Mayimba Music v. Sony Corp. of Am. et al., No. 12-cv-1094 (S.D.N.Y. Jan. 16, 2014) [Doc. 30].
The Court denied defendants' motion for summary judgment, finding that Plaintiff just "barely" had an issue for the jury, to wit: whether Plaintiff, alleged assignee of the song, still maintained an interest in the copyrighted song, which Plaintiff alleged was used without its permission in a song ultimately recorded by Shakira. There was conflicting testimony and documentary evidence.
January 17, 2014
January 9, 2014
Vimeo Decision Modified; Leave To Appeal Granted
Capitol Records, LLC v. Vimeo, LLC, 2013 ILRC 3345, No. 09-cv-10101 (S.D.N.Y. Dec. 31, 2013).
Upon further review of the record, the Court agreed with defendants that Vimeo is entitled to summary judgment with respect to five videos for which the only evidence of employee interaction was that the user's account had been "whitelisted." "It is simply unrealistic to infer that a Vimeo employee watched" those videos. Also upon further review, the Court found that for two videos, the infringing nature of the videos was not objectively "obvious" and therefore Defendants did not have "red flag" knowledge of the videos' infringing content. However, the Court found that 18 of the videos still should go to a jury.
The Court granted Plaintiff's motion to amend the complaint to add additional videos, including both pre- and post- 1972 sound recordings.
Lastly, the Court granted Vimeo's motion to certify two questions for interlocutory appeal: (1) Are the DMCA's safe-harbor provisions applicable to sound recordings fixed prior to Feb. 15, 1972, (2) and does a service provider's mere viewing of a user-generated video containing third party copyrighted music automatically give rise to a triable issue of fact as to the service provider's knowledge of infringement under the DMCA?
Upon further review of the record, the Court agreed with defendants that Vimeo is entitled to summary judgment with respect to five videos for which the only evidence of employee interaction was that the user's account had been "whitelisted." "It is simply unrealistic to infer that a Vimeo employee watched" those videos. Also upon further review, the Court found that for two videos, the infringing nature of the videos was not objectively "obvious" and therefore Defendants did not have "red flag" knowledge of the videos' infringing content. However, the Court found that 18 of the videos still should go to a jury.
The Court granted Plaintiff's motion to amend the complaint to add additional videos, including both pre- and post- 1972 sound recordings.
Lastly, the Court granted Vimeo's motion to certify two questions for interlocutory appeal: (1) Are the DMCA's safe-harbor provisions applicable to sound recordings fixed prior to Feb. 15, 1972, (2) and does a service provider's mere viewing of a user-generated video containing third party copyrighted music automatically give rise to a triable issue of fact as to the service provider's knowledge of infringement under the DMCA?
BMI Rate Court Holds Withdrawals Of Digital Rights Ok
BMI v. Pandora Media, Inc., 2013 ILRC 3301, No. 13-cv-4037 (S.D.N.Y. Dec. 19, 2013).
The BMI rate court (District Court Judge Louis Stanton) holds that when BMI no longer is authorized by music publisher copyright holders to license their compositions to Pandora (and other New Media Services), those compositions are no longer in BMI's "repertory" and BMI can no longer license them to Pandora or any other applicant. Accordingly, the Court denied Pandora's motion for partial summary judgment. The holding is contrary to the ASCAP rate court's finding.
The BMI court focused on section 106 of the Copyright Act and a copyright owners right to "license, or not license, the performance of their compositions as they see fit. In the exercise of that right the publishers have agreed with BMI to withdraw their New Media performance licensing rights from Pandora and New Media Services. That is well within their power as copyright holders." The Court held that songs that publishers have withdrawn New Media licensing rights are not in BMI's new media repertory and therefore BMI cannot deal in or license those compositions to anyone. "BMI's repertory consists of compositions whose performance BMI 'has the right to license or sublicense.'"
Notably (in fn. 4), the BMI rate court acknowledged that its finding is contrary to that of the ASCAP rate court (Judge Cote). The BMI court stated: "The inconsistency is just a difference of view of the power of the application of Section 106 and the copyright holders' rights under the Copyright Law, and will be resolved by the Court of Appeals for the Second Circuit or decree amendment procedures, or managed commercially."
The BMI rate court (District Court Judge Louis Stanton) holds that when BMI no longer is authorized by music publisher copyright holders to license their compositions to Pandora (and other New Media Services), those compositions are no longer in BMI's "repertory" and BMI can no longer license them to Pandora or any other applicant. Accordingly, the Court denied Pandora's motion for partial summary judgment. The holding is contrary to the ASCAP rate court's finding.
The BMI court focused on section 106 of the Copyright Act and a copyright owners right to "license, or not license, the performance of their compositions as they see fit. In the exercise of that right the publishers have agreed with BMI to withdraw their New Media performance licensing rights from Pandora and New Media Services. That is well within their power as copyright holders." The Court held that songs that publishers have withdrawn New Media licensing rights are not in BMI's new media repertory and therefore BMI cannot deal in or license those compositions to anyone. "BMI's repertory consists of compositions whose performance BMI 'has the right to license or sublicense.'"
Notably (in fn. 4), the BMI rate court acknowledged that its finding is contrary to that of the ASCAP rate court (Judge Cote). The BMI court stated: "The inconsistency is just a difference of view of the power of the application of Section 106 and the copyright holders' rights under the Copyright Law, and will be resolved by the Court of Appeals for the Second Circuit or decree amendment procedures, or managed commercially."
January 5, 2014
Steal This Episode
Though not really about "music," FOX aired an episode of The Simpsons tonight (Jan. 5, 2013), Steal This Episode, all about copyright infringement and online piracy (of movies). Definitely worth a watch.
December 16, 2013
EMI and Sony Permitted To Intervene In ASCAP/Pandora Rate Court Matter
In re Petition of Pandora Media, Inc. [related to US v. ASCAP]; No. 1941-cv-01395 (S.D.N.Y. filed Dec.13, 2013) [Doc. 733].
EMI and Sony moved to intervene in the Pandora rate-court proceeding (ASCAP) after the Court's summary judgment opinion issued on September 17, 2013 in which the Court held that the Second Amended Final Judgment ("AFJ2") prevented ASCAP from withholding from Pandora the rights to compositions in its repertory while licensing those compositions to other users. In re Pandora Media, Inc., 12 Civ. 8035 (DLC), 2013 WL 5211927 (S.D.N.Y. Sept. 17, 2013) (“September 17 Opinion”). The summary judgment practice was precipitated by putative publisher partial withdrawals of rights from ASCAP.
The Court analyzed Rule 24 of the Federal Rules of Civil Procedure. It considered whether the publishers' motion to intervene was timely (mixed finding), and whether the publishers possess an interest related to the subject of the action (yes). Ultimately, the Court granted the motion to intervene on the condition that the Publishers "may not raise new arguments on appeal that were not raised by ASCAP, with the exception of the Section 106 of the Copyright Act argument".
EMI and Sony moved to intervene in the Pandora rate-court proceeding (ASCAP) after the Court's summary judgment opinion issued on September 17, 2013 in which the Court held that the Second Amended Final Judgment ("AFJ2") prevented ASCAP from withholding from Pandora the rights to compositions in its repertory while licensing those compositions to other users. In re Pandora Media, Inc., 12 Civ. 8035 (DLC), 2013 WL 5211927 (S.D.N.Y. Sept. 17, 2013) (“September 17 Opinion”). The summary judgment practice was precipitated by putative publisher partial withdrawals of rights from ASCAP.
The Court analyzed Rule 24 of the Federal Rules of Civil Procedure. It considered whether the publishers' motion to intervene was timely (mixed finding), and whether the publishers possess an interest related to the subject of the action (yes). Ultimately, the Court granted the motion to intervene on the condition that the Publishers "may not raise new arguments on appeal that were not raised by ASCAP, with the exception of the Section 106 of the Copyright Act argument".
December 5, 2013
Transfer Denied In Sirius Class Action Over Pre-72 Recordings
Flo & Eddie, Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG (C.D. Cal. Dec. 3, 2013).
Plaintiff filed this putative class action in state court alleging that defendant Sirius XM had unlawfully exploited certain audio recordings made before February 15, 1972 by duplicating and broadcasting those audio recordings through its satellite and internet radio service. Sirius XM removed this case to federal court. Before the Court was Sirius XM's motion to transfer venue to the Southern District of New York, pursuant to 28 U.S.C. § 1404(a). The Court denied the motion.
In analyzing the motion, the court considered multiple factors -- some neutral, some favoring transfer, and some against transfer. The factors were: Jurisdiction and Venue in the Southern District of New York; Convenience of the Parties and Party Witnesses; Convenience of Third Party Witnesses and the Availability of Compulsory Process; Relevant Agreements; Familiarity with the Governing Law; Plaintiff’s Choice of Forum; The Parties’ Contacts with the Chosen Forum; Contacts Relating to Plaintiff’s Causes of Action in the Chosen Forum; Differences in the Cost of Litigation; Access to Sources of Proof; Relevant Policy of the Forum State; Relative Court Congestion; Local Interest in Having Localized Controversies Decided at Home; Unfairness of Burdening Citizens in an Unrelated Forum; and The Interest of Justice. After considering these factors, the Court concluded that transfer was not warranted. "Many of the transfer factors are neutral. As to the factors that carry weight one way or the other, several factors related to efficiency and convenience weigh toward transfer. However, California’s interest in having a novel question of state law decided at home, as well as the slight weight given to Plaintiff’s choice of forum, weighs against transfer."
Plaintiff filed this putative class action in state court alleging that defendant Sirius XM had unlawfully exploited certain audio recordings made before February 15, 1972 by duplicating and broadcasting those audio recordings through its satellite and internet radio service. Sirius XM removed this case to federal court. Before the Court was Sirius XM's motion to transfer venue to the Southern District of New York, pursuant to 28 U.S.C. § 1404(a). The Court denied the motion.
In analyzing the motion, the court considered multiple factors -- some neutral, some favoring transfer, and some against transfer. The factors were: Jurisdiction and Venue in the Southern District of New York; Convenience of the Parties and Party Witnesses; Convenience of Third Party Witnesses and the Availability of Compulsory Process; Relevant Agreements; Familiarity with the Governing Law; Plaintiff’s Choice of Forum; The Parties’ Contacts with the Chosen Forum; Contacts Relating to Plaintiff’s Causes of Action in the Chosen Forum; Differences in the Cost of Litigation; Access to Sources of Proof; Relevant Policy of the Forum State; Relative Court Congestion; Local Interest in Having Localized Controversies Decided at Home; Unfairness of Burdening Citizens in an Unrelated Forum; and The Interest of Justice. After considering these factors, the Court concluded that transfer was not warranted. "Many of the transfer factors are neutral. As to the factors that carry weight one way or the other, several factors related to efficiency and convenience weigh toward transfer. However, California’s interest in having a novel question of state law decided at home, as well as the slight weight given to Plaintiff’s choice of forum, weighs against transfer."
December 4, 2013
Country Music Infringement Claim Survives Dismissal
Bowen v. Paisley et al., No. 3:13-cv-0414 (M.D. Tenn. filed Dec. 3, 2013) [Doc. 58]
Plaintiff alleged that the defendants, including popular country music singers Brad Paisley and Carrie
Underwood, violated her copyright interests in the song “Remind Me,” a song that plaintiff
copyrighted and recorded. Defendants moved to dismiss. The Court denied defendant's motion to dismiss for failure to state a claim, finding that under the Iqbal standard, plaintiff had plausibly shown that, taken in combination, her lyrics and associated melodies, intonations, and usage could be sufficiently original to constitute protectable material, and that based on the Court's own comparison of the two works that defendants' hooks which incorporate that potentially distinctive combination of elements, are “substantially similar”.
Plaintiff alleged that the defendants, including popular country music singers Brad Paisley and Carrie
Underwood, violated her copyright interests in the song “Remind Me,” a song that plaintiff
copyrighted and recorded. Defendants moved to dismiss. The Court denied defendant's motion to dismiss for failure to state a claim, finding that under the Iqbal standard, plaintiff had plausibly shown that, taken in combination, her lyrics and associated melodies, intonations, and usage could be sufficiently original to constitute protectable material, and that based on the Court's own comparison of the two works that defendants' hooks which incorporate that potentially distinctive combination of elements, are “substantially similar”.
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