla. Apr. 25, 2013) [Doc. 84].
The Court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state-law claim for breach of contract relating to royalties, and "declines Plaintiff’s ill-formulated request for declaratory relief."
Plaintiff's copyright claim was previously dismissed, leaving only a state-law breach of contract claim and a request for declaratory relief. The Court found that because "Plaintiff’s timely claims for breach-of-contract will not become time-barred as a result of this Court’s dismissal without prejudice", it would not exercise supplemental jurisdiction over the state law claim. Moreover, there was no diversity, and very little discovery had taken place. The Court also rejected the declaratory judgment claim, stating it was dangerously close to a request for issuance of an advisory opinion.
April 26, 2013
April 25, 2013
Congress To Review Copyright Law
The Chairman of the House Judiciary Committee, Bob Goodlatte (R-Va.), announced that the committee "will conduct a comprehensive review of U.S. copyright law over the coming months." Continuing, the Chairman stated: "The goal of these hearings will be to determine whether the laws are still working in the digital age." Press release here.
April 24, 2013
DMCA Safe Harbor Does Not Apply To Pre-1972 Recordings, N.Y. Appellate Court
UMG Recordings, Inc. v. Escape Media Group, Inc., 2013 NY Slip Op 02702 (1st Dep't Apr. 23, 2013). Decision here.
Plaintiff is UMG, and defendant is the service "Grooveshark" As described by the Court, "Users of Grooveshark can upload audio files (typically songs) to an archive maintained on defendant's computer servers, and other users can search those servers and stream recordings to their own computers or other electronic devices. "
In its answer, Grooveshark asserted as its fourteenth affirmative defense that pre-1972 recordings sat within the safe harbor of section 512(c) of the DMCA. UMG moved, inter alia, to dismiss that defense pursuant to CPLR 3211(b). The motion court denied plaintiff's motion, relying heavily on Capitol Records, Inc. v MP3tunes, LLC (821 F Supp 2d 627 [SDNY 2011]), in which the United States district court tackled precisely the same issue and found that the DMCA embraced sound recordings fixed before February 15, 1972. The Appellate Court reversed.
First, the Court found that applying the DMCA to pre-1972 recordings would violate Section 301(c) of the Copyright Act. "Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG's rights, and an implicit modification of the plain language of section 301(c). The word "limit" in 301(c) is unqualified, so defendant's argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act." Continuing, the Court found "there is no reason to conclude that Congress recognized a limitation on common-law copyrights posed by the DMCA but intended to implicitly dilute section 301(c) nonetheless. ... Congress explicitly, and very clearly, separated the universe of sound recordings into two categories, one for works "fixed" after February 15, 1972, to which it granted federal copyright protection, and one for those fixed before that date, to which it did not. Defendant has pointed to nothing in the Copyright Act or its legislative history which prevents us from concluding that Congress meant to apply the DMCA to the former category, but not the latter."
Second, the Court rejected Grooveshark's argument that the very purpose of the DMCA will be thwarted if it is deemed not to apply to the pre-1972 recordings. "The statutory language at issue involves two equally clear and compelling Congressional priorities: to promote the existence of intellectual property on the Internet, and to insulate pre-1972 sound recordings from federal regulation. As stated above, it is not unreasonable, based on the statutory language and the context in which the DMCA was enacted, to reconcile the two by concluding that Congress intended for the DMCA only to apply to post-1972 works."
Plaintiff is UMG, and defendant is the service "Grooveshark" As described by the Court, "Users of Grooveshark can upload audio files (typically songs) to an archive maintained on defendant's computer servers, and other users can search those servers and stream recordings to their own computers or other electronic devices. "
In its answer, Grooveshark asserted as its fourteenth affirmative defense that pre-1972 recordings sat within the safe harbor of section 512(c) of the DMCA. UMG moved, inter alia, to dismiss that defense pursuant to CPLR 3211(b). The motion court denied plaintiff's motion, relying heavily on Capitol Records, Inc. v MP3tunes, LLC (821 F Supp 2d 627 [SDNY 2011]), in which the United States district court tackled precisely the same issue and found that the DMCA embraced sound recordings fixed before February 15, 1972. The Appellate Court reversed.
First, the Court found that applying the DMCA to pre-1972 recordings would violate Section 301(c) of the Copyright Act. "Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG's rights, and an implicit modification of the plain language of section 301(c). The word "limit" in 301(c) is unqualified, so defendant's argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act." Continuing, the Court found "there is no reason to conclude that Congress recognized a limitation on common-law copyrights posed by the DMCA but intended to implicitly dilute section 301(c) nonetheless. ... Congress explicitly, and very clearly, separated the universe of sound recordings into two categories, one for works "fixed" after February 15, 1972, to which it granted federal copyright protection, and one for those fixed before that date, to which it did not. Defendant has pointed to nothing in the Copyright Act or its legislative history which prevents us from concluding that Congress meant to apply the DMCA to the former category, but not the latter."
Second, the Court rejected Grooveshark's argument that the very purpose of the DMCA will be thwarted if it is deemed not to apply to the pre-1972 recordings. "The statutory language at issue involves two equally clear and compelling Congressional priorities: to promote the existence of intellectual property on the Internet, and to insulate pre-1972 sound recordings from federal regulation. As stated above, it is not unreasonable, based on the statutory language and the context in which the DMCA was enacted, to reconcile the two by concluding that Congress intended for the DMCA only to apply to post-1972 works."
April 22, 2013
Raising Capital By Selling Royalty Income
Web Helps Musicians Sell Shares of Royalties
Web sites like the Royalty Exchange allows musicians to sell parts of their royalty income to investors and define which rights to sell and which to retain.
Article here. Ben Sisario, "Web Helps Musicians Sell Shares of Royalties", 4/22/2013 NYTimes (Business).
Capitol's Motion To Dismiss Class Action Denied
Davis v. Capitol Records, LLC, No. 4:12-cv-01602-YGR (N.D. Cal. filed 04/18/13) [Doc. 73].
Plaintiff brought the action as a member of the music group, “The Motels,” and a shareholder, beneficiary, and/or successor-in-interest of the now-dissolved The Motels Music Corporation, Inc. She brought the complaint alleging a nationwide class action for breach of standard recording contracts and for statutory violations of California law against Defendant Capitol Records, LLC (“Capitol”). Plaintiff alleged that Capitol failed to account properly for royalties stemming from the licensing of musical performances or recordings produced by Plaintiff and putative class members under contract with Capitol, which were then were utilized by digital content providers, such as music download providers, music streaming providers, and ringtone providers, for digital download, streaming and distribution. Capitol moved to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
First, Capitol argued that the claims were time-barred under the parties' agreement relating to objecting to royalty statements. However, the Court found that Plaintiff's allegations "arguably support a basis for tolling of the contractual limitations period." (Emphasis added). Accordingly, the motion to dismiss on limitations grounds was denied.
Second, Capitol moved to dismiss Plaintiff's claim for declaratory relief as duplicative of her claim for
breach of contract. The Court held that it could not determine, as a matter of law, that declaratory relief would be duplicative or otherwise inappropriate such that it should be dismissed at the pleading stage.
Third, Capitol moved to dismiss Plaintiff;s claim for breach of the implied covenant of good faith and fair dealing on the grounds that it is duplicative of her breach of contract claim. The Court disagreed.
Fourth, Plaintiff alleged a claim for violation of California Business & Professions Code section 17200, California’s Unfair Competition Law (“UCL”), based upon all three prongs of the statute – that is, unfair, unlawful, and fraudulent conduct. Capitol sought to dismiss the claim to the extent it is based upon either unlawful or fraudulent conduct. As to the fraud prong, the Court found that Plaintiff's pleadings contained sufficient particularity to survive. As to the unlawful prong, the Court found that, "Where, as here, the complaint alleges systemic conduct meant to breach the terms of, or deny the benefits of, agreements between the defendant and a group of similarly situated parties, it is sufficient state a claim for an unfair business practice in violation of the UCL."
Fifth, the Court struck Plaintiff's demand for punitive damages.
Plaintiff brought the action as a member of the music group, “The Motels,” and a shareholder, beneficiary, and/or successor-in-interest of the now-dissolved The Motels Music Corporation, Inc. She brought the complaint alleging a nationwide class action for breach of standard recording contracts and for statutory violations of California law against Defendant Capitol Records, LLC (“Capitol”). Plaintiff alleged that Capitol failed to account properly for royalties stemming from the licensing of musical performances or recordings produced by Plaintiff and putative class members under contract with Capitol, which were then were utilized by digital content providers, such as music download providers, music streaming providers, and ringtone providers, for digital download, streaming and distribution. Capitol moved to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
First, Capitol argued that the claims were time-barred under the parties' agreement relating to objecting to royalty statements. However, the Court found that Plaintiff's allegations "arguably support a basis for tolling of the contractual limitations period." (Emphasis added). Accordingly, the motion to dismiss on limitations grounds was denied.
Second, Capitol moved to dismiss Plaintiff's claim for declaratory relief as duplicative of her claim for
breach of contract. The Court held that it could not determine, as a matter of law, that declaratory relief would be duplicative or otherwise inappropriate such that it should be dismissed at the pleading stage.
Third, Capitol moved to dismiss Plaintiff;s claim for breach of the implied covenant of good faith and fair dealing on the grounds that it is duplicative of her breach of contract claim. The Court disagreed.
Fourth, Plaintiff alleged a claim for violation of California Business & Professions Code section 17200, California’s Unfair Competition Law (“UCL”), based upon all three prongs of the statute – that is, unfair, unlawful, and fraudulent conduct. Capitol sought to dismiss the claim to the extent it is based upon either unlawful or fraudulent conduct. As to the fraud prong, the Court found that Plaintiff's pleadings contained sufficient particularity to survive. As to the unlawful prong, the Court found that, "Where, as here, the complaint alleges systemic conduct meant to breach the terms of, or deny the benefits of, agreements between the defendant and a group of similarly situated parties, it is sufficient state a claim for an unfair business practice in violation of the UCL."
Fifth, the Court struck Plaintiff's demand for punitive damages.
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