May 4, 2004.
NOEL L. SILVERMAN, as executor of the Estate of Paul Desmond d/b/a DESMOND MUSIC COMPANY, Plaintiff, -against- RTV COMMUNICATIONS GROUP, INC., RTV SERVICE CORPORATION, and ROBERT W. SCHACHNER, Defendants; WB MUSIC CORP., WARNER/CHAPPELL MUSIC INC. d/b/a CHAPPELL & CO., WARNER BROS. INC., ALICE COLTRANE d/b/a JOWCOL MUSIC, and MUSIC SALES CORPORATION, Plaintiffs, -against- RTV COMMUNICATIONS GROUP, INC., RTV SERVICE CORPORATION, and ROBERT W. SCHACHNER, Defendants; WINDSWEPT PACIFIC ENTERTAINMENT CO. INC. d/b/a LONGITUDE MUSIC CO., Plaintiff, -against- RTV COMMUNICATIONS GROUP, INC., RTV SERVICE CORPORATION, and ROBERT W. SCHACHNER, Defendants; SHAPIRO, BERNSTEIN & CO. INC. and Morgan Guaranty Trust Company of New York, as Executor of the Will of Irving Berlin d/b/a IRVING BERLIN MUSIC COMPANY, Plaintiffs, -against- RTV COMMUNICATIONS GROUP, INC., RTV SERVICE CORPORATION, and ROBERT W. SCHACHNER, Defendants
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
The above captioned actions were referred to Magistrate Judge Eaton
for a contested damages inquest. The inquest was the result of default
judgments and injunctions. In three of the four cases, those docketed as
97 Civ. 0089, 97 Civ. 1013 and 97 Civ. 1014, default judgments were
entered against the corporate defendants, RTV Communications Group, Inc.
and RTV Services Corp., and the individual defendant, Robert W. Schachner
("Schachner"). In the fourth case, 96 Civ. 7872, only the corporate
defendants were defaulted. On February 17, 2004, Magistrate Judge Eaton
issued his Report and Recommendation to this Court. Plaintiffs,
collectively, and Schachner each timely filed objections pursuant to
28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil
Plaintiffs' primary objection is to Magistrate Judge Eaton's
determination that for the purposes of calculating statutory damages each
CD is a "work". Plaintiffs believe each song should be considered its own
work. In a digital age in which new recording technologies allow for
compilations of a heretofore unimaginable number of songs, there is a
great deal of merit to plaintiffs' argument. Nonetheless, the language of
17 U.S.C. § 504 (c)(1) demands the conclusion reached by Magistrate
The defendant's objections are less persuasive and equally
unsustainable. Therefore, having carefully considered both sets of
objections, the Court hereby elects to adopt Magistrate Judge Eaton's
Report and Recommendation unchanged and in its entirety. The Court orders
the cases docketed as 97 Civ. 0089, 97 Civ. 1013 and 97 Civ. 1014 closed
and directs the Clerk of the Court to remove them from the Court's active
docket. With respect to 96 Civ. 7872, plaintiffs are directed to inform
the Court in writing by no later than the close of business on June 15,
2004, whether they intend to continue the action against Schachner.
Unless the Court is informed by plaintiffs that they intend to pursue the
action against Schachner, the case will be closed on June 16, 2004.
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