K. Perry Granted Judgment as a Matter of Law in “Dark Horse” Copyright Infringement Suit

Gray; et al. v. Perry; et al., No. 2:15-cv-05642-CAS-JCx, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020)

The U.S. District Court for the Central District of California granted a renewed motion for judgment as a matter of law filed by Katy Perry, Juicy J, and others involved in producing Perry’s song “Dark Horse” (“Defendants”) after a jury returned a verdict in favor of Plaintiffs in August 2019. The trial focused on Plaintiffs’ claims that Perry’s song “Dark Horse” infringed an 8-note ostinato in their song “Joyful Noise.” Applying the 9th Circuit’s “extrinsic test,” the court held that it could not conclude as a matter of law that the “allegedly original individual elements” of the ostinato in question were independently protectable. Additionally, the court held that the 8-note ostinato from “Joyful Noise” is not a sufficiently original combination of those individually unprotectable elements and thus the Plaintiffs failed to satisfy the “extrinsic test.” Furthermore, the court determined that even if the ostinato combination were protectable, under the Led Zeppelin case recently decided by the 9th Circuit, to find infringement the allegedly infringing ostinato in “Dark Horse” and the 8-note ostinato from “Joyful Noise” would have to be “virtually identical,” which the court found they were not. As a result, the court concluded that the Defendants were entitled to judgment as a matter of law on the copyright infringement claim.

Covenant Not To Sue Defeats "This Land Is Your Land" Copyright Challenge

Saint-Amour v. Richmond Organization, Inc., No. 16-cv-4464-PKC, 2020 WL 978269 (S.D.N.Y Feb. 28, 2020).

The court dismissed a copyright suit challenging the validity of the Defendants’ interest in the copyright for the famous song “This Land is Your Land.” The Plaintiffs filed the lawsuit seeking a declaratory judgment that the Defendants did not own a valid copyright in the song, but rather it is in the public domain. Plaintiffs stated goal was to make their own recording and music video using the lyrics from the song with a different melody, but they were concerned that the Defendants would enforce their copyright against them if they did. However, on April 23, 2019, Defendants and Woody Guthrie Publications delivered a broadly worded covenant not to sue the Plaintiffs for any infringement in the song. As a result, the Defendants filed a motion to dismiss asserting that a live case or controversy no longer existed, so the court lacked subject matter jurisdiction. The court agreed with Defendants, cited Nike, Inc. v. Already, LLC, 568 U.S. 85 (2013) to support its finding that the covenant resolved the matter, and granted the motion to dismiss.

Class Certification Denied In Foreign Streaming Royalties Case

Leonard Williams v. Warner Music Group Corp., No. 2:18-cv-09691-RGK-PJW (C.D. Cal. Feb. 27, 2020) [Doc. 76]

On December 21, 2018, Leonard Williams and The Lenny Williams Production Company (“Plaintiffs) filed a class action against Warner Music Group, Warner Bros. Records, and several Doe defendants. The complaint asserted various causes of action based on the alleged failure by the Defendants to pay the full royalty amounts due to Williams and other artists for digital streaming of songs in foreign countries. The Plaintiffs then filed a motion to certify the putative class where the proposed class encompassed artists who have an agreement with Warner that either: (1) expressly provides for streaming royalties, (2) does not expressly provide for streaming royalties, but contains a general licensing provision, or (3) has neither a digital streaming or general licensing provision. In ruling on the motion to certify, the court recited the typicality requirement of Federal Rule of Civil Procedure 23(a)(3) and found that Williams’ contract fell into the third category of contracts, which presented unique defenses that “threaten[ed] to become the focus of th[e] litigation.” As a result, the Court concluded that under Federal Rule of Civil Procedure 23(a)(3) Plaintiffs’ claims or defenses were not typical of the class he sought to represent and denied the motion to certify the class.

Car Audio Systems Did Not Violate Audio Home Recording Act of 1992

Alliance of Artists and Recording Cos. V. Denso Int’l Am., Inc., No. 18-7141, 18-7172, 2020 WL 425058 (D.C. Cir. Jan. 28, 2020).

In 2014, the Alliance of Artists and Recording Companies, Inc. (“”AARC”) filed two separate lawsuits against various automobile manufacturers and suppliers, including General Motors, Ford Motor Company, and Mitsubishi, for violating the Audio Home Recording Act of 1992 (“AHRA”). These cases were subsequently consolidated and on March 23, 2018 the District Court for the District of Columbia granted summary judgment for the defendants as to all but one of AARC’s claims. AARC then appealed the judgment and the D.C. Circuit Court of Appeals affirmed the lower court’s order. In sum, the court found that: (1) digital audio recorders must be able to create a “digital audio copied recording” that qualifies as a “digital music recording,” as both terms are defined under the AHRA in order to be covered under it; (2) the hard drives in the cars were not “digital musical recordings” under the AHRA because they contain material other than sounds on them, such as “software and data,” so the devices that contain the hard drives do not qualify as “digital audio recording devices” the AHRA; and (3) it is irrelevant that the hard drives save the digital musical recordings separately from the other data and material on the hard drives because the AHRA’s definition of “digital musical recording” looks to the entire hard drive, and not the separate partitions of the hard drive.

Peloton’s Antitrust Counterclaim Dismissed in Copyright Suit brought by Various Music Publishers

Downtown Music Publishing LLC, et al. v. Peloton Interactive, Inc., No. 19-cv-2426-DLC, 2020 WL 469639 (S.D.N.Y. Jan. 29, 2020)

In March of 2019, fifteen music publishers (the “Music Publishers”), whom are all members of the National Music Publishers’ Association (“NMPA”), filed a lawsuit against Peloton Interactive for copyright infringement.  The suit alleged that Peloton had infringed various works owned by NMPA members when Peloton played sound recordings of the works in its recorded workout videos without obtaining licensing agreements. Prior to the filing of the suit, Peloton had made attempts to negotiate licensing agreements with both NMPA and several of the Music Publishers separately to no avail. Upon initiation of the suit, Peloton asserted an Antitrust counterclaim against the NMPA and the Music Publishers alleging that the NMPA was seeking to obtain “supracompetitive license terms” from Peloton by having the Music Publishers refuse to deal with Peloton. In response, the Music Publishers and the NMPA filed a motion to dismiss the counterclaim.  On January 29, 2020, the court granted the motion to dismiss, reasoning that even taking Peloton’s allegations as true, it did not illustrate a legally sufficient “relevant market” that such anticompetitive behavior harmed.

Use of Sample in Rap song Held Fair Use by Second Circuit

Estate of James Smith v. Graham, No. 19-28, 2020 WL 522013 (2d Cir. Feb. 3, 2020).

On February 3, 2020, the Second Circuit issued a summary order affirming a finding by the Southern District of New York that Drake and Jay-Z’s sampling of the jazz song “Jimmy Smith Rap” in their song “Pound Cake” was fair use. The court found three of the four fair use factors weighed in favor of fair use. As to factor one, the court found that the use was transformative because “Pound Cake” sent a message that was counter to that of “Jimmy Smith Rap,” and “Pound Cake” is a seven-minute song featuring only thirty-five seconds of “Jimmy Smith Rap” in its beginning. As to factor two, the court stated that it is of “limited usefulness” where the use is transformative.  The court also found the third factor weighed in favor of fair use because the amount used by Drake and Jay-Z was reasonable in sending their transformative message. Finally, the court deemed that “Pound Cake” did not usurp the market for “Jimmy Smith Rap” because there is no evidence that an active market for it exists. As a result, the sampling was fair use.

Kanye West Obtains Partial Judgment in “The Life of Pablo” Sampling Lawsuit

Andrew Green et al. v. Kanye West et al., No. 2:19-cv-00366 (D.S.C. Jan. 17, 2020) [Doc. 59].

In January of 2016, a recording of one of the Plaintiffs praying was posted to Instagram. Shortly thereafter, Kanye West used an audio sample from the prayer recording in his Grammy nominated song, “Ultralight Beam,” from his certified platinum album, “The Life of Pablo.” The Plaintiffs filed suit against Kanye and various recording studios for several claims under the Copyright Act, the Digital Millennium Copyright Act (“DMCA”), and state law. The parties are still in dispute over whether Kanye received permission to use the sample. On January 17, 2020, a federal judge in the District of South Carolina issued an order granting Kanye’s motion to dismiss one Plaintiff’s copyright claims because she is not a registered owner of the copyrighted sample at issue. The order also granted Kanye’s motion to dismiss the Plaintiff’s quantum meruit claim as it is preempted by the Federal Copyright Act. Additionally, the order denied Kanye’s motion to dismiss Plaintiff’s claims for statutory damages, attorney’s fees, and falsifying copyright management information under the DMCA because genuine issues of material fact exist as to these issues.

Photographer’s Copyright Infringement Suit Allowed to Proceed Against Music Festival But Not Against Related Entities

Bayoh v. Afropunk Fest 2015 LLC, No. 18-cv-5820-DLC, 2020 WL 229978 (S.D.N.Y. Jan. 15, 2020).

In August 2015, plaintiff Photographer Mambu Bayoh was hired by Afropunk LLC to take pictures at its Brooklyn music festival. However, in 2018 Bayoh filed suit in the Southern District of New York claiming that Afropunk, its co-CEOs, and related entities infringed the copyrights for his photographs by exceeding the scope of permission that he granted. In response to the suit, Afropunk LLC moved for summary judgment, arguing that Bayoh’s copyright registrations were invalid, that Bayoh’s license to Afropunk was an unlimited license, and that Bayoh’s suit was barred by equitable estoppel and the statute of limitations. The court was unpersuaded by these arguments as it issued an opinion and order on January 15 denying the motion as to Afropunk LLC and its co-CEOs because it failed to present sufficient evidence to support its arguments at the summary judgment stage. However, the court granted summary judgment as to Bayoh’s claims against Afropunk Fest 2015 LLC and Afropunk Global Initiative because these two entities were uninvolved in the alleged infringement against Bayoh.

Insurer Must Indemnify Fat Joe in “All the Way Up” Plagiarism Lawsuit

Cartagena v. Homeland Ins. Co. of New York, No. 19-cv-6287-CM, 2019 WL 6878243 (S.D.N.Y. Dec. 16, 2019).

On December 16, 2019, Chief Judge McMahon granted summary judgment to Rapper Fat Joe against a Defendant insurance company for refusing to indemnify and defend him in a lawsuit alleging that he plagiarized his double-platinum song “All the Way Up.”

In January of 2019, Defendant issued Plaintiff a Music Professional Liability Insurance Policy covering various claims brought against Plaintiff relating to producing and publishing music, including copyright infringement, plagiarism, and misappropriation of ideas. In March of 2019, a third party filed suit against Plaintiff claiming that he authored “All the Way Up” and that Plaintiff plagiarized it. When Fat Joe submitted an insurance claim to Defendant under the policy the Defendant denied the claim, stating that the policy didn’t cover the claims alleged in the third-party suit. Defendant also stated that Fat Joe knew that the third-party would likely make a claim but misrepresented this when taking out the policy.

The court determined that the plain language of the insurance policy covered the plagiarism and misappropriation claims alleged in the third-party lawsuit. As a result, the court granted Plaintiff summary judgment on his breach of contract and declaratory relief claims. The court also dismissed Plaintiff’s count alleging breach of implied covenant of good faith and fair dealing because it was asserted prematurely. [JM]

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]

Biggie's "Party & Bullshit" Fair Use of 1960s Song; 2nd Cir.

Oyewole v. Ora, No. 18-1311 (2nd Cir. 9/4/19)

The Second Circuit affirmed (in a summary order) the lower court’s conclusion that the Notorious B.I.G.’s 1993 song Party And Bullshit was fair use when it sampled the plaintiff’s 1968 song, whose lyrics included the phrase “party and bullshit”

Evidence Of Copying By Steve Winwood Inadmissible; 6th Cir. Affirms

Parker, et al. v. Winwood, et al., No. 18-5305 (6th Cir. 9/17/19).

6th Circuit affirms district court’s finding that the plaintiffs, who alleged the Spencer Davis Group’s famous 1966 song Gimme Some Lovin’ infringed the bass-line in their song from the prior year, failed to submit admissible evidence that Steve Winwood copied the work. The Court also affirmed the finding that the court lacked jurisdiction over one of the defendants, who resides in the UK. The evidence at issue was found to be hearsay: interviews with Steve Winwood. The Court also rejected arguments of striking similarity, which were not timely raised. Notably, there was a strong dissent, which focused on the plaintiffs’ expert report concerning the similarity of the works and observed that there is a “fine line” between inspiration and infringement.

NWA Infringement Claims Trimmed To Composition Only, But Court Does Not Adopt 3-Year Damages Limitation

Mitchel v. Capitol Records, 3:15-CV-00174-JHM (W.D. Ky. Dec. 18, 2017).

Plaintiff alleges infringement of his 1977 song in the 1989 NWA rap song "Striaght Outta Compton."  Defendants made two motions for partial summary judgment.  First, the defendants argued that plaintiff is precluded from recovering any damages for infringements that occurred more than three years prior to his filing of the law suit, as barred by the statute of limitations.  Second, defendants argued that plaintiff did not own the sound recording for his song (only the musical composition) and thus could not recover for any infringement of the sound recording.  The former motion was denied, and the latter was granted.

As to the statute of limitations defense, the Court held that notwithstanding the Supreme Court's Petrella decision, Sixth Circuit precedent "defines accrual of a copyright claim as occurring when the plaintiff “knew of the potential violation or is chargeable with such knowledge.”  Continuing, "When the [Petrella] opinion is read in conjunction with footnote 4, which acknowledges that most circuits will modify this rule so as to focus on the date of 'discovery' as opposed to the date of 'occurrence,' then Petrella reiterates what the Sixth Circuit already requires: that damages be limited to those claims for infringement that accrued within three years of the initiation of the suit, with accrual being determined by the rules of the 8 circuit (until the Supreme Court “passe[s] on the question')."  Because Plaintiff had presented evidence that his claim did not accrue until 2014 (when it was allegedly discovered), his claim was not time-barred.

As to the sound recording, the Court held that defendant had provided proof that plaintiff did not own the sound recording.  The plaintiff's evidence (e.g., a mechanical license agreement) at best established his ownership of the musical work/composition.

Rick Ross "Hustlin'" Case Revived After 11th Cir. Holds Copyright Registrations Should Not Have Been Invalidated Absent Proof Of Scienter

Roberts v. Gordy, No. 16-12284 (11th Cir. Dec. 15, 2017).

The 11th Circuit held that, in a case brought by hip-hop artists over the use of their song "Hustlin'" in the dance song "Party Rock Anthem," the lower Court erred in invalidating the plaintiffs' copyright registrations.  The District Court had sua sponte raised the issue of invalid copyright registrations and failure to demonstrate ownership in dismissing the case at summary judgment.

First, the Appellate Court held that invalidity was not raised as an affirmative defense, and therefore should not have been the basis for dismissal, as it was waived by the defendants.  Second, the Appellate Court held that the lower court applied the wrong standard -- specifically on the element of scienter -- in finding that there had been a fraud on the copyright office in obtaining the registrations.  

Rappers are skilled in poetry and rhythm—not necessarily in proper copyright registration procedures. While error is not generally a strong legal argument, it is a sufficient counter to a claim of Fraud on the Copyright Office. This is not a case where Rapper A attended a Rapper B concert, heard a delightful song, stole the composition, and fraudulently registered it with the Copyright Office—far from it. There is no dispute by any party that Appellants authored and created Hustlin’, and there is no dispute that they continue to receive the writers’ share of royalties from their musical composition. Furthermore, Appellees never proffered any argument or theory as to why Appellants would attempt to deceive the Copyright Office, when they are, in fact, the undisputed authors. As indicated by the absence of any sort of motive for deception, the errors made in each of the registrations were done in good faith. As portions of the ownership interest were acquired by record companies, those companies— incorrectly, but in good faith—filed for a new registration to protect their newly acquired interests presumably under the assumption that no previous registration had been filed.

Accordingly, the case was remanded.  "The Appellants were erroneously 'hustled' out of court, and now deserve to be heard on the merits."

2nd Circuit Affirms Fractional Licensing for BMI; Tells DOJ To Move To Amend Consent Decree

U.S. v. BMI, No. 16-3830 (2d Cir. Dec. 19, 2017).

The Second Circuit affirmed the District Court's judgment interpreting the consent decree between the Department of Justice and Broadcast Music, Inc. (“BMI”), in which the court ruled that the consent decree neither requires full-work licensing nor prohibits fractional licensing of BMI’s affiliates' compositions.  The DOJ had concluded that the consent decrees require ASCAP and BMI to offer full-work licenses to the exclusion of fractional licenses, which led to the lower court's decision subject to the appeal.

The Second Circuit focused on the plain language of the consent decree.  "This appeal begins and ends with the language of the consent decree."

Florida High Court Says No Common Law Exclusive Right Of Public Performance In Pre-72 Recordings

Floe & Eddie, Inc. v. Sirius XM Radio, No. SC16-1161 (Fl. Oct. 26, 2017).

In the long-running dispute between Flo & Eddie (the Turtles) and Sirius, the Florida Supreme Court held that Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings.

The dispute in this case concerns rights in sound recordings of performances of musical works as distinct from rights in the composition of such works. The crucial question presented is whether Florida common law recognizes an exclusive right of public performance in pre-1972 sound recordings. We conclude that Florida law does not recognize any such right and that Flo & Eddie’s various state law claims fail.

Thus, Florida joined in New York, leaving it to the legislature rather than the Courts.

"Gimme Some Lovin'" Guitar Riff Claim Dismissed

Parker v. Winwood et al., No. 16-cv-684 (M.D. Tenn. 10/17/2017) [Doc. 99].

In a copyright infringement action concerning the guitar riff in the classic rock song Gimme Some Lovin' performed by the Spencer Davis Group, the Court granted the defendants' motion for summary judgment.  Plaintiff's song was governed by the 1909 Act, under which the general rule was that the publication of a work with proper notice was necessary to obtain statutory copyright protection.  The Court found that "Although Defendants proffer evidence that the work was distributed as a phonorecord prior to 1978, the Copyright Act specifically states that the distribution of phonorecords prior to 1978 is not considered a publication under copyright law. See 17 U.S.C. § 303. Even if the work-at-issue had been published, however, Plaintiffs would not be foreclosed from bringing an infringement suit so long as they made the requisite deposit. The right to sue is not destroyed for failure to make a prompt deposit after publication."  Accordingly, the motion to dismiss was denied.

Nonetheless, there were other basis to dismiss.  One defendant's motion to dismiss was granted for lack of personal jurisdiction -- he was not properly served, and had no minimum contacts with Tennessee.  As to the record label owner, after rejecting the argument that the plaintiff's lacked standing, the Court nonetheless found that the claim should be dismissed because the record label's sister company owned the rights to plaintiff's song!

Turning to the meat of the claim, the Court granted the defendant musicians summary judgment:

The Court finds no dispute of material fact still exists regarding whether Defendants had a “reasonable possibility” of access to Plaintiffs’ song before they created “Gimme Some Lovin’.” Specifically, the Court finds Plaintiffs have failed to meet their burden to show that there is a dispute regarding whether Defendants infringed Plaintiffs’ song between its release date on October 7, 1966 in the United Kingdom (ECF No. 64 ¶ 25) and the release date of “Gimme Some Lovin’” on October 28, 1966 (ECF No. 64 ¶ 25), or at any time before that date. Defendants presented evidence in the form of affidavits that the members of The Spenser Davis Group had not heard Plaintiffs’ song prior to creating "Gimme Some Lovin’.” (Mervyn Winwood Decl., ECF No. 57 ¶ 5; Stephen Winwood Dec., ECF No. 58 ¶ 4; Spenser Davis Decl., ECF No. 59 ¶¶ 3, 5.) The burden then shifted to Plaintiffs to set forth specific facts showing a triable issue of material fact. Plaintiffs only proffered inadmissible evidence to refute these facts Defendants set out in affidavit form. Plaintiffs also proffer no admissible evidence that Defendants infringed Plaintiffs’ song between its release and Defendants’ release, but rather contend it would have been possible. (ECF No. 64-6 at PageIDs 547-48.) Because Plaintiffs have failed to proffer any admissible evidence that establishes a genuine issue of material fact as to whether Defendants heard Plaintiffs’ song prior to creating or releasing “Gimme Some Lovin’,” the Court GRANTS summary judgment in favor of Defendants Steve Winwood and Kobalt (ECF No. 54)

"We Shall Overcome" Verse Not Subject To Copyright Protection

We Shall Overcome Foundation v. The Richmond Org., No. 16-cv-2725 (S.D.N.Y. Sep. 2017) (Cote, J.).

In a putative class action challenging the validity of the defendants' copyright in the folk-song "We Shall Overcome," the Court granted plaintiffs partial summary judgment finding that the lyrics and melody of the first verse (repeated as the 5th verse) of the song are not sufficiently original to qualify for copyright registration as a derivative work.  After going through the history of various publications and registrations of the song, the Court held that the defendants could not rely upon their copyright registration's presumption of validity because the defendants had submitted sufficient evidence to rebut the presumption: "They have shown that the Defendants’ 1960 and 1963 applications for a copyright in the Song were significantly flawed."

The next questions was whether the changes to the most well-known verse of the Song, Verse 1/5, embody the originality required for protection by the Copyright Act.  A version of the song was in the public domain, so the issue was whether the changes claimed by the defendants were sufficient to qualify as a a protectable derivative work.  The Court held that "the Plaintiffs have shown that the melody and lyrics of Verse 1/5 of the Song are not sufficiently original to qualify as a derivative work entitled to a copyright.  As a matter of law, the alterations from the PSI Version are too trivial. A person listening to Verse 1/5 of the Song would be hearing the same old song reflected in the published PSI Version with only minor, trivial changes of the kind that any skilled musician would feel free to make. ... More specifically, the changes of “will” to “shall” and “down” to “deep” and the melodic differences in the opening measures and the seventh measure, do not create a distinguishable variation. These differences represent “variations of the piece that are standard fare in the music trade by any competent musician.”  In other words, changing "will" to "shall" was not sufficiently original to warrant copyright protection.

The Court did, however, deny the motion for summary judgment on the issues of the authorship and divestment (by publication), and fraud on the copyright office; and partially granted a Daubert motion precluding expert testimony.

Infringement Claim Dismissed In Country Music Spat Because No "Access"

Arnett v. Jackson, No. 5:16-cv-00872-D (E.D.N.C. Aug. 14, 2017) [Doc. 28].

A songwriter who claimed that his song "Remember Me" was infringed by country music star Alan Jackson's song "Remember When" had his copyright infringement claim dismissed under Fed. R. Civ. P. 12(b)(6) for failure to plausibly allege the defendant's access to the plaintiff's song.  The Plaintiff argued that Jackson had access to Remember Me because it was widely disseminated and sent to third-party intermediaries who knew Jackson.  But, the Court found that the fact that the plaintiff's song was available on the internet and that plaintiff had sold the song (without an allegation of commercial success) did not create an inference of access.  Further, the connections between the alleged third-party intermediaries was not close enough, and the plaintiff did not sufficiently allege how the songs were sufficiently similar in order to assume access.

Six-year Digital Music Antitrust Litigation Refused Class Action Certification

In re Digital Music Antitrust Litig., 2017 US Dist LEXIS 111403 [SDNY July 18, 2017, No. 06-md-1780 (LAP)].

Judge Preska refused to certify as a class action a case alleging price fixing in the digital music industry.  Several individual plaintiffs sought to represent a nationwide class of Digital Music purchasers against defendants Sony BMG Music Entertainment, UMG Recordings, Inc., Warner Music Group Capitol Records, Inc., Capitol-EMI Music, Inc., EMI Group North America, Inc., and Virgin Records America, Inc. The Court found that the Plaintiffs failed to satisfy the typicality requirement and that widespread pirating would raise “unclean hand” defenses that could not be determined on a class-wide basis.

The decision arises out of an ongoing litigation where defendants allegedly control eighty percent of the market for Digital Music in the United States through production, licensing, and distribution of music online and on CDs. The plaintiffs allege that defendants have conspired to restrain trade in and fix prices of Digital Music in order to sell CDs at supra-competitive prices.