District of Massachusetts Grants Prince’s Estate Permanent Injunction Against YouTuber Who Repeatedly Posted Live Prince Performances

Comerica Bank & Trust, N.A. v. Habib, No. 17-12418-LTS, 2020 WL 58527 (D. Mass. Jan. 6, 2020).

Prince’s estate alleged that Defendant committed copyright infringement and violated the federal civil anti-bootlegging statute by recording and posting several videos of live Prince concerts to YouTube. In response, Defendant argued fair use, which failed as the District of Massachusetts found that all four factors weighed in favor of Prince’s estate.

Defendant also moved for summary judgment based on various other defenses, including non-commercial use and good faith use, which the court denied as well.

Moreover, Prince’s estate moved to increase the award of statutory damages under the Copyright Act based on Defendant’s willful infringement. The court granted this motion as Defendant’s continued posting of similar videos and insistence that “every artist encourages people to post videos,” which showed disregard for musician rights.

As to Plaintiff’s anti-bootlegging claim, the Court discussed how the statute is rarely litigated and noted that the question of “whether [the statute’s] protections are descendible and may be invoked by the estate of a once-protected performer” has never been addressed. The court provided Plaintiffs the option to file a supplemental brief on the question if it wishes.

The court also denied Defendant’s defense that Prince’s broad statement that “nobody sues their fans . . . fans sharing music with each other, that’s cool” acted as an implied license to post the videos. As such, the Court granted Plaintiff’s motion for a permanent injunction and scheduled a damages trial for March 2, 2020. [JM]

2d Cir. Addresses DMCA "Repeat Infringer" Policy In MP3Tunes Appeal; Finds Only A Single Statutory Damages Award For Infringed Composition & Sound Recording; Addresses Many Other Copyright Law Issues

EMI Christian Music et al. v. MP3Tunes, No. 14-4369 (2d Cir. Oct. 25, 2016).

In the MP3Tunes appeal, the Second Circuit vacated the District Court’s grant of partial summary judgment to the defendants based on its conclusion that MP3tunes qualified for safe harbor protection under the DMCA because the District Court applied too narrow a definition of “repeat infringer”; (2) reversed the District Court’s grant of judgment as a matter of law to the defendants on claims that MP3tunes permitted infringement of plaintiffs’ copyrights in pre‐2007 MP3s and Beatles songs because there was sufficient evidence to allow a reasonable jury to conclude that MP3tunes had red‐flag knowledge of, or was willfully blind to, infringing activity involving those categories of protected material; (3) remanded for further proceedings related to claims arising out of the District Court’s grant of partial summary judgment; and (4) affirmed the judgment in all other respects (relating to statutory damages for sound recordings and compositions, cover art liability, respondeat superior liability for MP3Tunes executives, personal jurisdiction, vicarious and contributory liability, statutory damages for singles & compilations, and punitive damages).

The plaintiff record labels and music publishers argued that MP3tunes never reasonably implemented a repeat‐infringer policy.  In addressing this argument, the Second Circuit answered two questions: first, whether certain MP3tunes users qualified as “repeat infringers”; and second, if so, whether MP3tunes reasonably implemented a policy directed at them.  As to the first question, the Second Circuit held "all it takes to be a 'repeat infringer' is to  repeatedly upload or download copyrighted material for personal use."  (Emphasis in original)  Having answered that question, the Court then found that MP3tunes did not "even try to connect known infringing activity of which it became aware 2through takedown notices to users who repeatedly created links to that infringing content in the sideload.com index or who copied files from those links...A jury could reasonably infer from that evidence that MP3tunes actually knew of specific repeat infringers and failed to take  action "

The Court also, notably, addressed statutory damages and whether it was improper to make only a single award where there are different owners of the copyright in the sound recording and in the composition.

 In our view, then, Congress did not intend for separate statutory damages awards for derivative works such as sound recordings, even when the copyright owner of the sound recording differs from the copyright owner of the musical composition.    In sum, the District Court’s decision to permit only one award of statutory damages for the musical composition and corresponding sound recording comports with both the plain text and the legislative history of the Copyright Act.  We therefore affirm that part of the judgment.

In addition to attacking the District Court’s exercise of personal jurisdiction over him, the individual defendant (MP3Tune's CEO) argued that there was insufficient evidence to support the jury’s finding that he was vicariously or contributorily liable for MP3tunes’s infringements.  The Second Circuit disagreed,

Questions Whether LiveNation Willfully Infringed Run-DMC Photos; 9th Cir.

Friedman v. Live Nation Merch., No. 14-55302 (9th Cir. Aug. 18, 2016).

In a copyright dispute over the use of photographs that the plaintiff took of the hip hop group Run-DMC, defendant Live Nation stipulated that it infringed the plaintiff photographer's copyrights when it used his photos without his authorization on t-shirts and a calendar.  Before the 9th Circuit was the question of whether there was sufficient evidence in the record to permit a jury to conclude that Live Nation committed willful copyright infringement, making it liable for additional damages under 17 U.S.C. § 504(c)(2); whether a jury could conclude that Live Nation knowingly removed copyright management information (“CMI”) from the photographs in violation of 17 U.S.C. § 1202(b) [the DMCA]; and whether the plaintiff could recover statutory damages awards under section 504 of the Copyright Act measured by the number of retailers who purchased infringing merchandise from Live Nation, even though the plaintiff photographer did not join those retailers as defendants in his suit.

The 9th Circuit held: (1) that there was a triable issue of fact as to whether Live Nation’s infringement was willful, and that the district court therefore erred in granting summary judgment to Live Nation on willfulness; (2) the plaintiff photographer could prevail upon a showing that Live Nation distributed his works with knowledge that copyright management information had been removed, even if Live Nation did not remove it, and accordingly summary judgment should not have been granted because there was a triable issue of fact as to whether Live Nation distributed the photographs with the requisite knowledge; and (3) the district court correctly held that the plaintiff photographer was limited to one award per work infringed by Live Nation because he did not name any of the alleged downstream infringers as defendants in the case ("A plaintiff seeking separate damages awards on the basis of downstream infringement must join the alleged downstream infringers in the action and prove their liability for infringement. ").  Notably, on third question involving downstream infringers, the 9th Circuit rejected a "mass marketing" exception that some lower courts had adopted.

BMI May Recover More Than Minimum Statutory Damages After Nightclub's Default

BMI v. Crocodile Rock Corp., No. 14-3891 (3d Cir. Oct. 30, 2015) (non-precedential opinion).

The Third Circuit held that performance rights organization BMI could recover a default judgment for more than the minimum statutory damages available under the Copyright Act.  The Court found that so long as the award falls within the limits set by statute, the trial court's discretion and sense of justice were controlling in setting the amount of the award, even in the case of a default judgment and where the defendant's alleged profits are less than the amount awarded.  Accordingly, the $35,000 award of statutory damages was affirmed.

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

11th Cir. Finds Summary Judgment Properly Granted In Favor of BMI And Against Tavern; Adopts 2nd Cir. Davis v. Blige

BMI v. Evie's Tavern Ellenton, Inc., No. 13-15871, 2014 BL 329074 (11th Cir. Nov. 21, 2014).

The 11th Circuit affirmed summary judgment in favor of the performing rights society BMI, rejecting the defendant-tavern's argument that there were questions of material fact as to the copyright ownership of the musical compositions at issue and as to whether defendants were innocent infringers.  With respect to the chain-of-title for the five songs at issue, the court examined each chain of title, and further found that the district court properly found that BMI could be awarded judgment on each song in addition to the copyright holder (generally, the music publisher who owned the copyright).  As BMI agreed to be responsible for all costs and expenses pursuing infringement actions based on the titles that BMI licenses from copyright owners, the number of them to whom summary judgment is granted made no difference in the award of damages, attorneys' fees and costs.  Thus, there was no error in granting summary judgment to the other plaintiffs (the copyright owners) under Fed. R. Civ. P. 61.

As to innocent infringement, the Court affirmed that is not a defense to summary judgment liability, and instead is only a consideration as to the amount of statutory damages to award.  The court also found that an award of attorney's fees was appropriate.  Notably, the 11th Circuit joined the rule adopted by the Second Circuit in Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007) that a copyright co-owner may maintain and recover in a copyright infringement action without joining other co-owners.  See fn. 2.

Article re Registering Multiple Works In A Single Copyright Registration

Marc Jacobson and Marc Pellegrino, "Registering Multiple Musical Works in a Single Copyright Registration", NYSBA Entertainment, Arts and Sports Law Journal, Vol. 24 No. 2, pp. 13-16 (Summer 2013).

This article clarifies:

"...if music is being commercially released exclusively via sale of a complete album, one is only entitled to one statutory damage award for any infringements therein.  If, on the other hand, the individual songs on that album, which were registered as part of the single application, are also 'issued' individually, those individually released songs gain full statutory damage protection."

The article was a reply to an earlier published article wherein the author had suggested that a single copyright application for more than one work can retain all the legal remedies afforded by the Copyright Act while saving money by avoiding multiple registration fees. Citing Bryant v. Media Rights Prods., Inc., 603 F.3d 135 (2d Cir. 2010), and Arista Records LLC v. Lime Group LLC, 2011 WL 1311771 (S.D.N.Y. 2011), the article suggests that traditional registration of each track and each song may still provide the best possible protection for sound recordings and musical compositions.

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.

$6.6 Million Copyright Infringement Judgment In Lyrics Website Case

Peermusic III v. Live Universe, Inc., No. 2:09-cv-06160 (C.D. Cal. filed Oct. 9, 2012) [Doc. 215].

Defendants operated song lyric websites that infringed copyrights held by a group of music publishers.  The company was run by the co-founder of MySpace Inc.  The Court granted a default judgment to plaintiffs and awarded statutory damages in the sum of $12,500 per each of the 528 songs shown to be infringed for a total of $6,600,000.  Plaintiffs were also awarded their attorneys fees.

Kudos to my former colleagues Paul Fakler and Ross Charap, who represented Plaintiffs.

ReDigi Sued For Copyright Infringement

Capital Records Inc. v. ReDigi Inc., No. 1:12-cv-00095 (SDNY filed 1/6/2012).

Plaintiff alleges copyright infringement arising from defendant's contributory, vicarious, and inducement of the willful and systemic use of plaintiff's original sound recordings on defendant's "ReDigi" music service. Defendant is an internet business whose stated purpose is to help consumers buy and sell "used" digital music files. Plaintiff seeks $150,000 per infringement (maximum statutory damages for willful infringement).

Karaoke Damages Limited On Per "Work" Basis

Sony/ATV Music Publishing LLC v. D.J. Miller Musict Distributors, Inc. et al., Index No. 3:09-cv-01098 (M.D. Tenn. filed Oct. 5, 2011).

Plaintiffs allege that they are the owners/administrators of music copyrights in numerous original music compositions. Plaintiffs further allege that since at least early 2006, all of the named defendants had been participating in the manufacture, reproduction, distribution, advertising, promotion and offering for sale of illegal and unauthorized copies of Plaintiffs’ music compositions in the form of karaoke recordings in various formats for discs and Internet downloads.

The Defendants argue that Plaintiffs seek damages beyond what is permitted under the Copyright Act because they seek damages on a per infringement basis and not a per work basis. The Defendants allege that Plaintiffs are improperly seeking 1,406 statutory awards because the lists annexed to the complaint of allegedly infringing songs contain many duplicate listings of songs; Defendants argue that, once these duplicate listings are removed, there are only 448 “works” for which Plaintiffs could be able to recover statutory awards.

The Court agreed with Defendants. "The plain language of the Copyright Act indicates that a single statutory award is appropriate for all infringements related to a single copyrighted work". Motion granted.

Statutory Damages Awarded To EMI For Willful Infringement

EMI Entertainment v. Karen Records, Inc. et al, No. 1:05-cv-00390 (S.D.N.Y. filed Aug. 26, 2011) (Holwell, J.) [Doc. 110 Memorandum Opinion and Order].

The court found that defendants willfully infringed EMI's copyrights in the four musical compositions at issue and awarded EMI $25,000 for infringement of each composition (total $100,000) for which all defendants -- corporate and individual -- shall be jointly and severally liable.

The Court had previously granted EMI summary judgment on liability as to sales on or after January 14, 2002 of albums containing the four musical compositions. 603 F. Supp.2d 759 (SDNY 2009). Now, the Court analyzed EMI's statutory damages request and found that defendants infringement was willful based on defendants industry experience and copyright ownership, prior lawsuit regarding similar practices and a specific warning. The next step was determining the amount of damages ($25,000 per work) and then analyzing whether the individual defendants should be jointly and severally liable. They were because they had the right and ability to supervise the infringing activity and a direct financial interest in such activities.

Plaintiff Cannot Swap Election Of Statutory Damages

Arista Records LLC v. Lime Group LLC, NYLJ 1202490027721, at *1 (SDNY, Decided April 11, 2011)

The Court finds that Defendants would be unduly prejudiced if Plaintiffs were permitted to amend their election of remedies under the Copyright Act, just one month before trial. Accordingly, Plaintiffs may not seek to recover actual damages for those sound recordings with respect to which they have already elected to recover statutory damages.

"Work" Defined For Statutory Damages Against Limewire

Arista Records LLC v. Lime Group LLC, 06 CV 5936 (KMW), NYLJ 1202489939713, at *1 (SDNY, Decided April 4, 2011)

The Court had granted summary judgment in favor of Plaintiffs on their claims against Defendants LimeWire LLC ("LW"), Lime Group LLC ("Lime Group"), and Mark Gorton (collectively, "Defendants") for secondary copyright infringement. The Court found that Defendants had induced multiple users of the LimeWire online file-sharing program ("LimeWire") to infringe Plaintiffs' copyrights. The litigation is now in the damage phase, with a trial on damages scheduled. Plaintiffs identified approximately 11,205 sound recordings that had allegedly been infringed through the LimeWire system. Of those, approximately 9,715 are sound recordings as to which Plaintiffs have elected to seek statutory damages under Section 504(c)(1) of the Copyright Act.

On March 10, 2011, the Court held that Plaintiffs are entitled to a single statutory damage award from Defendants for each "work" that was infringed by a direct infringer on the LimeWire system. The parties now seek a resolution of a threshold legal dispute regarding what constitutes a "work" as to which Plaintiffs can recover a statutory damage award.

The Court holds that both an album, and a sound recording that Plaintiffs issued as an individual track may constitute a "work" infringed. Accordingly, Plaintiffs are entitled to a statutory damage award for each sound recording that was infringed on the LimeWire system during the time period that Plaintiffs made that sound recording available as an individual track. However, for those sound recordings that Plaintiffs issued only as part of an album, Plaintiffs can recover only one statutory damage award for that album, not for each individual sound recording.

LimeWire Damages in Trillions "Absurd"

Arista Records LLC v. Lime Group LLC, 06 CV 5936, NYLJ 1202486126807 (S.D.N.Y. Mar. 10, 2011)

The Court already had granted summary judgment in favor of Plaintiffs on their claims against Defendants LimeWire LLC ("LW"), Lime Group LLC ("Lime Group"), and Mark Gorton (collectively, "Defendants") for secondary copyright infringement. The Court found that Defendants had induced Multiple users of the Lime Wire online file-sharing program ("Lime Wire") to infringe Plaintiffs' copyrights. The litigation is in the damage phase.

Plaintiffs identified approximately 11,000 sound recordings that they allege were infringed through the Lime Wire system. For the over 9,500 post-1972 sound recordings, Plaintiffs elected to seek statutory damages under Section 504(c)(1) of the Copyright Act.

"Squarely before the Court is a threshold dispute regarding Plaintiffs entitlement to statutory damage awards against Defendants: Where, as here, Defendants have been found liable for inducing numerous individual Lime Wire users infringe Plaintiffs' copyrights, may Plaintiffs recover from Defendants a separate statutory award for each individual's infringement of a work as to which Defendants are jointly and severally liable? Or, rather, are Plaintiffs limited to one statutory damage award per work from Defendants, regardless of the number of direct infringers of that work with whom Defendants are jointly and severally liable?"

The Court held that Plaintiffs were entitled to a single statutory damage award from Defendants per work infringed.

If one multiplies the maximum statutory damage award ($150,000) by approximately 10,000 post-1972 works, Defendants faced a potential award of a billion dollars in statutory damages alone. If Plaintiff's were able to pursue a statutory damage theory predicated on the number of direct infringers per work, Defendants' damages could reach into the trillions. As Defendants noted, Plaintiffs were suggesting an award that is "more money than the entire music recording industry has made since Edison's invention of the phonograph in 1877." This result is absurd, the Court found.

In sum, the Court found that the most plausible interpretation of Section 504(c) is one that authorizes only a single statutory damage award per work against a secondarily liable defendant, particularly in the context of the mass infringement found in the context of online peer-to-peer file sharing. Accordingly, the Court held that Plaintiffs were entitled to a single statutory damage award from Defendants per work infringed, regardless of how many individual users directly infringed that particular work.

$6.5mil Statutory Damages In Copyright Case

Arista Records LLC v. Usenet.Com, Inc., 07 Civ. 8822 (HB), NYLJ 1202472409489 (SDNY, Decided September 16, 2010)

"In this copyright infringement action, this Court previously granted Plaintiffs'² motion for summary judgment in its entirety, granted Plaintiffs' motion for terminating sanctions in part, and dismissed Defendants'³ cross-motion for summary judgment as moot. See Arista Records, LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 129 (S.D.N.Y. 2009) (hereinafter the "Liability Decision"). The action was then referred to Magistrate Judge Theodore H. Katz for an inquest on damages. On February 2, 2010, Magistrate Judge Katz issued a detailed and articulate 23-page Report and Recommendation ("R&R"), in which he recommended that Defendants be held jointly and severally liable for statutory damages in the amount of $6,585,000. On February 15, 2010, Defendant Gerald Reynolds timely filed objections to Magistrate Judge Katz's R&R pursuant to 28 U.S.C. §636(b)(1) and Federal Rule of Civil Procedure 72.⁴ For the following reasons, after considering Reynolds's objections, and reviewing the remainder of the R&R for clear error, this Court approves, adopts, and ratifies Magistrate Judge Katz's R&R in its entirety."

File Sharing Jury Award Reduced 90%

Sony BMG Music v. Tenenbaum, No. 07 Civ 11446 (D. Mass. memo and order filed July 9, 2010):

This copyright case raises the question of whether the Constitution’s Due Process Clause is violated by a jury’s award of $675,000 in statutory damages against an individual who reaped no pecuniary reward from his infringement and whose individual infringing acts caused the plaintiffs minimal harm. I hold that it is.

Joel Tenenbaum (“Tenenbaum”), the defendant in this action, was accused of using file- sharing software to download and distribute thirty copyrighted songs belonging to the plaintiffs. The plaintiffs are a group of the country’s biggest recording companies. Their lawsuit against Tenenbaum is one of thousands that they have brought against file sharers throughout the country. Tenenbaum, like many of the defendants in these suits, was an undergraduate when his file- sharing was detected.

2d Cir Rules On Copyright Statutory Damages

Bryant v. Media Right Productions Inc., 09-2600-cv, 5/5/10 NYLJ "Decision of Interest" (2d Cir. decided April 27, 2010).

Affirming lower court's finding that musical albums were compilations, and therefore each infringer was liable for only one award of statutory damages per album, rather than one award per song.

"...[I]nfringement of an album should result in only one statutory damage award. The fact that each song may have received a separate copyright is irrelevant to this analysis." The Court expressly declined to adopt an"independent economic value test" (adopted by other circuits) that would have allowed a statutory damage award for each song on the album because the Copyright Act specifically states that all parts of a compilation must be treated as one work for the purpose of calculating statutory damages. "We cannot disregard the statutory language simply because digital music has made it easier for infringers to make parts of an album available separately." See also fn. 6, collecting local district court cases that have considered whether a compilation is subject to only one statutory damage award (and noting that those courts reached the same conclusion).

The Court then went on to review the District Court's decision on intent (it had found that the conduct was innocent, not willful infringement), its calculation of statutory damages ($2,400), and its decision not to award attorneys' fees.

Statutory Damages Should Relate to Actual Damages

Yurman Studio, Inc. v. Castaneda, 07 Civ. 1241 (SAS)(S.D.N.Y. November 19, 2008), District Judge Shira A. Scheindlin reminds us of the well settled principle that "At the end of the day, 'statutory damages should bear some relation to actual damages suffered' [citing RSO Records v. Peri, 596 F.Supp. 849,862 (SDNY 1984); New Line Cinema Corp. v. Russ Berrie & Co., 161 F.Supp.2d 293,303 (SDNY 2001); 4 Nimmer Sec. 14.04[E][1] at 14-90(2005)] and 'cannot be divorced entirely from economic reality'"
Post from Recording Industry vs. The People

Amazon Faces False Attribution Claim in Infringement Suit For Unauthorized Digital Downloads

In Taylor v. Amazon.com et al., No. 2:08-cv-00061-wks (D. Vermont filed Mar. 17, 2008), the core of plaintiff's claim is:

Defendants have placed on their website and have offered for sale MP3 files of the thirteen sound recordings Plaintiff created which QuiXote Music pressed and marketed [with authorization from plaintiff, pursuant to a written agreement] ... The page on Defendants' website falsely indicates the copyright in [sound recording and composition] as being "(c) 2008 QuiXote". [However,] the compact discs pressed and marketed [with written authorization] by QuiXote Music beginning in 2001 bear multiple clear indications that the copyright in [the sound recordings and compositions] belong to Plaintiff.

Nowhere on the compact discs pressed and marketed by QuiXote Music is there any representation that the copyright in Cheshire Tree Suite belongs to QuiXote Music. On information and belief, QuiXote Music has never represented that it owns the copyright in [the sound recording and compositions]. [Eds: This may explain why QuiXote, the European based manufacturer and distributor of the album, is not a party to this suit.]

Thus, notwithstanding the basic infringement allegation (unauthorized sale of the sound recording via defendants' online digital music store), the central theme of Plaintiff's complaint is a moral rights theory of false attribution. In addition to the above quoted material, the theme of a moral rights claim as central to this action is buttressed by plaintiff's allegations of "deliberate misstatement of copyright ownership", and reference to the Berne Convention as a source of protection.

Nonetheless, Plaintiff's demand for relief is limited to an injunction prohibiting Defendants "from the infringement and unauthorized use of Plaintiff's copyright."

Several Observations and Comments:

(1) Plaintiff does not specify whether the sound recordings and/or compositions are registered. Rather than list (or include as an exhibit) any SR registration number, Plaintiff merely alleges that the works "are protected under the Untied States Code, including without limitation the Copyright Act of 1976 and the Digital Millennium Copyright Act." If unregistered, Plaintiff's claim has a fatal problem (17 U.S.C. 411). (Alternatively, her demand for fees and statutory damages may be barred, 17 U.S.C. 412. Homkow v. Musika Records Inc., No. 04 Civ. 3587, N.Y.L.J. "Decision of the Day", Mar. 17, 2008 (S.D.N.Y. decided Feb. 25, 2008)). Notable, however, is the filing of an AO Form 121 mailed to the Register of Copyright pursuant to 17 U.S.C. 508. This form, entitled "Report on the Filing or Determination of an Action or Appeal Regarding a Copyright", presumably was filed with the relevant Registration Numbers, i.e., not left blank? (However, a search of the Copyright Office's public catalogue did not find any relevant SRs.)

(2) What is the process by which digital music stores obtain information regarding copyright ownership?

(3) Where is the European label? Review of Plaintiff's agreement with QuiXote Music would seem highly relevant to whether Plaintiff granted the label authorization to distribute the sound recordings in intangible electronic or digital form, e.g., MP3?