Billboard reports that the National Music Publishers Association ("NMPA") has sent take-down notices to 50 commercial lyric sites operating without licenses. The article highlights the site RapGenius. The article further reports that David Israelite, Chief Executive of the NMPA, said that the take-down notices are a precursor to the filing of lawsuits against the unlicensed sites for copyright infringement.
Yash Raj Films (USA), Inc. v. Dishant.com LLC, No 1:08-cv-02715-ENV-RML (E.D.N.Y. filed Dec. 15, 2009) - District Court grants pro se defendants' motion to dismiss for lack of personal jurisdiction pursuant to FRCP 12(b)(2)(4) and New York's long-arm jurisdiction statute, CPLR 302. Defendants' website - which provides access to digitized versions of Indian songs, movies and images that users may stream or download ringtones - is accessible in NY, but does not constitute transaction of business in NY, tortious conduct in NY, or out-of-state tortious conduct causing injury in NY; plaintiff's request for jurisdictional discovery denied.
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
In Capitol Records v. VideoEgg, defendant's motion to dismiss for improper venue and lack of jurisdiction was denied, but the case was transferred to California. [Article.]
The jurisdiction discussion focused on defendant's website and New York's long-arm jurisdiction statute (did they "transact business in New York?"). With respect to the transfer request, the court analyzes 7 factors for a transfer under 28 U.S.C. 1404.
No. 1:08-cv-05831-HV-DCF (Doc. 57 filed Mar. 5, 2009)
The District Court, Southern District of New York, has found that personal jurisdiction exists over MP3tunes but not over its CEO, Michael Robertson. (Background here.) Further, venue and forum were proper, such that the suit will not be transferred to the Southern District of California.
Capitol Records Inc. v. MP3tunes LLC, No. 07-cv-9931, 10/3/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Sept. 29, 2008).
PERSONAL JURISDICTION
The case analyzed personal jurisdiction over both MP3tunes and Robertson under New York's long-arm statute (CPLR 302). Because MP3tunes is an interactive website, provides users with software, transfers of music files, and allows for the exchange of e-mails/postings, the court held that MP3tuns "transacts business in New York" under the long-arm statute. Further, the website's minimum contacts with New York meant that the assertion of personal jurisdiction would not offend "traditional notions of fair play and substantial justice."
Robertson, however, was not subject to the court's personal jurisdiction. There was no competent evidence that the CEO's only activities in New York (a single meeting and a speaking engagement at an industry forum) related to plaintiffs' claims. Nor was there competent evidence to show that Robertson exercised control over the corporations allegedly infringing activities in New York (important, because an individual defendant may also be subject to jurisdiction under New York's long-arm statute if a corporate defendant is acting as his agent).
VENUE A defendant "may be found", pursuant to 28 U.S.C. 1400(a), in any district where the defendant is subject to personal jurisdiction. Therefore, the motion to dismiss for improper venue was denied.
TRANSFER The Court examined nine transfer-factors and denied defendants' motion to transfer the action.
(a) U2 + LiveNation = a 12-year global contractual relationship (including concert promotion, merchandising and the band’s website; album distribution and publishing will still be handled by Universal...for now).
(b) Amazon + Grand Theft Auto IV = gamers able to download music discovered via the game's 150 song soundtrack and play on portable devices.
Jordan Greenberger, Esq.
J. Greenberger, PLLC. A boutique law practice in New York City concentrating on copyright, trademark, litigation and related matters.
