Willis v. Scorpio Music, No. 15-cv-1078 (S.D. Cal. order dated Jan. 19, 2016).
In a second lawsuit concerning ownership of various "Village People" compositions, the district court dismissed a 50% owner's claims based on defendant's false claim of authorship, breach of fiduciary duty, and vicarious copyright infringement. As to the false ownership claims, the Court held that plaintiff was barred by the doctrine of res judicata from brining claims that he could have brought in the earlier action. As to the vicarous copyright infringement claim, the court held that the defendant had the right to license the composition and thus there was no infringement. Lastly, the court held that co-owners of a copyright -- though they have a duty to account -- do not have fiduciary duties to one another.
Showing posts with label Vicarious Infringement. Show all posts
Showing posts with label Vicarious Infringement. Show all posts
January 20, 2016
December 30, 2015
Record Company Copyright Claims Against Amway Survive Dismissal
Alticor Inc. v. UMG Recordings, Inc., No. 6:14-cv-542 (M.D. Fla. Dec. 10, 2015).
In a complex dispute between mutliple record companies and Amway concerning alleged direct, vicarious and contributory infringement of pre- and post-'72 sound recordings in over 1,000 videos, the Court dismissed Amway's Rule 12(b)(6) motion to dismiss the record companies counter-claims. First, the Court found that the record companies had adequately alleged violations of their exclusive right of public performance. Amway argued that the "public performance right" applicable to musical compositions and other works was inapplicable to sound recordings; the Court rejected that argument. Second, the Court found that even though the Copyright Act does not conver a "making available" right, the act of making a work available for use of a direct infringer was relevant to the record companies' indirect infringement claims. Third, the Court agreed with Amway that Florida common law does not create a public performance right for pre-72 recordings, but nonetheless held that it would not grant Amway partial relief under Rule 12(b)(6).
In a complex dispute between mutliple record companies and Amway concerning alleged direct, vicarious and contributory infringement of pre- and post-'72 sound recordings in over 1,000 videos, the Court dismissed Amway's Rule 12(b)(6) motion to dismiss the record companies counter-claims. First, the Court found that the record companies had adequately alleged violations of their exclusive right of public performance. Amway argued that the "public performance right" applicable to musical compositions and other works was inapplicable to sound recordings; the Court rejected that argument. Second, the Court found that even though the Copyright Act does not conver a "making available" right, the act of making a work available for use of a direct infringer was relevant to the record companies' indirect infringement claims. Third, the Court agreed with Amway that Florida common law does not create a public performance right for pre-72 recordings, but nonetheless held that it would not grant Amway partial relief under Rule 12(b)(6).
December 3, 2015
Cox Communications Not Protected By DMCA Safe Harbor In Bit-Torrent Case
BMG Rights Management v. Cox Communications, no. 14-1611 (E.D. Va. Dec. 1, 2015).
In an action by the putative owners of 1,400 musical compositions against an internet service provider (Cox) for contributory and vicarious liability based on its users Bit Torrent infringement, the Court held inter alia that the ISP was not protected by the DMCA safe-harbor because it did not terminate access of repeat infringers under appropriate circumstances. The Court found that defendant did not implement a repeat infringer policy before 2012, and after 2012 it did not reasonably implement its policy. Thus, if Plaintiff is successful at trial, it will not be limited in the remedies it seeks.
Other issues the Court addressed was whether Plaintiff had standing (the copyright registrations listed Plaintiff, its predecessor, someone else, or the works were purchased). The Court further found questions of material fact, 1) whether there is evidence of direct infringement by third parties; (2) whether there is evidence of Cox’s contributory infringement; (3) whether there is evidence of Cox’s vicarious liability; and (4) whether BMG failed to mitigate its damages. Lastly, the Court found that the "unclean hands" defense failed as a matter of law.
In an action by the putative owners of 1,400 musical compositions against an internet service provider (Cox) for contributory and vicarious liability based on its users Bit Torrent infringement, the Court held inter alia that the ISP was not protected by the DMCA safe-harbor because it did not terminate access of repeat infringers under appropriate circumstances. The Court found that defendant did not implement a repeat infringer policy before 2012, and after 2012 it did not reasonably implement its policy. Thus, if Plaintiff is successful at trial, it will not be limited in the remedies it seeks.
Other issues the Court addressed was whether Plaintiff had standing (the copyright registrations listed Plaintiff, its predecessor, someone else, or the works were purchased). The Court further found questions of material fact, 1) whether there is evidence of direct infringement by third parties; (2) whether there is evidence of Cox’s contributory infringement; (3) whether there is evidence of Cox’s vicarious liability; and (4) whether BMG failed to mitigate its damages. Lastly, the Court found that the "unclean hands" defense failed as a matter of law.
October 11, 2014
Grooveshark And Its Officers Liable For Copyright Infringment Based On Direct Uploads By Officers And Employees
UMG Recording, Inc. v. Escape Media Group, Inc. No. 1:11-cv-08407-TPG (S.D.N.Y. filed Sep. 29, 2014) [Doc. 100].
This case involved "Grooveshark" and the direct upload of plaintiffs' copyright music by defendant's officers and employees. The Court granted plaintifss' motion for spoliation sanctions, and granted plaintiffs' summary judgment on nearly all of their claims. As to spoliation sanctions, the Court found that defendants acted with a culpable state of mind when they deleted user upload information and relevant source code. Based on the spoliation, the Court found that an individual defendant directly infringed plaintiffs' copyright recordings; however, the Court did not agree with plaintiffs' request that it find 10,000 instances of infringement and instead found that plaintiffs were entitled to judgment as a matter of law that that defendant illegally uploaded a small percentage (144) of the recordings. Similarly, the Court found that the other employees uploaded a much smaller percentage of additional files than requested by plaintiffs.
Turning to the summary judgment motion, the court first found that a certain expert report was admissible. The Court then addressed defendants' affirmative defenses, and held that the claims were not barred by the statute of limitations, and that defendants' could not set forth a claim for equitable estoppel (or laches or waiver). On plaintiffs' copyright claims, the Court found that plaintiffs established that defendants illegally uploaded 5,977 sound recordings (plaintiffs had requested a much higher number). Accordingly, defendants were directly liable for infringement of plaintiffs' distribution, reproduction and public performance rights. Further, Escape was liable for vicarious and inducement infringement because it had the ability to control its employee's infringing activity and instructed its employees to upload as many files as possible to Grooveshark as a condition of their employment. Escape also materially contributed to the infringing employee uploads, and the Court granted plaintiffs summary judgment on their claim for contributory infringement. The corporate officers were also liable., jointly and severally with the company.
This case involved "Grooveshark" and the direct upload of plaintiffs' copyright music by defendant's officers and employees. The Court granted plaintifss' motion for spoliation sanctions, and granted plaintiffs' summary judgment on nearly all of their claims. As to spoliation sanctions, the Court found that defendants acted with a culpable state of mind when they deleted user upload information and relevant source code. Based on the spoliation, the Court found that an individual defendant directly infringed plaintiffs' copyright recordings; however, the Court did not agree with plaintiffs' request that it find 10,000 instances of infringement and instead found that plaintiffs were entitled to judgment as a matter of law that that defendant illegally uploaded a small percentage (144) of the recordings. Similarly, the Court found that the other employees uploaded a much smaller percentage of additional files than requested by plaintiffs.
Turning to the summary judgment motion, the court first found that a certain expert report was admissible. The Court then addressed defendants' affirmative defenses, and held that the claims were not barred by the statute of limitations, and that defendants' could not set forth a claim for equitable estoppel (or laches or waiver). On plaintiffs' copyright claims, the Court found that plaintiffs established that defendants illegally uploaded 5,977 sound recordings (plaintiffs had requested a much higher number). Accordingly, defendants were directly liable for infringement of plaintiffs' distribution, reproduction and public performance rights. Further, Escape was liable for vicarious and inducement infringement because it had the ability to control its employee's infringing activity and instructed its employees to upload as many files as possible to Grooveshark as a condition of their employment. Escape also materially contributed to the infringing employee uploads, and the Court granted plaintiffs summary judgment on their claim for contributory infringement. The corporate officers were also liable., jointly and severally with the company.
June 9, 2014
6th Circuit: Bar Owner Liable For Vicarious Copyright Infringement
Broadcast Music, Inc. v. Meadowlake, Ltd. et al., No. 13-3933 (6th Cir. June 6, 2014) [decision].
The Sixth Circuit holds that an individual, who owned 95% a limited liability company that owned a restaurant that offered dancing and live music, was liable for vicarious copyright infringement (public performance right). As the company’s chief (95%) owner and the restaurant’s ultimate decision maker, the individual defendant had the right and ability to supervise the infringing performances. According to the 6th Circuit, "This case indeed falls within the heartland of vicarious liability." The Court rejected the defendant's argument that his son was the day-to-day manager of the restaurant, that he claimed ignorance of the infringement, and that ownership via a limited liability company shielded liability. "Either way, Roy profited from infringement at his restaurant while refusing to exercise his right to stop it. And so either way, Roy remains vicariously liable."
The Sixth Circuit holds that an individual, who owned 95% a limited liability company that owned a restaurant that offered dancing and live music, was liable for vicarious copyright infringement (public performance right). As the company’s chief (95%) owner and the restaurant’s ultimate decision maker, the individual defendant had the right and ability to supervise the infringing performances. According to the 6th Circuit, "This case indeed falls within the heartland of vicarious liability." The Court rejected the defendant's argument that his son was the day-to-day manager of the restaurant, that he claimed ignorance of the infringement, and that ownership via a limited liability company shielded liability. "Either way, Roy profited from infringement at his restaurant while refusing to exercise his right to stop it. And so either way, Roy remains vicariously liable."
December 3, 2013
Aimee Mann Copyright Claim Survives Dismissal Based On Terminated License
Aimee Mann v. MediaNet Digital, Inc., et al., No. 2:13-cv-05269 (C.D. Cal. filed 11/27/13) [Doc. 26].
Plaintiff Aimee Mann (“Mann”), a songwriter and recording artist, brought this copyright infringement action against Defendant MediaNet Digital, Inc. (“MediaNet”), f/k/a MusicNet, a distributor of streaming music, online radio, and music downloads to companies like Songza, Stub Hub, Soundtracker, MTV, Yahoo Music, and Time Warner Cable (among others). MediaNet moved to dismiss the copyright claims and Plaintiff's claim for rescission of a license agreement. The Court denied the motion to dismiss the copyright claims, but dismissed the rescission claim with leave to replead.
On the copyright claims, MediaNet argued that Mann’s claim for direct infringement should be dismissed because: (i) MediaNet had a valid license at all relevant times and therefore cannot be liable for copyright
infringement, and (ii) the License Agreement was not terminated on December 4, 2006 as a matter of
law. The Court found that MediaNet did not have a statutory compulsory license (17 U.S.C. 115). The Court also found that the 2003 License Agreement was no longer in effect. Relying on New York General Obligations Law § 5-903, Mann asserted that because MediaNet failed to alert her to the existence of the auto-renewal provision, the License Agreement was not automatically renewed after its initial term ended on December 4, 2006. The Court agreed that the auto-renewal of the License Agreement is unenforceable under § 5-903. As such, Mann’s allegation that MediaNet exploited her pre-December 5, 2003 and post-December 4, 2006 compositions after the initial term of the License Agreement stated a claim for copyright infringement. The Court further found that Mann had stated claims for secondary copyright liability (contributory, inducing and vicarious liability).
However, Mann's claim for rescission was dismissed with leave to replead. The Court found rescission is an equitable remedy and that that Mann had failed to explain why the non-payment of royalties could not be adequately remedied by monetary damages. "This failure is fatal to her rescission claim."
Plaintiff Aimee Mann (“Mann”), a songwriter and recording artist, brought this copyright infringement action against Defendant MediaNet Digital, Inc. (“MediaNet”), f/k/a MusicNet, a distributor of streaming music, online radio, and music downloads to companies like Songza, Stub Hub, Soundtracker, MTV, Yahoo Music, and Time Warner Cable (among others). MediaNet moved to dismiss the copyright claims and Plaintiff's claim for rescission of a license agreement. The Court denied the motion to dismiss the copyright claims, but dismissed the rescission claim with leave to replead.
On the copyright claims, MediaNet argued that Mann’s claim for direct infringement should be dismissed because: (i) MediaNet had a valid license at all relevant times and therefore cannot be liable for copyright
infringement, and (ii) the License Agreement was not terminated on December 4, 2006 as a matter of
law. The Court found that MediaNet did not have a statutory compulsory license (17 U.S.C. 115). The Court also found that the 2003 License Agreement was no longer in effect. Relying on New York General Obligations Law § 5-903, Mann asserted that because MediaNet failed to alert her to the existence of the auto-renewal provision, the License Agreement was not automatically renewed after its initial term ended on December 4, 2006. The Court agreed that the auto-renewal of the License Agreement is unenforceable under § 5-903. As such, Mann’s allegation that MediaNet exploited her pre-December 5, 2003 and post-December 4, 2006 compositions after the initial term of the License Agreement stated a claim for copyright infringement. The Court further found that Mann had stated claims for secondary copyright liability (contributory, inducing and vicarious liability).
However, Mann's claim for rescission was dismissed with leave to replead. The Court found rescission is an equitable remedy and that that Mann had failed to explain why the non-payment of royalties could not be adequately remedied by monetary damages. "This failure is fatal to her rescission claim."
May 16, 2013
Reconsideration in MP3Tunes Case
Capitol Records, Inc. v. MP3Tunes, LLC, No. 07-cv-9931 (S.D.N.Y. filed May 14, 2013) [Doc. 368].
All parties moved for reconsideration of the Court's October 25, 2011 order (821 F. Supp. 2d 627), springing from the 2nd Circuit's decision in Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). Plaintiff's motion was granted in part and denied in part: plaintiff's motion was granted as to the issue of willful blindness and "red flag" knowledge, and denied as to the inducement of copyright claim. Defendant's motion regarding direct copyright infringement was granted in part and denied in part. Defendant's motion for reconsideration regarding infringement of cover art, regarding personal jurisdiction and summary judgment as to his vicarious liability was denied.
There is an interesting discussion of "red flag" knowledge of infringement, under which service providers can lose the protection of the DMCA safe harbors if they have actual or apparent (i.e., "red flag") knowledge of infringing conduct.
All parties moved for reconsideration of the Court's October 25, 2011 order (821 F. Supp. 2d 627), springing from the 2nd Circuit's decision in Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). Plaintiff's motion was granted in part and denied in part: plaintiff's motion was granted as to the issue of willful blindness and "red flag" knowledge, and denied as to the inducement of copyright claim. Defendant's motion regarding direct copyright infringement was granted in part and denied in part. Defendant's motion for reconsideration regarding infringement of cover art, regarding personal jurisdiction and summary judgment as to his vicarious liability was denied.
There is an interesting discussion of "red flag" knowledge of infringement, under which service providers can lose the protection of the DMCA safe harbors if they have actual or apparent (i.e., "red flag") knowledge of infringing conduct.
January 13, 2012
9th Cir. Affirms Public Performance Liability Against Restaurant
Range Road Music, Inc. v. East Coast Foods, Inc., No. 10-55691 (9th Cir. filed Jan. 12, 2012).
The 9th Circuit affirmed the district court's grant of summary judgment and legal fees in favor of plaintiffs (ASCAP) against defendant (restaurant/lounge). Defendant was vicariously liable for copyright infringement related to the public performance, both by a live band and by a CD, of copyrighted songs. Plaintiff's proof was an investigative report by a visitor to the premises. The report did not need to be by a certified expert because "identifying popular songs does not require 'scientific, technical, or other specialized knowledge'.” The Court rejected defendant's argument that a showing of substantial similarity was required for a public performance case. The Court properly awarded attorney's fees to Plaintiff.
January 9, 2012
ReDigi Sued For Copyright Infringement
Capital Records Inc. v. ReDigi Inc., No. 1:12-cv-00095 (SDNY filed 1/6/2012).
Plaintiff alleges copyright infringement arising from defendant's contributory, vicarious, and inducement of the willful and systemic use of plaintiff's original sound recordings on defendant's "ReDigi" music service. Defendant is an internet business whose stated purpose is to help consumers buy and sell "used" digital music files. Plaintiff seeks $150,000 per infringement (maximum statutory damages for willful infringement).
Plaintiff alleges copyright infringement arising from defendant's contributory, vicarious, and inducement of the willful and systemic use of plaintiff's original sound recordings on defendant's "ReDigi" music service. Defendant is an internet business whose stated purpose is to help consumers buy and sell "used" digital music files. Plaintiff seeks $150,000 per infringement (maximum statutory damages for willful infringement).
September 23, 2011
Copyright Case Dismissed Against 50 Cent Over Crime Story/Book
Winstead v. Jackson, et al., No. 2:10-cv-05783 (D.N.J. Sept. 20, 2011) [Doc. 45].
In this copyright infringement action, Plaintiff alleges that Defendants’ movie and companion album, both entitled Before I Self Destruct, infringe upon Plaintiff’s copyright in his book, The Preachers Son - But the Streets Turned Me Into a Gangster. Plaintiff is the author and sole owner of the copyright for the Book. Plaintiff alleges that Defendants infringed upon the
copyright of the Book by publishing and selling the Movie and the Album, both of which
Plaintiff contends derive their content from the Book.
The Court granted defendants' motion to dismiss for failure to state a claim, under Fed. R. Civ. P. 12(b)(6). Plaintiff avers that the film duplicates the generalized theme and story
of the book and amounts to actionable copying. "However, general plot ideas and themes lie in
the public domain and are not protected by copyright law." Continuing:
There is no doubt that the Book and Film do share similar characters, themes, as well as a similar setting. However, this s haring of common features is only natural since both works feature a protagonist who has a difficult upbringing and turns to a life of violence and street crime, a story which has long ago been part of the public domain and which has been the subject of numerous movies and television shows. Thus, both works may properly contain gang life in inner-city New Jersey, characters spending time in jail, the search for an ex-girlfriend upon release from prison, making love in the shower, obtaining money through criminal activity, purchasing fancy clothes and accessories with the proceeds of crime, shoot-outs, murder, and the loss of a parent.
The Court further held that commonly used words, phrases and cliches used in both the book and movie/album are not protectable. Also, Plaintiff's state common law claims were pre-empted by the Copyright Act.
Lastly, because the Court held that Defendants did not infringe on Plaintiff’s copyright, Plaintiff’s claims of vicarious and contributory infringement fail since they hinge on a preliminary finding of direct infringement.
April 18, 2011
"Work" Defined For Statutory Damages Against Limewire
Arista Records LLC v. Lime Group LLC, 06 CV 5936 (KMW), NYLJ 1202489939713, at *1 (SDNY, Decided April 4, 2011)
The Court had granted summary judgment in favor of Plaintiffs on their claims against Defendants LimeWire LLC ("LW"), Lime Group LLC ("Lime Group"), and Mark Gorton (collectively, "Defendants") for secondary copyright infringement. The Court found that Defendants had induced multiple users of the LimeWire online file-sharing program ("LimeWire") to infringe Plaintiffs' copyrights. The litigation is now in the damage phase, with a trial on damages scheduled. Plaintiffs identified approximately 11,205 sound recordings that had allegedly been infringed through the LimeWire system. Of those, approximately 9,715 are sound recordings as to which Plaintiffs have elected to seek statutory damages under Section 504(c)(1) of the Copyright Act.
On March 10, 2011, the Court held that Plaintiffs are entitled to a single statutory damage award from Defendants for each "work" that was infringed by a direct infringer on the LimeWire system. The parties now seek a resolution of a threshold legal dispute regarding what constitutes a "work" as to which Plaintiffs can recover a statutory damage award.
The Court holds that both an album, and a sound recording that Plaintiffs issued as an individual track may constitute a "work" infringed. Accordingly, Plaintiffs are entitled to a statutory damage award for each sound recording that was infringed on the LimeWire system during the time period that Plaintiffs made that sound recording available as an individual track. However, for those sound recordings that Plaintiffs issued only as part of an album, Plaintiffs can recover only one statutory damage award for that album, not for each individual sound recording.
December 15, 2009
EMI Sues Video Sharing Website
EMI has filed two related complaints, one by its labels and the other by its publishing units, against the video-sharing website Vimeo .
Both complaints claim direct, contributory and vicarious copyright infringement, and inducement to infringe. The Capitol complaint includes misappropriation and unjust enrichment claims.
March 2, 2009
EMI Sues Seeqpod & Favtape.com
Capitol Records LLC et. al. v. Seeqpod, Inc., No. 09 cv 1584 (S.D.N.Y. filed 2/20/09).
"The Seeqpod site and service are designed to, and do, encourage and facilitate the search for, and the unlawful production, distribution and public performance of, copyrighted sound recordings and the copyrighted compositions embodied therein. In response to a user's query for a particular recording or recording artist, SeeqPod's proprietary algorithims - which SeeqPod's CEO and founder, Kazian Franks refers to as SeeqPod's "targeted crawling system" - crawl the Internet specifically to locate and index unlawful MP3 files of copyrighted sound recordings and compositions. SeeqPod then formats and presents the results as direct links to those unlawful files. A click on any one of these links will automatically cause the recording and composition to be reproduced and performed, via "streaming" technology, on and via SeeqPod's own MP3 software "player."
Paragraph 48.
"The Seeqpod site and service are designed to, and do, encourage and facilitate the search for, and the unlawful production, distribution and public performance of, copyrighted sound recordings and the copyrighted compositions embodied therein. In response to a user's query for a particular recording or recording artist, SeeqPod's proprietary algorithims - which SeeqPod's CEO and founder, Kazian Franks refers to as SeeqPod's "targeted crawling system" - crawl the Internet specifically to locate and index unlawful MP3 files of copyrighted sound recordings and compositions. SeeqPod then formats and presents the results as direct links to those unlawful files. A click on any one of these links will automatically cause the recording and composition to be reproduced and performed, via "streaming" technology, on and via SeeqPod's own MP3 software "player."
Paragraph 48.
Subscribe to:
Posts (Atom)
Posts
