Flo & Eddie, Inc. v. SiriusXM, No. 13-23182-CIV-GAYLES/TURNOFF (S.D. Fla. dated June 22, 2015).
A Florida federal court granted defendant Sirius summary judgment as to liability on plaintiff Flo & Eddie's (the Turtle's) common-law copyright infringement claims, although New York and California courts have found differently. The Florida federal court observed that Florida is different from New York and California, inasmuch as as there is no Florida legislation covering sound recordings nor is there a bevy of case law interpreting common law copyright related to the arts. "The Court finds that the issue of whether copyright protection for pre- 1972 rec ordings should include the exclusive right to public performance is for the Florida legislature." Accordingly, the Court found that Florida common law did not provie plaintiff with the exclusive right of public performance in the Turtles' sound recordings. Further, the Court found that back-up and buffer copies made by Sirius were not unlawful reproductions. Because the Court found that Sirius had not infringed any of Plaintiff's copyrights, the Court also dismissed plaintiff's related claims for unfair competition, conversion and civil theft (all of which were based on alleged copyright infiringement).
June 23, 2015
June 16, 2015
Third-Party Service Provider Subject To "Grooveshark" Injunction
Arista Records, LLC v. Tkach, No. 15-CV-3701 (AJN), 2015 BL 182234 (S.D.N.Y. June 03, 2015).
A third-party service provider is bound by and subject to the TRO and preliminary injunction in the Grooveshark case, finds Judge Nathan in the Southern District of New York. The Court concluded that CloudFlare wasin active concert or participation with the Defendants based on the following facts: (1) CloudFlare admittedly owns and operates the authoritative domain name server for the new Grooveshark sites, which connects users entering the Grooveshark domain names into a web browser to the specific IP address associated with that site; (2) CloudFlare provides other services designed to improve the performance of the new Grooveshark sites; and (3) CloudFlare began providing its services to grooveshark.li after it acknowledged receipt of the TRO. Furthermore, for the purpose of determining whether CloudFlare is in active concert or participation with the Defendants, it is not determinative that CloudFlare's services are automated, that CloudFlare lacks a specific desire or motivation to help the Defendants violate the injunction, or that the Grooveshark sites would continue to exist even without CloudFlare's assistance. The Court thus hereby concludes and clarifies that CloudFlare was bound by the TRO and is now bound by the existing preliminary injunction.
A third-party service provider is bound by and subject to the TRO and preliminary injunction in the Grooveshark case, finds Judge Nathan in the Southern District of New York. The Court concluded that CloudFlare wasin active concert or participation with the Defendants based on the following facts: (1) CloudFlare admittedly owns and operates the authoritative domain name server for the new Grooveshark sites, which connects users entering the Grooveshark domain names into a web browser to the specific IP address associated with that site; (2) CloudFlare provides other services designed to improve the performance of the new Grooveshark sites; and (3) CloudFlare began providing its services to grooveshark.li after it acknowledged receipt of the TRO. Furthermore, for the purpose of determining whether CloudFlare is in active concert or participation with the Defendants, it is not determinative that CloudFlare's services are automated, that CloudFlare lacks a specific desire or motivation to help the Defendants violate the injunction, or that the Grooveshark sites would continue to exist even without CloudFlare's assistance. The Court thus hereby concludes and clarifies that CloudFlare was bound by the TRO and is now bound by the existing preliminary injunction.
Beastie Boys Awarded Attorneys Fees For Copyright Infringement, But Reduced Amount
Beastie Boys v. Monster Engergy, 1:12-cv-06065-PAE (SDNY filed 06/15/15) [Doc. 216].
After succeeding against Monster Energy Drinks at trial, the Court found that the Beastie Boys were entitled to attorney's fees for Monster's willful copyright infringement but not in connection with the Lanham Act violation, which the Court found was not "exceptional". Additionally, the Court significantly reduced the attorney's fees recoverable to approximately $660,000, from the over $2 million requested.
After succeeding against Monster Energy Drinks at trial, the Court found that the Beastie Boys were entitled to attorney's fees for Monster's willful copyright infringement but not in connection with the Lanham Act violation, which the Court found was not "exceptional". Additionally, the Court significantly reduced the attorney's fees recoverable to approximately $660,000, from the over $2 million requested.
June 4, 2015
Big Pimpin Suit Continues With Triable Issues Of Fact
Fahmy v. Jay-Z et al., No. 2:07-cv-05715 (C.D. Cal. May 27, 2015).
In the copyright infringement action concerning Jay-Z's song Big Pimpin', the Court denied plaintiff's motion for partial summary judgment seeking to dismiss defendant's "license" affirmative defense. The Court concluded that there were triable issues of fact as to whether plaintiff conveyed any performance rights he owned in the infringed song. The Court also concluded that there was a genuine dispute of material fact as to whether defendants received a license to publicly perform the song as part of Big Pimpin' through their asserted chain of title or as a result of BMI blanket licenses.
In the copyright infringement action concerning Jay-Z's song Big Pimpin', the Court denied plaintiff's motion for partial summary judgment seeking to dismiss defendant's "license" affirmative defense. The Court concluded that there were triable issues of fact as to whether plaintiff conveyed any performance rights he owned in the infringed song. The Court also concluded that there was a genuine dispute of material fact as to whether defendants received a license to publicly perform the song as part of Big Pimpin' through their asserted chain of title or as a result of BMI blanket licenses.
May 28, 2015
Class Certification Granted In Turtles' Pre-'72 Copyright Case Against Sirius
Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-5693 (C.D. Cal. 5/27/2015).
In the copyright infringement action against Sirius satellite radio alleging copyright infringement of pre-1972 sound recordings, the the District Court granted plaintiff's motion for class certification. Under Fed. R. Civ. P. 23, the plaintiff must establish certain requirements that are often referred t as numerosity, commonality,
typicality, adequacy, predominance, and superiority.
As a threshold matter, the Court found Defendants' argument unpersuasive that class certification was improper because there had already been a finding of liability at summary judgment as to the named plaintiffs. Sirius argued that class certification would violate "the one-way intervention rule", which is the intervention
of a plaintiff in a class action after an adjudication favoring the class has taken place. Such intervention is termed ‘one way’ because the plaintiff would not otherwise be bound by an adjudication in favor of the defendant occurring at that point in the litigation. The Court found that Sirius had waived the protection of this rule because Sirius XM requested early summary judgment briefing, failed to raise a firm pre-judgment objection to Plaintiff's motion, and actually decided to adopt Plaintiff's motion as its own early liability decision vehicle.
The Court then turned to the Rule 23 class certification requirements. First, it found that class members -- owners of pre-72 sound recordings -- were ascertainable by turning to a number of sources who license such sound recordings, and Sirius has a list of all of the songs it had played. Next, the Court found that the proposed class of hundreds, if not thousands, of owners in sound recordings satisfied the numerosity requirement. Typicality was also satisfied because the members of the proposed class will each claim injury based on Sirius performing their pre-1972 recordings without authorization. Sirius XM’s unauthorized
performance of plaintiff's recordings, the wrongful conduct at issue in this litigation, is not unique to these plaintiffs; rather, it is consistent with Sirius XM’s general practice as to pre-1972 recordings. Next, the Court found commonality and adequacy of the named plaintiff's representation of the class. The Court then considered the remainder of the Rule 23 requirements, and found them satisfied. In short, the Court concluded that a class action is superior to individual litigation to the fair and efficient adjudication of the controversy.
In the copyright infringement action against Sirius satellite radio alleging copyright infringement of pre-1972 sound recordings, the the District Court granted plaintiff's motion for class certification. Under Fed. R. Civ. P. 23, the plaintiff must establish certain requirements that are often referred t as numerosity, commonality,
typicality, adequacy, predominance, and superiority.
As a threshold matter, the Court found Defendants' argument unpersuasive that class certification was improper because there had already been a finding of liability at summary judgment as to the named plaintiffs. Sirius argued that class certification would violate "the one-way intervention rule", which is the intervention
of a plaintiff in a class action after an adjudication favoring the class has taken place. Such intervention is termed ‘one way’ because the plaintiff would not otherwise be bound by an adjudication in favor of the defendant occurring at that point in the litigation. The Court found that Sirius had waived the protection of this rule because Sirius XM requested early summary judgment briefing, failed to raise a firm pre-judgment objection to Plaintiff's motion, and actually decided to adopt Plaintiff's motion as its own early liability decision vehicle.
The Court then turned to the Rule 23 class certification requirements. First, it found that class members -- owners of pre-72 sound recordings -- were ascertainable by turning to a number of sources who license such sound recordings, and Sirius has a list of all of the songs it had played. Next, the Court found that the proposed class of hundreds, if not thousands, of owners in sound recordings satisfied the numerosity requirement. Typicality was also satisfied because the members of the proposed class will each claim injury based on Sirius performing their pre-1972 recordings without authorization. Sirius XM’s unauthorized
performance of plaintiff's recordings, the wrongful conduct at issue in this litigation, is not unique to these plaintiffs; rather, it is consistent with Sirius XM’s general practice as to pre-1972 recordings. Next, the Court found commonality and adequacy of the named plaintiff's representation of the class. The Court then considered the remainder of the Rule 23 requirements, and found them satisfied. In short, the Court concluded that a class action is superior to individual litigation to the fair and efficient adjudication of the controversy.
May 8, 2015
Second Circuit Affirms ASCAP Rate Court In Pandora Dispute Over Partial Withdrawals And License Rate
Pandora Media, Inc. v. ASCAP, 14-1158-cv(L) (2d Cir. May 6, 2015).
The Second Circuit Court of Appeals affirmed the ASCAP "rate court's" decision: (1) granting Pandora summary judgment that the ASCAP consent decree unambiguously precludes partial withdrawals of public performance licensing rights; and (2) setting the rate for the Pandora‐ASCAP license for the period of January 1, 2011 through December 31, 2015 at 1.85% of revenue.
ASCAP contended that publishers may withdraw from ASCAP its right to license their works to certain new media music users (including Pandora) while continuing to license the same works to ASCAP for licensing to other users. The appellate court agreed with the district court’s determination that the plain language of the consent decree unambiguously precludes ASCAP from accepting such partial withdrawals. Also, the Court found that under the circumstances, it was not clearly erroneous for the district court to conclude, given the 6evidence before it, that a rate of 1.85% was reasonable for the years in question.
The Second Circuit Court of Appeals affirmed the ASCAP "rate court's" decision: (1) granting Pandora summary judgment that the ASCAP consent decree unambiguously precludes partial withdrawals of public performance licensing rights; and (2) setting the rate for the Pandora‐ASCAP license for the period of January 1, 2011 through December 31, 2015 at 1.85% of revenue.
ASCAP contended that publishers may withdraw from ASCAP its right to license their works to certain new media music users (including Pandora) while continuing to license the same works to ASCAP for licensing to other users. The appellate court agreed with the district court’s determination that the plain language of the consent decree unambiguously precludes ASCAP from accepting such partial withdrawals. Also, the Court found that under the circumstances, it was not clearly erroneous for the district court to conclude, given the 6evidence before it, that a rate of 1.85% was reasonable for the years in question.
Stairway To Heaven Copyright Infringement Survives Dismissal, Transferred From Philly To Calif.
Skidmore v. Led Zeppelin, 14-cv-03089 (E.D. Pa. filed 05/06/15) [Doc. 54].
Plaintiff alleged Led Zeppelin copied significant portions of its iconic 1971 song “Stairway to Heaven” from plaintiff's copyrighted guitar composition “Taurus,” and that all of the Defendants (the band members, publisher and label) have exploited and continue to exploit “Taurus” as “Stairway to Heaven.” Plaintiff sued all Defendants for direct, contributory, and vicarious copyright infringement and also brought a claim for equitable relief in the form of an order directing Defendants and the Copyright Office to include Plaintiff as a writer of “Stairway to Heaven." Defendants moved to dismiss for lack of jurisdiction and improper venue.
The Court found the individual Defendants (band members) were not subject to either general or specific jurisdiction in Pennsylvania, where the case was filed. Notably, because there is a three-year statute of limitations for copyright claims, the Court found that contacts with Pennsylvania in the 1980s and 1990s were not relevant to the Court's analysis. These Defendants, however, consented to personal jurisdiction and venue in the Central District of California. The Court found a transfer to California to be in the interests of justice.
Plaintiff alleged Led Zeppelin copied significant portions of its iconic 1971 song “Stairway to Heaven” from plaintiff's copyrighted guitar composition “Taurus,” and that all of the Defendants (the band members, publisher and label) have exploited and continue to exploit “Taurus” as “Stairway to Heaven.” Plaintiff sued all Defendants for direct, contributory, and vicarious copyright infringement and also brought a claim for equitable relief in the form of an order directing Defendants and the Copyright Office to include Plaintiff as a writer of “Stairway to Heaven." Defendants moved to dismiss for lack of jurisdiction and improper venue.
The Court found the individual Defendants (band members) were not subject to either general or specific jurisdiction in Pennsylvania, where the case was filed. Notably, because there is a three-year statute of limitations for copyright claims, the Court found that contacts with Pennsylvania in the 1980s and 1990s were not relevant to the Court's analysis. These Defendants, however, consented to personal jurisdiction and venue in the Central District of California. The Court found a transfer to California to be in the interests of justice.
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