Ronnie Van Zant Inc. et al. v. Artimus Pyle et al., No. 1:17-cv-03360 (S.D.N.Y. June 2017)
The legal entities and estates for founding late Lynyrd Skynyrd band members are seeking a permanent injunction blocking the production of a film about a plane crash that killed some of the band’s original members.
Following the plane crash, members of Lynyrd Skynyrd went on a 10-year hiatus, which ended once the surviving members reunited for a tribute tour. Judith Van Zant Jenness, widow of Van Zent, brought suit amid the reunion tour, which ended in a consent order laying out the details of all future Lynyrd Skynyrd events and their post-breakup image.
U.S. District Judge Robert Sweet ordered that the legal entities for the late band members must produce any available tour lists and information regarding Lynyrd Skynyrd shows that followed the 1988 agreement. The film company is arguing that the band has been violating the agreement for years. Judge Sweet ordered the information to determine whether ex-drummer Artimus Pyle and Cleopatra Films are in compliance with the agreement.
The plaintiffs are currently in the process of developing their own film about the band.
Johnson v. Barrier et al., No. 15-3928 (N.D. Ill. Jan. 4, 2017).
The Court granted defendant's Rule 12(b)(2) motion to dismiss for lack of jurisdiction, without prejudice to refiling in another jurisdiction. Plaintiff is a blues musician who alleges UMG and others intentionally misappropriated his song by sampling it in another group of songs (the "Juice Products"). After granting plaintiff limited jurisdictional discovery, the federal Court found that it did not have specific or general jurisdiction over the defendants under Illinois law. The Court observed that " UMG’s wholesale shipments and sales of Juice Products within Illinois constituted only 1% of its total wholesale figures, and—as UMG’s corporate designee testified—none of the marketing associated with the Juice Products was specific to or otherwise targeted Illinois." Having dismissed on jurisdictional grounds, the Court did not decide the defendants' motion to dismiss for failure to state a claim.
In re Elvis Presley Enters. LLC, No. 15-mc-386 (S.D.N.Y. Mar. 1, 2016).
Elvis Presley Enterprises LLC is party to a litigation in Germany against Arista Music, and sought to serve a subpoena in the USA on Arista's affialiate, Sony Music, to obtain documents that it claims are relevant to the proceedings in Germany. The Court exercised its discretion and denied the application pursuant to 28 USC 1782. Weighing in favor of Sony's opposition to the discovery were: Arista is a wholly-owend subsidiary and thus has access to the documents and information held by Sony, the procedural posture of the case in Germany (it was on appeal), the timing of the section 1782 application, and the discovery requests were burdensome.
Blue Sphere, Inc. v. Swift et al., No. 8:14-cv-00782-CJC-DFM (C.D. Cak. filed 08/04/15) [Doc. 65].
Despite her world tour, and claims that she has no knowledge about Plaintiff's claims, Taylor Swift must be deposed in a trademark action. The Court denied her motion for a protective order, finding that that, notwithstanding the "apex doctrine" that protects high-level corporate executives from harassing depositions, "the extraordinary circumstances that would warrant a pr otective order prohibiting the deposition of a named party are not present here." Further, Swifts schedule -- including her world tour -- was not a basis for a protective order. "There is no evidence in the record to show that Plai ntiffs have been inconsiderate of Swift’s schedule. To the contrary, the record shows just the opposi te. Nor does the evidence suggest that Plaintiffs have sandbagged Swift’s deposition to coincide with her world tour; instead, the record shows that, as in most cases, most deposi tions have been left until the end of the discovery period."
Jay Z's motion for review of a Magistrate Judge's ruling directing him to produce documents concerning his concert revenues was denied. This action concerns Jay Z's alleged unauthorized sampling of "Khosara, Khosara" from the 1960 Egyptian film Fata Ahlami in his 2000 hit song "Big Pimpin'." A Magistrate Judge had ordered Jay-Z to produce the amount of revenue he earned from concerts where he performed "Big Pimpin' in order to allow the plaintiff to calculate his damages. Jay-Z moved for review of the magistrate's order under Federal Rule of Civil Procedure 72(a). The District Court denied the motion. The magistrate's order was not "clearly erroneous or contrary to law." The discovery of concert revenue "appears reasonably calculated to lead to the discovery of admissible evidence" concerning the existence and amount of damages. Fed. R. Civ. P. 26(b)(1). Nor was there evidence that the burden of production was undue.
Plaintiffs claim privileged documents (attorney client and work product) were inadvertently produced to Defendant by a non-party witness pursuant to a subpoena.
At the heart of plaintiffs' application was their contention that they "retained" the non-party to act as their "representative" in the litigation. In this role, plaintiffs disclosed to the non-party "numerous confidential communications" between plaintiffs and their counsel, which plaintiffs contend are protected by the attorney client privilege and the work-product doctrine. Plaintiffs maintain that the nonparty was included on these communications based on plaintiffs' "understanding and expectation" that he would keep the communications confidential.
The Court found that Plaintiffs failed to meet their burden of establishing that the privilege should apply to the documents at issue because, inter alia, Plaintiff did not demonstrate that the non-party was their representative or agent.
The Royalty Network Inc. v. Dishant.com LLC, No. 08 Civ. 8558 (SHS) (S.D.N.Y. July 29, 2009).
Defendant's FRCP 12(b)(2) motion to dismiss for lack of personal jurisdiction granted; plaintiff's request for jurisdictional discovery denied.
Defendants operate a website which invites visitors to play Indian music, to create "playlists" of Indian songs, and to "listen to and download Bollywood Movie ringtones." Plaintiff, the administrator of music owned by non-party music recording company based in India, brought action alleging that defendants' website provides visitors with unauthorized access to music produced by the record company, thereby violating its copyrights and denying Plaintiff royalties to which it is entitled as administrator.
Plaintiff contended that the Court has specific jurisdiction over defendants pursuant to New York's "long arm" statute, CPLR 302(a)(1) and (a)(3)(ii). The Court disagreed.
After discussing the standard on a 12(b)(2) motion, the Court examined whether Defendants' website conferred personal jurisdiction over defendants, who operated the website from Virginia and had no office, real estate or any employee in New York.
Under the "transacts business in" in New York claim for specific jurisdiction, the Court analyzed the "Spectrum of Interactivity" of the Website (passive, interactive, or somewhere in the middle), and found that the website "falls somewhere in the 'middle ground' and thus the jurisdiction inquiry requires closer evaluation of tis contact with New York residents." Plaintiff contended that the following contacts were sufficient: the website was available to NY visitors who could stream and download material from it; the site sells advertisments to NY based companies; and defendants registered the domain name thorugh a NY company.
Plaintiff, however, provided no evidence that any NY resident actually engaged in any transaction on the website (e.g., registered or downloaded material), or that defendants did anything to indicate their knowing and purposeful transaction with NY visitors. Nor was there anything to indicate that defendants sold to, or interacted with the NY office of any of its advertisers (who have national audiences) or that defendants knew that any of those advertisers were headquartered in NY. There was insufficient evidence to support the inference of a purposeful attempt to take advantage of the NY market. Lastly, even if Defendants registered their domain name through a NY company, there was no nexus between that transaction and those at issue (i.e., the connection was merely coincidental).
Under the "tortious conduct out of state causing injury in state" claim, plaintiff fared no better. Although plaintiff's copyright infringmenet claim validly alleged tortious activity and injury within NY, "the jurisdiction inquiry breaks down" becuase plaintiff proffered insufficient evidence to support a finding that it was reasonably foreseeable to defendants that their conduct would cause such injury in NY. (The "reasonable foreseeability" requirement is construed under NY law consistent with U.S. Supreme Court precedent concerning due process.) Plaintiff pointed to neither tangible manifestations of defendants' intent to target NY, nor concrete facts known to defendants that would lead them to foresee being sued in NY. There was no purposeful NY affiliation or discernable effort to target NY. Plaintiff's "sheer speculation" was insufficient.
Lastly, Plaintiff was unable to make a threshold showing that there was some basis for the assertion of jurisdiction to grant jurisdictional discovery. Moreover, plaintiff did not put forward any compelling reasons why discovery should be allowed, nor did it identify any particular facts it would seek to adduce through such discovery or suggest how discovery could aid the Court's jurisdictional inquiry. Decision Dishant
Sony BMG Music Entertainment v. Tenenbaum, No. 08-MC-00104, 2009 BL 124443 (D.R.I. June 10, 2009).
Court denied various record labels' request to inspect and mirror image the home computer the parents of a defendant in a music downloading copyright infringement action pending in another district court.
Related action against son in another district: Capitol Records, Inc. v. Alaujan, No. 03-CV-
11661 [D. Mass. (i) May 6, 2009 order permitting labels to miror one of defendant's two computers; (ii) May 13, 2009 order that “reminded” the record companies that the Massachusetts lawsuit was “‘not an opportunity to explore any potential copyright infringement committed by [the son] at any time or place’ and that ‘relevant discovery [is] limited to
the infringement of specific songs whose copyrights were owned or licensed by the [record companies] and which were identified in Exhibits A or B to their Complaint.")
In the Rhode Island action, the record labels sought to inspect and mirror Tenenbaum’s parents’ home computer. The parents were not parties to the Massachusetts dispute involving their adult son. Additionally, the parents bought their computer after their son left for college. The court found that although it was possible that the computer contained some evidence relevant to their son's file sharing activities, the record companies had not “shown enough of a likelihood
of relevant evidence to warrant the intrusion of privacy arising out of a forensic computer analysis of a home computer utilized for years by non-parties to the underlying case.” Further, the Mass. court had granted the record companies permission to analyze the son's computer, and thus, the record companies’ request to search for similar information on his parents
computer would be “duplicative and invasive of [the parents’] independent privacy interests as non-parties.” Nor would denial of the motion “handcuff” plaintiff record companies’ ability to litigate the underlying copyright infringement claim: the son had also admitted to downloading music, and the record companies obtained records from the file-sharing service that were attributed to the son's user name/IP address.
Ray Beckerman defends alleged file-sharers in cases brought by the RIAA; he also runs the most comprehensive blog about the RIAA's legal campaign against file-sharing.
In UMG Recordings, Inc. et al. v. Lindor, No. 05 CV 1095 (DGT)(RML), (E.D.N.Y. motion dated Sept. 12, 2008), plaintiffs filed a memorandum of law in support of their motion for sanctions and to dismiss without prejudice. Their argument is:
Defendant And Her Counsel Should Be Sanctioned For Providing False And Misleading Information And For Unreasonably And Vexatiously Multiplying And Prolonging This Litigation; Defendant and her counsel should be sanctioned for discovery abuses under Rule 37 and the Court’s inherent authority; Defendant’s counsel should be sanctioned for engaging in vexatious litigation in violation of 28 U.S.C. § 1927 by making false statements, fighting Plaintiffs’ good faith efforts to uncover crucial evidence, and filing frivolous motions, all of which unnecessarily increased the costs of this litigation; Defendant, her counsel, or both should be ordered to pay monetary sanctions to Plaintiffs because their misconduct demeaned the integrity of the judicial process and unnecessarily prolonged and increased the cost of this lawsuit.
At page 19-20 of the brief, plaintiff's argue:
Finally, as this Court is aware, Defendant’s counsel has maintained an anti-recording industry blog during the course of this case and has consistently posted virtually every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass Plaintiffs. Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions. See Galonsky, 1997 U.S. Dist. LEXIS 19570, at *18-19.
Lime Wire's Chief Operating Officer and Chief Technical Officer has been ordered to undergo 4 more hours of deposition, in addition to the two days of deposition that already occurred.
"Considering the facts set forth in Rule 26(b)(2)(C)(iii), this is a case in which the stakes are high, both sides have significant resources, and Bildson is apparently a central figure in the case."
The four additional hours "should be adequate time, particulary if the witness comes to realize that brisker, more responsive answers will undoubtedly reduce the tedium that he apparently feels and so visibly displays, with salutary effects on the impression he will make on the eventual factfind at trial."
I.e., take a hint.
Arista Records LLC v. Lime Group LLC, No. 06 Civ. 5936, 5/2/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. April 15, 2008).
The oft-venomous blog "Recording Industry vs. The People" links to this especially interesting memorandum of law in support of a John Doe (college student) defendant's motion to quash the ex parte subpoena issued by the RIAA to Boston University for the disclosure of student's names associated with IP addresses.
More. Copyright. Infringement. Actions. Various. Federal Courts.
IP Addresses. John Does. Major Labels.
Some (but not all): Ex parte. Discovery. College ISPs.
Who is Carlos Linares, upon whose application the ex parte applications for expedited discovery are based?
[Atlantic Recording Corporation et al v. Does 1-2; filed 1/31/08 in Calif. Southern District; case no. 3:2008cv00190. Arista Records LLC et al v. Does 1 - 4; filed 1/31/08 in Georgia Northern District; case no. 1:2008cv00358. BMG Music et al v. Does 1-19; filed 1/31/08 in Kentucky Western District; case no. 3:2008cv00070. LaFace Records L L C et al v. Does; filed 1/31/ 08 in Louis. Western District; case no. 3:2008cv00137. Arista Records LLC et al v. Does 1 - 3; filed 2/1/08 in Missouri Eastern District; case no. 4:2008cv00160. BMG Music et al v. Does 1-6; filed 1/31/08 in Mississippi Northern District; case no. 1:2008cv000231. CAPITOL RECORDS, INC. et al v. DOE # 1 et al; filed 2/1/08 in North Carolina Middle District; case no. 1:2008cv0008. ZOMBA RECORDING LLC et al v. DOES 1-26; filed 2/1/08 in New Jersey, case no. 3:2008cv00566. Zoomba Recording LLC et al v. Does 1-8; filed 1/31/08 in Ohio Southern District; case no. 3:2008cv00030.]
Another day at the races for the major labels, who yesterday (1/30) filed no less than 7 copyright infringement cases against "John Doe" defendants in various federal district courts.
Here's a highlight from Warner Bros. Records, Inc. v. Does 1-4 (1:08-cv-00120-RLY-TAB; filed 1/30/08 in the Southern District of Indiana):
"The true names and capacities of Defendants are unknown to Plaintiffs at this time. Each Defendant is known to Plaintiffs only by the Internet Protocol ("IP") address assigned to that Defendant by his or her ISP on the date and time of that Defendant's infringing activity...Plaintiffs believe that information obtained in discovery will lead to the identification of each Defendant's true name."
Continuing,
"Although Plaintiffs do not know the true names of Defendants, each Defendant is alleged to have committed violations of the same law (e.g., copyright law), by committing the same acts (e.g., the downloading and distribution of copyright sound recordings owned by Plaintiffs), and by using the same means (e.g., a file-sharing network) that each Defendant accessed via the same ISP. Accordingly, Plaintiffs' right to relief arises out of the same series of transactions or occurrences, and there are questions of law or fact common to all Defendants such that joinder is warranted and appropriate here."
Several queries: first, can plaintiffs allege facts as mere "e.g."s? Their description of the infringing acts is beyond general and vague! Second, when you have 15 or more plaintiffs, how much damages does each actually get? The sheer number of plaintiffs indicates that these suits are meant as a deterrent to on-line infringement, rather than as a means to redress actual injury.
But, the fun doesn't stop. Plaintiffs in the above case also filed an ex parte motion for leave to take immediate discovery on a third party ISP to determine the true identies of the Doe defendants.
"Plaintiffs intend to serve a [Federal Rule of Civil Procedure] Rule 45 subpoena on the ISP seeking documents that identify each Defendant's true name, current (and permanent) addresses and telephone numbers, e-mail addresses, and Media Access Control ("MAC") addresses. Without this information, Plaintiffs cannot identify the Doe Defendants or pursue their lawsuit to protect their copyrighted works from repeated infringement."
A glance at the attached "proposed order" shows that the ISP is Indiana University-Purdue University...so IU students, look out!
Also filed with the motion was a brief and affidavit, with attached exhibits of similar orders granted in other district courts. (S.D. Ind.; W.D.Wis.; N.D. Ill; N.D. Ind.; E.D. Wis; C.D. Ill.)
Faithful readers of OTCS, you guessed it. Virtually identical complaints, ex parte motions (and affidavits from the same individual, Carlos Linares) were filed in the other Doe cases: Elektra Enter. Group Inc. v. Does 1-11, (1:-08-cv-10140-NG; filed 1/30/08; D.Mass); Arista Records LLC v. Does 1-3 (1:08-cv-10139-NG; filed 1/30/08); Atlantic Recording Corp. v. Does 1-14 (1:08-cv-00028-JAW; filed 1/30/08; D.Maine); Arista Records LLC v. Does 1-36 (0:08-cv-00278-DWF-AJB; filed 1/30/08; D.Minn - 2d Div.); Arista Records LLC v. Does 1-5; 3:08-cv-00523-GEB-TJB; filed 1/30/08; order granting ex parte discovery on Princeton University 1/30/08; D.N.J); and Arista Records LLC v. Does 1-10 (5:08-cv-00108-NPM-GJD; filed 1/30/08; N.D.N.Y.; proposed order indicates discovery sought on Ithaca College).
I wonder how the clerks of each of the above courts would feel knowing plaintiffs are filing form-complaints and motions with the court? Are the district courts a processing center for the RIAA?
Jordan Greenberger, Esq.
J. Greenberger, PLLC. A boutique law practice in New York City concentrating on copyright, trademark, litigation and related matters.
