Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 1 of 31 Page ID #:1
`Case 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 1 of 31 Page ID #:1
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`2
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`1 Allen H man California State Bar No. 73371)
`LAW 0 FIC S OF ALLEN HYMAN
`10737 Riverside Drive
`North Holl " 00d, CA 91602
`Phone: (81
`763-6289
`Fax: (818)
`63—4676
`E-mall: lawoffah@aol.com
`
`Matthew F. Schwartz * Pro Hac Vice A licaiion to be Filed
`SCHWARTZ, PONTERIO & LEVENS
`, PLLC
`.
`134 West 2ch Street, Suite 1006
`New York, New York 10001
`Phone: (212 714-1200
`Fax: (212) 14-1264
`E-mall: mschwartz@splaw.us
`
`Oren S. Giskan * Pro Hac Vice figlication to be Filed
`GISKAN SOLOTAROFF & AN RSON LLP
`90 Broad Street, 10th Floor
`New York, New York 10004
`Phone:t(212 847-8315
`Fax: (6 6)_ 20-3237
`E—mall: ogiskan@gslawny.com
`
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`FOUR JAYS MUSIC COMPANY,
`
`Case No.
`
`Plaintiff,
`
`V.
`
`APPLE INC., THE ORCHARD ENTERPRISES, INC,
`ORCHARD ENTERPRISES, NY, INC, and
`CLEOPATRA RECORDS, INC.,
`
`
`COMPLAINT
`FOR COPYRIGHT
`INFRINGEMENT
`AND DEMAND FOR
`JURY TRIAL
`
`Basis for Jurisdiction
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`1.
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`The Court has jurisdiction over the subject matter of this action pursuant
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`to 28 U.S.C. § 1338(a) because this is an action for copyright infringement arising
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`under the Copyright Act of 1976, 17 U.S.C. §§ 101, 106, 115, 501, 602 et seq.
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`1
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`

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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 2 of 31 Page ID #:2
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 2 of 31 Page ID #:2
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`Introduction
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`2.
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`Plaintiff is the legal and/or beneficial copyright owners of musical works
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`authored by Harry Warren one of the premier composers of American music.
`3.
`Harry Warren wrote over 800 songs, including At Last, Chattanooga
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`Choo Choo, I Only Have Eyesfor You, You Must Have Been a Beautiful Baby, Jeepers
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`Creepers, The Gold DiggerS’Sortg (We ’re in. the Money), Lullaby ofBroadway, You 71
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`Never Know, 0n the Atcht'son, Topeka and the Santa Fe, That’s Amore, Nagasaki;
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`There Will Never Be Another You, and The More I See You.
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`4.
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`A list of Plaintiffs copyrighted compositions at issue in this case ih
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`annexed as Exhibit A (the “Subject Compositions”).
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`5.
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`The works of Warren have been recorded by the most prominent jazz
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`and popular artists of all time, including Art Tatum, Benny Goodman, Billie Holliday,
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`Cab Galloway, Charlie Parker, Coleman Hawkins, Count Basie, Dean Martin, Dizzy
`Gillespie, Duke Ellington, Ella Fitzgerald, Etta James, Frank Sinatra, Fred Astaire,
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`John Coltrane, Judy Garland, Lena Horne, Louis Armstrong, Miles Davis, Ray
`Charles, and Sarah Vaughan to name only a few. These monumental works of art are,
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`quite literally, national treasures.
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`6.
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`These and other recordings of Plaintiff‘s copyrighted musical works
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`have been pirated by the Defendants in this case. Defendants are all players in the
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`digital music business that participate in, and jointly profit from, making digital
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`phonorecord deliveries (l.€.,
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`downloads) of pirated recordings of the Subject
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`Compositions.
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`7.
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`Digital phonorecord deliveries of musical
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`recordings constitute a
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`reproduction and distribution of the musical work embodied in the digital recording
`and require a negotiated license from the copyright owner ofthe musical composition,
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`sometimes referred to as a “mechanical license.”
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`8.
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`Defendants have failed to obtain any license that would authorize them
`
`
`
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`to reproduce, distribute, or sell the recordings of the Subject Compositions identified
`
`
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`2
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 3 of 31 Page ID #:3
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`on Exhibit B and, as a result, Defendants have infringed Plaintiff’s exclusive rights of
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`reproduction and distribution of the Subject Compositions, under 17 U.S.C. §§ 106(1)
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`and 106(3).
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`9.
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`Further, the activity of making digital phonorecord deliveries of pirated
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`recordings of the Subject Compositions does not qualify for a compulsory license
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`under Section 115 of the Copyright Act.
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`10. A list of the pirated recordings of the Subject Compositions that
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`Defendants have reproduced and distributed without authorization,
`including by
`making digital phonorecord deliveries, and various methods of reproduction and
`distribution, thus far identified, is set forth in the Infringement Chart annexed as
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`Exhibit B.
`11.
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`.
`Plaintiff has thus far identified 98 pirated recordings of the Subject
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`Compositions that have been separately reproduced and distributed as digital
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`phonorecord deliveries by Defendants as set forth in the Infringement Chart annexed
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`as Exhibit B. Defendants have infringed these works in a concerted and distinct
`distribution chain.
`'
`
`12.
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`To put this case in context, in 2007, Jamie Thomas-Rasset, a single
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`mother of four in Brainerd, Minnesota, was found liable, after three separate jury
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`trials, for copyright infringement for using file sharing software that enabled the
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`unauthorized downloading and distribution of 24 recordings by the Goo Goo Dolls
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`and Def Leppard, among others. The juries awarded statutory damages in all three
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`trials of up to $80,000 per infringement. The Eighth Circuit Court of Appeals
`ultimately affirmed statutory damages in the amount of $9,250 for each infringed
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`recording, for a total award of $222,000. Ms. Thomas-Rassett declared bankruptcy as
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`she had “no other option.”
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`I
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`‘
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`13.
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`In 2009, Joel Tenenbaum, a Massachusetts college student, who also
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`used file-sharing software that permitted others to download 30 recordings by Limp
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`Bizkit and Blink-182, was found liable and the jury awarded statutory damages of '
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`3
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`

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`i
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`1 $22,500 per recording, for a judgment that totaled $675,000 forcing Mr. Tenenbaum
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`to file for Chapter 7 bankruptcy.
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`14. Unlike Ms. Thomas-Rassett and Mr. Tenenbaum who were not alleged
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`to have sold their infringing recordings or profited from their conduct, Defendants in
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`this case have engaged in massive music piracy operation for the purpose of
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`generating profits from their sales of pirated recordings and by other means.
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`15.
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`The copyright infringement operation detailed in this Complaint is only
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`the latest in a long line of piracy schemes that have plagued composers, publishers,
`
`and record labels since the inception of the music industry over 100 years ago, when
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`the perforated rolls used by player pianos to perform musical works were pirated. See
`
`.
`Aeolian Co. v. Royal Music Co., 196 F. 926 (W.D.N.Y. 1912).
`16. As the technology employed by the music industry to reproduce musical
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`works advanced, bootlegging efforts by music pirates kept pace. In the 19608 and
`19705, organized criminal enterprises engaged in record and tape piracy operations
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`on a scale that is dwarfed by the infringing conduct explained herein. Like the
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`Defendants in this case,
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`the “tape pirates” and “record pirates” of years past
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`unlawfully duplicated popular pre-existing recordings, and then claimed their liability
`was limited by the compulsory license provision of the 1909 Copyright Act, Section
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`1(e).
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`17.
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`The landmark case Duchess Music Corp. 12. Stem, 458 F.2d 1305 (9th Cir.
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`1972) settled the issue as to whether tape pirates could limit their liability for piracy
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`under the compulsory license provision of the 1909 Copyright Act. In Duchess, the
`defendant tape pirate engaged in the same conduct identified in this Complaint, and
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`claimed her conduct was lawful because the compulsory license provision of the
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`Copyright Act authorized the reproduction and distribution of the musical works
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`embodied on the recordings she pirated. The Ninth Circuit rejected the argument,
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`stating, “She may not continue her piracy under the flag of compulsory licensing?
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`The Duchess court concluded that the tape pirates’ activity was ineligible for a
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`4
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 5 of 31 Page ID #:5
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 5 of 31 Page ID #:5
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`compulsory license and that reproduction of a musical composition on a pirated
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`recording infringed the copyright in the composition, even when a compulsory license
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`was claimed.1
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`18.
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`The holding in Duchess was codified when the Copyright Act was
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`revised in 1976. The statutory bar against compulsory licensing of pirated recordings
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`continues in the recent amendments to Section 115 of the Copyright Act, which
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`provides that reproduction and distribution of pirated sound recordings is an activity
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`that is ineligible for a compulsory license.
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`19. Defendants are nothing more than modern tape pirates flying the flag of
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`compulsory licensing. Their conduct constitutes willful cepyright infringement of the
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`Subject Compositions in violation of the United States Copyright Act [17 U.S.C. §§
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`101, 106, 115, 501, 602 et seq.] (the “Copyright Act”).
`
`The Parties
`
`Four Jays Music Company
`i
`Plaintiff Four Jays Music Company is a California corporation with" a
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`20.
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`principal place of business at 421 E. 6th St. in Los Angeles, California.
`
`‘
`Apple
`21. Upon information and belief, Defendant Apple, Inc (“Apple”) is 21
`
`corporation organized under the laws of the State of California with a place of
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`business at 1 Apple Park Way in Cupertino, California.
`22. Apple owns and operates the US.
`iTunes Store (“iTunes”), a digital
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`music store that sells permanent downloads. iTunes opened in April 2003 and has
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`1 The criminal conduct of “tape pirates” became a priority of the Attorney General of the i
`United States, Edward H. Levi, in 1975 when the Justice Department determined that decisions
`reached by four Circuit Courts of Appeals, including the Ninth Circuit in Duchess, rendered tape
`pirates criminally liable even where the statutory royalty was tendered. See Heilman v. Levi, 391
`F.Supp. 1106 (E.D.Wisc. 1975). Criminal copyright infringement sentences continue to this day.
`See Matter OfZamgoza- Vaguero, 26 1&N Dec. 814 (BIA 2016)(defendant sentenced to 33 months
`in prison and ordered to be removed from the United States for selling bootleg copies of music
`CDs at a Florida flea market, as a crime involving moral turpitude).
`
`5
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 6 of 31 Page ID #:6
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`been the largest music vendor in the United States since April 2008 and the largest
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`music vendor in the world since February 2010. As of January 2017, the iTunes Store
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`offered between 35-40 million recordings for download.
`23. Apple specifically selected and contracted with Orchard to provide its
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`digital music catalog to be sold in its iTunes store on negotiated financial terms.
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`24. Apple reproduced and distributed pirated recordings of the Subject
`Compositions it received from Cleopatra and/or Orchard as permanent downlaods
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`among other types of digital phonorecord deliveries.
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`Orchard
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`25. Upon information and belief, Defendant The Orchard Enterprises, Inc. is
`a corporation organized under the laws of the State of Delaware with offices in New
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`York and Los Angeles.
`26. Upon information and belief, Defendant Orchard Enterprises, NY, Inc.
`is a corporation organized under the laws of the State of New York with Ioffices in
`New York and Los Angeles. Defendants The Orchard Enterprises, Inc. and Orchard
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`Enterprises, NY, Inc. are united in interest and shall be referred to, individually and
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`collectively, as “Orchard”.
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`27. Orchard engages in the distribution of digital music to the iTunes store,
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`and upon infromation and belief, Orchard is iTunes largest distributor and has
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`delivered several million recordings to iTunes for sale throughout the U.S..
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`28. Orchard specifically selected and contracted with Cleopatra to provide
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`its digital music catalog to be sold in Apple’s iTunes store on negotiated financial
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`terms.
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`'
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`29. Orchard unlawfully reproduced and distributed the pirated recordings of
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`the Subject Compositions and distributed them to Apple, at the directon of Cleopatra,
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`and unlawfully authorized Apple’s making of digital phonorecord deliveries in the
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`iTunes store, at Cleopatra’s direction, as specifically set forth in Exhibit B.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 7 of 31 Page ID #:7
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`Cleopatra
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`goats)
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`30. Upon information and belief, Defendant Cleopatra Records,
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`Inc.
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`(“Cleopatra”) is a business entity organized under the laws of the State of California
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`with a place of business at 11041 Santa Monica Blvd, Los Angeles, CA.
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`31.
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`Cleopatra operates under many pirate label imprint names including
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`Goldenlane Records, Magic Gold Records, Master Classics, Screenland Records,
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`Soundtrack Classics, Stardust, Stereo Magic Records, and Vintage Masters Inc.
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`I
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`32.
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`Cleopatra has made pirated copies of recordings embodying the Subject
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`Compositions, distributed them to Orchard and/or Apple, unlawfully authorized
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`Orchard’s distribution and delivery of the pirated recordings to Apple for sale in its
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`iTunes store, and unlawfully authorized Orchard and Apple’s making of digital
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`phonorecord deliveries in Apple’s iTunes store as specifically set forth in the annexed
`Exhibit B.
`i
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`33. Upon information and belief, Cleopatra has been one of the Apple’s
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`single largest record label source of digital recordings for its U.S. iTunes store, at
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`times having been the record label responsible for as much as 1% of the entire iTunes
`catalog, with hundreds of thousands of recordings, outpacing even the major record
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`labels.
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`34. Upon information and belief, Cleopatra is simply duplicating recordings
`of the Subject Compositions made by others without permission and authorizing
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`Orchard and Apple to sell reproductions of the pirated copies for profit in iTunes.
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`Jurisdiction, Venue and Joinder
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`35.
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`This Court has personal jurisdiction over Defendants because they are
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`incorporated in California and/or have a principal place of business in this Judicial
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`District and/or purposefully availed or directed their
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`infringing activities
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`in
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`California. Cleopatra is a California corporation and has its principal place of business
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`in this district. Apple is incorporated in California and has its principal offices in the
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`state. The Orchard has offices in Los Angeles, California.
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`7
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 8 of 31 Page ID #:8
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`36.
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`Further, Plaintiff’s copyright infringement claims arise out of (a) the
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`reproduction and distribution ofpirated recordings of the Subject Compositions listed
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`in Exhibit B, occurring in California, by Defendants and their purposeful direction,
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`including the sale of pirated recordings of Subject Compositions to California
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`residents;
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`or
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`(b)
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`transactions
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`consummated within California
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`concerning
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`reproduction, distribution and delivery of the pirated recordings of the Subject
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`Compositions.
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`37.
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`Cleopatra pirated the recordings of the Subject Compositions in this
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`#LHN
`umu:
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`9 judicial district and directed its distributor, Orchard,
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`to distribute the pirated
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`recordings to Apple for sale in its iTunes store.
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`38. Orchard intentionally distributed and delivered the pirated recordings
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`identified in Exhibit B to Apple and expressly aimed its infringing conduct at this
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`jurisdiction by specifically selecting and consummating transactions with Cleopatra
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`and Apple to reproduce and distribute pirated recordings of Subject Compositions.
`Orchard intentionally authorized Apple to reproduce the pirated recordings of the
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`Subject Compositions in its iTunes store and to sell permanent downloads to
`California consumers. Orchard and Cleopatra receive royalties and royalty statements
`for all of Apple’s sales of permanent downloads of the pirated recordings of the
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`Subject Compositions in the iTunes store.
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`39. Apple reproduced the pirated recordings of the Subject Compositions
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`and made available, distributed, and sold the pirated these pirated recordings to
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`Californians in its iTunes store.
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`40. Venue is proper in this District pursuant to 28 U.S.C §§ 1391 (b), 1391(cT)
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`and 1400(a)‘ because Plaintiff and Cleopatra are both located in this Judicial District.
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`In addition, Defendants are subject to personal jurisdiction in this Judicial District and
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`have committed unlawful acts of infringement in this Judicial District. In addition,
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`Defendants all have places of business in this Judicial District.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`l
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`41.
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`Joinder of Cleopatra, Orchard and Apple is proper under Fed. R. Civ. P.
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`2 20 because Defendants are jointly and severally liable as members of a'distinct
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`distribution chain for the acts of copyright infringement identified herein.
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`Harry Warren
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`42. Harry Warren (1893-1981) has perhaps contributed more to the great
`American songbook than any other songwriter in history. Warren was born to Italian
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`immigrant parents in Brooklyn, New York. After serving in the US Navy in World
`War I, Warren began writing songs.
`f
`I
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`43.
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`In the years 1931 to 1945, Warren wrote more hit songs than Irving
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`Berlin. He was nominated for the Academy Award for Best Song eleven times (more
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`than Berlin, George Gershwin, Cole Porter or Richard Rodgers) and won three Oscars
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`for composing Lullaby ofBroadway, You 71 Never Know, and On the Atehison, Topeka
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`and the Santa Fe.
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`44. Warren wrote the music for the 1933 film musical, 42nd Street,
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`choreographed by Busby Berkeley, with whom he would collaborate on many musical
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`films. In 1980, producer David Merrick and director Gower Champion adapted the
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`film into a Broadway musical that won the Tony Award for Best Musical in 1981 and
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`ran for over 3,400 performances.
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`45. Warren wrote over 800 songs including Chattanooga Choo Choo, the
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`first song to receive a gold record, presented by RCA Victor in 1942, for sales of 1.2
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`million copies. Over the course of his career, Warren wrote 81 top 10 hits, including
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 10 of 31 Page ID #:10
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 10 of 31 Page ID #:10
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`1
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`timeless classics such as At Last, I Only Have Eyes For You, That ’s Amore, You Must
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`2 Have Been A Beautiful Baby, Jeepers Creepers, and The Gold Diggers ’ Song (We ’re
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`in the Money). Warren was one of America's most prolific film composers, and his
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`songs have been featured in over 300 films. Harry Warren was inducted into the
`Songwriters Hall of Fame in 1971.
`1
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`Four Jays Music Company
`
`46.
`In 1955 Harry Warren formed the Four Jays Music Company, a
`California corporation, to own the copyrights in his musical works.
`I
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`47.
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`Four Jays Music Company acquired the copyrights in the respective
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`Subject Compositions by assignment from Harry Warren and third party music
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`publishers, as well as by assignment by Harry Warren’s wife, daughter, and
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`grandchildren, who acquired the copyrights by termination notices timely served and
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`filed with US. Copyright Office under Section 304 of the Copyright Act of 1976.
`48.
`Plaintiff Four Jays Music Company is the legal owner of the US.
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`copyright in certain of the Subject Compositions as identified in Exhibit A, along with
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`all accrued causes of action.
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`E
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`The Subject Compositions
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`49.
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`Plaintiff is the owner of the musical compositions listed in the
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`Composition Chart annexed as Exhibit A (collectively, the “Subject Compositions”)
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`that are the subject of this action.
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`50.
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`The copyrights for all the Subject Compositions have been registered and
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`renewed with the US. Copyright Office, and each Subject Composition is the subject
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`of a valid US. copyright. The Composition Chart annexed as Exhibit A identifies the
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`copyright registration numbers for each of the Subject Compositions.
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`51.
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`Plaintiff is the owner of a share in each of the Subject Compositions in
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`the percentages listed on Exhibit A.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 11 of 31 Page ID #:11
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`52.
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`As discussed more fully below, the Defendants have infringed, and are
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`continuing to infringe, the copyright in each of the Subject Compositions by willfully
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`reproducing and distributing them without a license.
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`f
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`Background
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`5 3.
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`Before digital music distribution,
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`recorded music was physically
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`distributed through brick-and-mortar stores that were confined by the limitations of
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`shelf space. Recording artists signed exclusive recording contracts with record labels
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`in order to have their records pressed and distributed in national record stores.
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`54.
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`It is hard to imagine that a person walking into Tower Records, off the
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`street, with arms full of CDs and vinyl records and claiming to be the record label for
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`Frank Sinatra, Louis Armstrong and Ella Fitzgerald, could succeed in having that
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`store sell their copies directly next to the same albums released by legendary record
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`labels, Capitol, RCA and Columbia, and at a lower price.
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`55.
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`Yet, this exact practice occurs every day in the digital music business,
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`where there is unlimited digital shelf space (for example, there are more than 40
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`million recordings in the iTunes store) and a complete willingness by the digital music
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`stores to seek popular and iconic recordings from any source, legitimate or not,
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`provided they participate in sharing the proceeds.
`56.
`The iconic status of the pirated recordings of the Subject Compositions
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`at issue in this case cannot be overstated. Any list of the most popular singers and
`musicians of any period between 1930 and 1970 would be replete with the artists who
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`have recorded Plaintiff‘s musical works, some of them multiple times.
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`.
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`57. All the recordings on the Infringement Chart (EXh. B) embodying the
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`Subject Compositions are pirated copies, or “bootlegs.” Defendants’ digital
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`phonorecord deliveries of these pirated copies were all made without authorization
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`from the copyright owners of the sound recordings or those who originally “fixed”
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`them as required by Section 115 (discussed below), and the copyright owners of the
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`Subject Compositions.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 12 of 31 Page ID #:12
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` se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 12 of 31 Page ID #:12
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`58. Defendants all generate illicit revenue for themselves when these and
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`other pirated copies are sold or distributed. Plaintiff has not authorized any
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`reproduction or distribution of these pirate recordings of the Subject Compositions
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`(or any identified on Exhibit B) and it is an infringement for which all the Defendants
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`are jointly and severally liable.
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`The Pirated Recordings
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`5 9.
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`The same deceit and manipulation are at work in all of the infringements
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`identified in Exhibit B. Defendants have taken recordings of the Subject
`Compositions — in which they hold no rights H and reproduced and distributed pirated
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`copies of them to the public, for profit, without authorization.
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`i
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`60. Virtually all of the recordings at issue in this case were originally made
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`between 1930 and 1972. Because of the consolidation in the music industry, many of
`the record labels that originally released these recordings have been acquired or
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`otherwise consolidated by the three remaining major labels, Sony, Universal, and
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`Warner, and their catalogs were absorbed into the major labels’ “back catalog.” This
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`consolidation occurred well before the first digital music stores started operating in
`the early 20003.
`i
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`61.
`Since Cleopatra did not exist prior to 1992, and it did not originally “fix”
`any of the relevant recordings, the only way for it to acquire the rights to duplicate
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`and distribute them would be to purchase or license rights in these recordings.
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`62. Upon information and belief, Cleopatra never acquired permission or the
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`rights to reproduce or distribute any of these back catalog recordings from the major
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`labels.
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`63. Upon information and belief, all of the Defendants are simply
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`duplicating pirated records of the Subject Compositions made by others without
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`permission, and selling the pirated copies for profit.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`12
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 13 of 31 Page ID #:13
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 13 of 31 Page ID #:13
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`Defendants Have Infringed the Subject Compositions
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`64.
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`Section 115 of the Copyright Act expressly excludes Defendants”
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`activity of making the digital phonorecord deliveries identified herein of pirated
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`recordings of the Subject Compositions from eligibility for a compulsory license and
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`Defendants have failed to obtain any licenses for the Subject Compositions that
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`authorize such activity.
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`65. Upon information and belief, some Defendants may have attempted to
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`obtain licenses to make digital phonorecord deliveries of the pirated recordings of the
`Subject Compositions identified on the Infringement Chart from the Harry FOR
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`Agency (“Harry Fox” or “HFA”).
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`‘
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`D
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`66. Harry Fox licenses, however, adopt the terms of Section 115 and are
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`therefore not available for pirated recordings.
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`67.
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`In addition, upon information and belief, some Defendants may have
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`engaged third party services such as Music Reports, Inc., and RightsFlow to obtain
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`compulsory licenses for digital phonorecord deliveries the Online Defendants make,
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`however, the activity of making digital phonorecord deliveries of pirated recordings
`of the Subject Compositions is not eligible for a compulsory license so any such
`
`attempt is ineffective.
`
`Unauthorized Methods of Digital Phonorecord Deliveries
`
`The Infringement Chart annexed as Exhibit B sets forth (1) each pirated
`68.
`recording of the Subject Compositions Within the Cleopatra, Orchard, Apple
`
`these Defendants have
`thus far identified by Plaintiff that
`distribution chain,
`reproduced, distributed, and/or made available for digital phonorecord deliveries in
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`Apple’s iTunes store Without authorization and (2) the specific types of reproductions,
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`distributions, and/or digital phonorecord deliveries made (“Method”).
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`LII-FAWN
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 14 of 31 Page ID #:14
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`
`
`69.
`The various types of unauthorized reproductions, distributions, and/or
`digital phonorecord delivery configurations of pirated recordings of the Subject
`Compositions made and/or authorized by Defendants (the “Methods” in Exhibit B)
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`are discussed briefly below.
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`Permanent Downloads
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`70.
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`Permanent download means a digital transmission of a sound recording
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`of a musical work in the form of a download, where such sound recording is accessible
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`for listening without restriction as to the amount of time or number of times it may be
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`accessed.
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`71. Apple has made available, reproduced, and distributed permanent
`downloads of the pirated recordings of the Subject Compositions to their customers
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`(“PD” on the Infringement Chart) and was unlawfully authorized and directed to do
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`so by Cleopatra and/or Orchard.
`
`72.
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`Permanent downloads of pirated recordings of the Subject Compositions
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`require licenses from the copyright owners of the Subject Compositions and all of the
`Defendants failed to obtain such licenses for each entry on the Infringement Chart at
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`Exhibit B.
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`73.
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`The reproduction and distribution of permanent downloads of pirated
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`recordings of the Subject Compositions by Defendants, and their authorization of this
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`activity, infringes Plaintiffs exclusive reproduction and distribution rights under 17
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`U.S.C. § 106(1) and (3).
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`Promotional Clips
`74. Apple’s iTunes store has a feature that allow users to interactively stream
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`a sample, promotional clip, of the recordings that are available for sale as permanent
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`downloads.
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`‘
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`These promotional clips (“‘PC” on the Infringement Charts) are 30—90
`75.
`seconds long and their purpose is to encourage the purchase ofthe tracks as permanent
`downloads.
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`14
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 15 of 31 Page ID #:15
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 15 of 31 Page ID #:15
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`\JONU’I-IkUJN
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`76.
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`These promotional
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`clips of pirated recordings of
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`the Subject
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`Compositions are interactive streams that require a license from the copyright owners
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`of the Subject Compositions and Defendants all failed to obtain such licenses for each
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`entry on the Infringement Chart annexed as Exhibit B.
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`77. Defendants’ respective reproduction and distribution of promotional
`clips ofpirated recordings ofthe Subject Compositions, and their authorization ofthis
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`activity, infringes Plaintiff’s exclusive reproduction and distribution rights under 17
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`U.S.C. § 106(1) and (3).
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`Server Copies
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`78. Apple reproduced the pirated recordings of the Subject Compositions on
`
`its servers for its iTunes store as server copies (“SC” on the Infringement Chart) and
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`was unlawfully authorized to engage in this activity by Cleopatra and/or Orchard.
`‘
`79.
`These server copies of pirated recordings of the Subject Compositions
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`are reproductions that require a license from the copyright owners of the Subject
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`Compositions and the Defendants failed to obtain such licenses for each, entry on the
`Infringement Chart.
`A
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`80. Apple’s reproduction of server copies of pirated recordings of the
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`Subject Compositions, and authorization of this activity by Cleopatra and Orchard, as
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`well the distribution ofthe server copies ofpirated recordings of Subject Composition
`to Apple, infringes Plaintiff‘s exclusive reproduction and distribution rights under 17
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`U.S.C. § 106(1) and (3).
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`Making Available
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`i
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`81. Defendants have made and continue to make available, or authorize
`
`making available, permanent downloads of the pirated recordings of the Subject
`
`Compositions to the public by uploading and/or offering pirated recordings of the
`
`Subject Compositions for permanent downloads in iTunes.
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`82.
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`The Defendants’ making available (“MA” on the Infringement Chart)
`
`pirated recordings of the Subject Compositions for permanent downloads, and
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
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`15
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`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 16 of 31 Page ID #:16
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 16 of 31 Page ID #:16
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`hut-1N
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`unlawful authorization of this activity requires a license from the copyright owners of
`
`the Subject Compositions and all Defendants failed to obtain such licenses for each
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`entry on the Infringement Chart. Defendants have thereby infringed Plaintiff’s
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`exclusive distribution rights under 17 U.S.C. § 106 as a “deemed distribution.” Ad’cM
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`Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001); Perfect 10, Inc.
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`'1}.
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`Amazon.com, Inc... 487 F.3d 701 718——19 (9th