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.
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.
May 1, 2015
Newly Discovered Evidence Stays Liability Finding In Shakira Suit
Mayimba Music, Inc. v. Sony Corp. of Am., No. 12-cv-01094 (S.D.N.Y. filed 04/30/15) [Doc. 139].
Finding that newly discovered evidence concerning the authenticity and date of creation of an audio tape, which implicated a potential fraud on the court during the liability phase of trial, resulted in the Court staying a previous finding of liability pursuant to Rules 59 and 60. The Court had previously found plaintiff had a valid copyright in the song at issue, that the plaintiff's testimony was credible that he had authored the song between 1996 and 1998, that it was an original song, that the song was recorded onto a cassette tape in 1998, and that a copy of the song on the tape was registered at the Copyright Office in November 2011. After trial, the parties engaged in extensive discovery of damages in preparation for the second phase of trial. Four months after the liability opinion was issued, Defendants filed a motion contending that newly-discovered evidence demonstrated that the tape was fabricated in 2011, not created in 1998, and that plaintiff had lied under oath when he testified that the tape had been created in 1998. Thus, the core issues before the Court were "when the tape was created, and whether witnesses lied on the stand with respect to its creation". The Court found that "this is newly discovered evidence which could not have been found with reasonable diligence before trial. ... Furthermore, the evidence now put forth, if credited, clearly establishes that Plaintiff attempted to commit a fraud upon this court, going so far as to fabricate evidence and to commit perjury." Accordingly, the Court suspended the finding of liability against Defendants "until further clarification can be found on these very serious issues."
Finding that newly discovered evidence concerning the authenticity and date of creation of an audio tape, which implicated a potential fraud on the court during the liability phase of trial, resulted in the Court staying a previous finding of liability pursuant to Rules 59 and 60. The Court had previously found plaintiff had a valid copyright in the song at issue, that the plaintiff's testimony was credible that he had authored the song between 1996 and 1998, that it was an original song, that the song was recorded onto a cassette tape in 1998, and that a copy of the song on the tape was registered at the Copyright Office in November 2011. After trial, the parties engaged in extensive discovery of damages in preparation for the second phase of trial. Four months after the liability opinion was issued, Defendants filed a motion contending that newly-discovered evidence demonstrated that the tape was fabricated in 2011, not created in 1998, and that plaintiff had lied under oath when he testified that the tape had been created in 1998. Thus, the core issues before the Court were "when the tape was created, and whether witnesses lied on the stand with respect to its creation". The Court found that "this is newly discovered evidence which could not have been found with reasonable diligence before trial. ... Furthermore, the evidence now put forth, if credited, clearly establishes that Plaintiff attempted to commit a fraud upon this court, going so far as to fabricate evidence and to commit perjury." Accordingly, the Court suspended the finding of liability against Defendants "until further clarification can be found on these very serious issues."
April 27, 2015
Pre-Trial Evidentiary Rulings In Grooveshark Case
UMG Recordings, Inc. v. Escape Media Group, No.11-cv-8407 (SDNY filed 04/23/15) [Doc. 174].
In advance of a jury trial on statutory damages, the Court made a number of pre-trial evidentiary determinations on motions in limine. Among its holdings as to what the parties could or could not introduce at trial, the Court held that defendants were precluded from offering argument or evidence contesting that their conduct was willful or in bad faith (the jury would be instructed that there was a cap of $150,000 per work, not $30,000), but defendants were permitted to present proof as to the degree and extent of their willfulness. As to Defendants' argument that Plaintiffs could receive statutory damages for infringement of pre-1972 sound recordings (or that the Court had jurisdiction over such claims), the Court reserved decision. The Court also made several rulings as to what evidence Defendants could introduce concerning their failure to mitigate damages defense (e..g, concerning settlement and future licensing negotiations, failure to make claims against other infringers, DMCA compliance
In advance of a jury trial on statutory damages, the Court made a number of pre-trial evidentiary determinations on motions in limine. Among its holdings as to what the parties could or could not introduce at trial, the Court held that defendants were precluded from offering argument or evidence contesting that their conduct was willful or in bad faith (the jury would be instructed that there was a cap of $150,000 per work, not $30,000), but defendants were permitted to present proof as to the degree and extent of their willfulness. As to Defendants' argument that Plaintiffs could receive statutory damages for infringement of pre-1972 sound recordings (or that the Court had jurisdiction over such claims), the Court reserved decision. The Court also made several rulings as to what evidence Defendants could introduce concerning their failure to mitigate damages defense (e..g, concerning settlement and future licensing negotiations, failure to make claims against other infringers, DMCA compliance
April 21, 2015
Ghostface Killa Case, Involving "Iron Man Theme" Sample, Dismissed
Urbont v. Sony Music Entertainment et al., No, 11-cv-94516 (S.D.N.Y. April 20, 2015) [Doc. 78].
The Court granted Sony Music summary judgment dismissing the claims of plaintiff, who alleged infringement of his rights to the musical composition and sound recording of the "Iron Man Theme" in a Ghostface Killa song. Sony successfully challenged plaintiff's ownership of a copyright interest in the song by establishing that the composition was a "work for hire" and was therefore owned by Marvel Comics, for whom plaintiff created the composition. Notably, the Court found that Sony -- a third-party to that transaction -- had standing to challenge plaintiff's ownership under the work for hire doctrine pursuant to the 1909 Act's "instance and expense" test.
The Court also dismissed Plaintiff's state law claims for common law copyright infringement, unfair competition, and misappropriation, finding that the claims were preempted by the Copyright Act. Plaintiff argued that the recording fell within the exception to pre-emption as a sound recording fixed before February 15, 1972. 17 U.S.C. 301. The Court disagreed, finding that the recording was an "audiovisual work" and not a "sound recording" because it was created purely to accompany the television show Iron Man and did not exist apart from the accompanying televisuals. Under the 1976 Act, the claims were preempted because they involve an audiovisual work.
The Court granted Sony Music summary judgment dismissing the claims of plaintiff, who alleged infringement of his rights to the musical composition and sound recording of the "Iron Man Theme" in a Ghostface Killa song. Sony successfully challenged plaintiff's ownership of a copyright interest in the song by establishing that the composition was a "work for hire" and was therefore owned by Marvel Comics, for whom plaintiff created the composition. Notably, the Court found that Sony -- a third-party to that transaction -- had standing to challenge plaintiff's ownership under the work for hire doctrine pursuant to the 1909 Act's "instance and expense" test.
The Court also dismissed Plaintiff's state law claims for common law copyright infringement, unfair competition, and misappropriation, finding that the claims were preempted by the Copyright Act. Plaintiff argued that the recording fell within the exception to pre-emption as a sound recording fixed before February 15, 1972. 17 U.S.C. 301. The Court disagreed, finding that the recording was an "audiovisual work" and not a "sound recording" because it was created purely to accompany the television show Iron Man and did not exist apart from the accompanying televisuals. Under the 1976 Act, the claims were preempted because they involve an audiovisual work.
April 16, 2015
Appeals Court To Hear Sirius's Pre-72 Case
Sirius XM Radio, Inc. v. Flo & Eddie, Inc.; No. 15-497, (2d Cir. 04/15/2015) (Doc. 30).
In the pre-1972 sound recording case between Sirius XM and the Turtles, the Second Circuit Court of Appeals granted Sirius XM's petition, pursuant to 28 U.S.C. 1292(b), for leave to appeal the district court’s orders denying summary judgment and reconsideration. Generally, federal appellate courts have limited jurisdiction over interlocutory decisions (e.g., injunctions). However, the appellate court has discretion to permit an appeal from an interlocutory appeal when the district judge is explicitly of the opinion that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. 1292(b).
In the pre-1972 sound recording case between Sirius XM and the Turtles, the Second Circuit Court of Appeals granted Sirius XM's petition, pursuant to 28 U.S.C. 1292(b), for leave to appeal the district court’s orders denying summary judgment and reconsideration. Generally, federal appellate courts have limited jurisdiction over interlocutory decisions (e.g., injunctions). However, the appellate court has discretion to permit an appeal from an interlocutory appeal when the district judge is explicitly of the opinion that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. 1292(b).
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