1st Cir Affirms $675,000 Jury Award For Unauthorized Downloads/Distributions

Sony BMG Music Entertainment v. Tenenbaum, No. Case: 12-2146 (1st Cir. filed 6/25/2013) [Doc. 00116547502].

From the decision:

Joel Tenenbaum illegally downloaded and distributed music for several years. A group of recording companies sued Tenenbaum, and a jury awarded damages of $675,000, representing $22,500 for each of thirty songs whose copyright Tenenbaum violated. Tenenbaum appeals the award, claiming that it is so large that it violates his constitutional right to due process of law. We hold that the award did not violate Tenenbaum's right to due process, and we affirm.

The two issues on appeal were: (1) what is the correct standard for evaluating the constitutionality of an award of statutory damages under the Copyright Act; and (2) did an award of $675,000 violate defendant's right to due process?  On issue one, the Court held that the correct standard was that announced in St. Louis, I.M. & S.Ry. Co. v. Williams, 251 U.S. 63 (1919), that a statutory damage award violates due process only "where the penalty prescribed is so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable."  On issue two, the Court found that the award did not violate defendant's due process rights.

CLE "Does The DMCA Apply To Pre-1972 Sound Recordings"

This afternoon, David Rabinowitz and I co-presented a CLE entitled "Why The Internet Distribution of Pre-1972 Sound Recordings Is Different From Everything Else In Copyright Law -or- Does The DMCA Apply To Pre-1972 Sound Recordings."  Topics included a brief history of copyright in sound recordings, the scope of common law copyright protection, federal preemption of common law copyright (except for pre-1972 recordings), related claims of unfair competition, the DMCA safe-harbor, conflicting case law on whether the DMCA safe-harbor applies to pre-1972 recordings, and conflicting decisions on whether there is immunity for service providers under the Communications Decency Act.  Thank you to those who attended.

Happy Birthday Class Action

Good Morning To You Productions Corp. v. Warner/Chappell Music, Inc., No. 1:13-cv-4040 (S.D.N.Y. filed June 13, 2013).

Plaintiff brings a class action on behalf of licensees of the song "Happy Birthday to You" (from June 13, 2009-present), seeking a declaratory judgment that defendant does not have the right to collect licensing fees for use of the song, "Happy Birthday To You."  Plaintiff claims that the song is in the public domain and dedicated to public use.

BMI Brings Petition For Pandora Blanket License

Broadcast Music, Inc. v. Pandora Media, Inc., No, 1:13-cv-4037 (S.D.N.Y. filed June 13, 2013).

BMI seeks a determination of license fees/terms for a blanket license covering all BMI musical compositions performed on the streaming service Pandora.

New Trial In EMI/Citi Case

Terra Firma Investments v. Citigroup, Docket No. 11-1267 (2d Cir. May 31, 2013)

After a jury trial, judgment was entered against Plaintiff.  The Second Circuit vacated the judgment and remanded for a new trial, "[b]ecause the district court’s jury instructions were based on an inaccurate understanding of the relevant English law".

This case concerns the 2007 acquisition of EMI by the private equity firm Terra Firma.  Terra Firma sued Citigroup, alleging that during the auction, a Citi banker advising the auction fraudulently induced the Terra Firma to make an inflated bid for EMI.  A jury ruled in Citi's favor.

No Patent For Music Royalty Technology

In re Scott P. Schreer, No. 2012-1564 (Fed. Cir. May 21, 2013).

The Court of Appeals for the Federal Circuit affirmed the Board of Patent Appeals decision that "the claims would have been obvious to one of ordinary skill in the art at the time of invention..."  The patent application sought to cure problems relating to the "public performance" right of copyright holders by claiming a method of compensating the copyright holders.  "Generally speaking, the claimed method method consists of embedding identification information in an audio file, broadcasting the audio file in a public broadcast, receiving the audio file by a monitoring station, correlating the identification information to a copyright holder, and then compensating the copyright holder."

Class Action Brought Against eMusic

Dabaghian v. eMusic.com, No. 651794/2013 (Sup. Ct., N.Y. Co. filed 5/20/2013).

Plaintiff brought a class action for breach of contract, breach of warranty and violations of N.Y. Gen. Bus. Law.  Plaintiff alleges that eMusic sells music download cards that represent that a specific number of songs can be purchased for a fixed price.  Plaintiff allegedly purchased such a card that advertised 30 songs for $15.  However, plaintiff allegedly was only able to download 16 songs before the card was depleted.  Plaintiff alelges that eMusic failed to disclose it had switched to a monetary based credit system where each song is individually priced.  Under this system, a song may cost 89 cents, and allegedly only rarely costs 50 cents.  Accordingly, Plaintiff alleges it is impossible to purchase 30 songs for $15.