Professional Documents
Culture Documents
Plaintiffs,
While that
parties
addressing
whether
the
complaint
against
Guerra
Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976).
On May 6, 2014,
copyright
infringement
claim
with
one
for
Guerras
defendant.
attorney,
Alexander
Hartnett,
as
second
For the
agreed
to
pay
promised to record.
DDK
entered
which
into
released
Guerra
for
certain
Guerra
agreement
from
his
(the
rights
to
songs
he
recording
Agreement),
obligations
and
parties
agree
that
Id. 2833.
the
copyrights
in
the
sound
included
Complaint.
contends
their
copyright
registrations
2006
Agreement
granted
him
in
the
Amended
However, Guerra
administration
Tr. 13.
plaintiffs
and
their
two
principals,
Bienvenido
that
case,
Guerra
seeks
an
accounting
of
the
royalty
Although the 1985-2006 agreements were entered into by DDK, the rights
granted to it were also granted to Karen Records Inc. and Karen Publishing
Company as DDKs licensees. See Am. Compl. 27.
5 Citations to Tr. refer to the transcript of oral argument on Guerras
first motion to dismiss, held on February 20, 2014.
revenues
breach
he
is
of
owed
under
contract,
and
the
a
2006
Agreement,
declaration
of
damages
the
for
parties
Am.
and
inducement
its
affiliates
and
unjust
have
counterclaimed
enrichment,
and
are
for
fraudulent
seeking
monetary
One is
it
is
relevant
to
the
question
of
whether
sell
music
on
iTunes,
Apple
music
In order
from
record
See id.
compatible
with
Apples
digital
rights
managemant systems;
2) stream clips of plaintiffs music and videos in order to
promote the sales of full songs;
3) market,
sell,
and
electronically
distribute
songs
to
iTunes customers;
4) reproduce and deliver associated artwork, such as album
cover art; and
5) use
plaintiffs
may
be
[Apple]
to
For
reasonably
copyrighted
necessary
or
material
desirable
for
as
exercise
[Apples]
rights
under
the
terms
of
this
Agreement.
2(a).
After the Apple Contracts effective date, plaintiffs were
required to deliver all existing COMPANY Content as soon as
reasonably
possible.7
3(a).
Thereafter,
plaintiffs
were
Plaintiffs,
meanwhile,
were
responsible
for
paying
plaintiffs
relationships
with
copyright
owners.
6(c).
to
sell
or
otherwise
use
such
. . .
Content
or
permits
third
6(d).
parties
to
submit
such
claims
(or
2,
that
ECF
No.
26-2.
Apples
form
explains
most
iTunes
Id.
songs
that
Guerra
had
recorded
under
the
19851992
Hartnetts communication
Id. 38.
Id. 41.
alleging
that
interference
with
with
contract,
infringement.
complaint,
Hartnetts
letter
economic
advantage,
slander
of
title,
constituted
tortious
defamation,
tortious
interference
and
copyright
replacing
the
federal
infringement
claim
with
Pleading Standard
On
motion
to
dismiss
under
Federal
Rule
of
Civil
Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Grandon v. Merrill Lynch
&
Co.,
147
[f]actual
F.3d
184,
allegations
188
(2d
must
be
Cir.
enough
1998).
Nonetheless,
to
raise
right
of
Twombly,
omitted).
550
U.S.
544,
555
(2007)
(internal
citation
Id. at
Id.
actions.
Ashcroft
v.
Iqbal,
556
U.S.
662,
684
(2009)
determining
the
plausibility
of
complaint,
the
and
complaint.
documents
incorporated
by
reference
in
the
2011); Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 234
(2d Cir. 2008).
II. The Statute
Congress
enacted
the
copyright
DMCA
law
in
to
order
modernize
Internet
and
the
application
of
technology.
the
to
modern
often not responsible for data that pass through their systems,
Congress
created
providers
from
Subsections
set
of
copyright
(c)
and
safe
harbors
liability.
(f)
are
most
to
See
protect
17
relevant
U.S.C.
to
the
service
512.
pending
motion.
Subsection (c) provides a safe harbor to certain online
providers10
service
The
most
typical
whose
examples
users
arise
store
when
infringing
a
company
material.
provid[es]
in
users.
which
material
may
be
posted
at
the
direction
of
not
profit
512(c)(1).
directly
from
the
infringing
material.
the
512(c)(2).
then
the
service
provider
of
infringing
material.
service
infringing material.
provider
must
expeditiously
remove
the
512(c)(1)(C).
10
10
provider
is
required
to
remove
infringing
material.
notice
may
lack
these
elements
and
still
representative
[i]dentifi[es]
infringing,
list
. . .
and
(3)
the
of
[copyrighted]
material
provides
that
adequate
is
works,
claimed
contact
to
(2)
be
information,
512(c)(3)(A)(ii)(iv), (B)(ii).
At the same time that Congress created this and other safe
harbors for technology companies, Congress created a private
cause of action, with costs and attorneys fees, in favor of a
true
copyright
owner
who
is
injured
by
[a]ny
person
who
or
activity
service
provider
is
relying
infringing
upon
as
such
the
of
[a]
misrepresentation
in
11
result
512(f)(1).
person
section.
containing
makes
the
misrepresentation
512(f).
the
This
means
misrepresentation
under
that
must
the
have
this
notice
complied
defendants
notice
to
Apple
failed
to
comply
person
section.
makes
the
misrepresentation
512(f).
This
means
under
that
the
this
notice
is
available.
Here,
no
music
was
stored
on
12
We
We cannot, however,
take-down
notice
can
be
actionable
under
more
technical
intended
to
requirements
protect
the
of
service
paragraph
provider,
512(c)(3)
not
to
Films
501(c)(4)
v.
Weiner,
62
F.
Supp.
2d
are
protect
See Brave
1013,
1018
the
service
provider
would
choose
to
overlook
the
For example, the complaining party could omit the phrase under penalty of
perjury from his statement that he is authorized to act on behalf of the
copyright owner. See 512(c)(3)(A)(vi).
13
request
that
the
submitter
cure
the
technical
defect.
would
be
immune
from
the
liability
(including
The
is
utterly
therefore
section.
does
unrecognizable
not
constitute
as
a
take-down
representation
notice
under
and
this
carries
no
legal
effect.12
This
conclusion
is
12
14
that
Hartnett
provided
Apple
with
his
contact
take-down
notice
can
be
actionable
under
DMCA to concern itself with a person who does not abuse the
federal rights and remedies of section 512.
13
Thus, we must
Plaintiffs should clarify, at some point before the next motions, whether
Hartnett allegedly sent a letter or submitted an online form.
15
are
of
the
service
YouTube,
providers
Facebook,
and
intervention.
Twitter,
each
Key
of
which
Unlike
To support
music
as
reasonably
necessary
or
desirable,
wide
9(b).
discretion
as
to
how
to
promote
music
on
iTunes,
16
sells
music
on
iTunes,
and
plaintiffs
suggest
that
number
of
songs
available
on
iTunes.
Plaintiffs
3(a).
reasonable
limits)
outside
of
the
limited
17
remove
plaintiffs
contract
thus
music
from
constrained
iTunes.
both
6(c),
Apples
and
(d).
The
plaintiffs
our
analysis,
it
cuts
somewhat
in
plaintiffs
favor.
song
that
plaintiffs
had
the
rights
to
deliver,
the
See Apple
and
whether
that
material
appears
at
all.
For
Service
6(F),
7(B),
See Terms
https://www.youtube.com/static?
18
template=terms
(dated
June
9,
2010;
last
visited
Mar.
11,
2015).
The proper question is not whether Apple has the legal
right to control how music appears on iTunes (as it surely
does), but rather the degree to which, as a practical matter,
Apple actually exercises its rights by organizing plaintiffs
music on iTunes manually or deciding how to promote plaintiffs
music.
The presence of some automated processing in between when
plaintiffs upload music and when the music appears on iTunes
for sale is not enough to take iTunes outside the scope of
subsection 512(c).
to
be
at
the
direction
of
user
even
though
the
degree.
Likewise,
YouTube
is
protected
by
subsection
Viacom,
676
F.3d
at
3940.
As
the
Second
Circuit
19
is
narrowly
directed
toward
providing
access
to
material
the service provider assigns a human being to perform lightweight screening or processing of user-submitted files.
See
though
service
providers
employees
screened
photos
to
(including
plaintiffs)
to
post
music
to
iTunes
those
songs
appear.
Apple
advertises
some
songs
20
these
functions
would
not
negate
the
storage
at
the
automated
way
for
the
purpose
of
help[ing]
But if
Apple
material,
manual
routinely
performs
discretionary,
As
14
21
Rivers
pleading
District
out the
Dated:
,L~~c~
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
22