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Arista Records LLC; Atlantic Recording Corporation; Arista Music, Fka v. Lime Group LLC; Lime Wire LLC; Mark Gorton; Greg Bildson; and M.J.G.

April 29, 2011

ARISTA RECORDS LLC; ATLANTIC RECORDING CORPORATION; ARISTA MUSIC, FKA BMG MUSIC; CAPITOL RECORDS, INC; ELEKTRA ENTERTAINMENT GROUP INC; INTERSCOPE RECORDS; LAFACE RECORDS LLC; MOTOWN RECORD COMPANY, L.P.; PRIORITY RECORDS LLC; SONY MUSIC ENTERTAINMENT, FKA SONY BMG MUSIC ENTERTAINMENT; UMG RECORDINGS,INC; VIRGIN RECORDS AMERICA, INC.; AND WARNER BROS. RECORDS INC.,
PLAINTIFFS,
v.
LIME GROUP LLC; LIME WIRE LLC; MARK GORTON; GREG BILDSON; AND M.J.G. LIME WIRE FAMILY LIMITED PARTNERSHIP, DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:

AMENDED OPINION AND ORDER

I. Introduction

On May 11, 2010, this Court granted summary judgment in favor of Plaintiffs on their claims against Defendants LimeWire LLC ("LW"), Lime Group LLC ("Lime Group"), and Mark Gorton (collectively, "Defendants") for secondary copyright infringement. The Court found that Defendants had induced multiple users of the LimeWire online file-sharing program ("LimeWire") to infringe Plaintiffs' copyrights. In the Court's Opinion and Order (as amended on May 25, 2010),*fn1 the Court detailed this case's procedural and factual background, familiarity with which is assumed. See Dkt. Entry No. 223; Arista Records LLC v. Lime Group LLC, 715 F Supp. 2d 481, 507 (S.D.N.Y. 2010). The litigation is now in the damage phase, with a trial on damages scheduled for May 2, 2011.

Plaintiffs have moved for partial summary judgment on (1) Plaintiffs' Ownership or Control of the Works at Issue, and (2) the Direct Infringement of the Works at Issue. Plaintiffs have identified 11,205 sound recordings that have allegedly been infringed through the LimeWire system.*fn2

For the reasons stated herein, Plaintiffs' Motion for Partial Summary Judgment Regarding Ownership is GRANTED in part and DENIED in part. Plaintiffs' Motion for Partial Summary Judgment Regarding Direct Infringement is GRANTED.

II. Summary Judgment Standard

A party may move for summary judgment as to a "part of each claim or defense." Fed.

R. Civ. P. 56(a). Summary judgment is appropriate only if the record before the court establishes that there is no "genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. The Court must construe the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re "Agent Orange" Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir.2008). A motion for summary judgment should be denied "if the evidence is such that a reasonable jury could return a verdict in favor" of the nonmoving party. NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168, 178-79 (2d Cir.2008); see also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001); Fed.R.Civ.P. 56(e). Summary judgment is warranted if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A party moving for summary judgment must support an assertion that "a fact cannot be or is genuinely disputed" by citing to evidence in the record, including "documents, . . . affidavits or declarations, . . . admissions, . . . . or other materials." Fed. R. Civ. P. 56(c). "A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1).

An opposing party "may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). See also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (non-moving party may not rely on "conclusory allegations or unsubstantiated speculation"). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and must set forth "significant probative evidence" on which a reasonable factfinder could decide in its favor. Anderson, 477 U.S. at 249.

III. Analysis: Motion for Sumary Judgment on Ownership

A. Sound Recordings Not in Dispute

"To prevail on a claim of copyright infringement, the plaintiff must demonstrate both (1) ownership of a valid copyright and (2) infringement of the copyright by the defendant." Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 109 (2d Cir. 2001) (citing Hamil America, Inc. v. GFI, 193 F.3d 92, 98 (2d Cir.1999)). Under the Copyright Act, a certificate of registration constitutes prima facie evidence of the valid ownership of a copyright. See Rogers v. Koons, 960 F.2d 301, 306 (2d Cir. 1992) (citing 17 U.S.C. § 401(c)). An assignee of a valid copyright who is not named on the registration as the owner has the additional burden of proving valid chain of title "because nothing in the registration certificate evidences his right to claim through the original copyright claimant." 3-12 Nimmer on Copyright, § 12.11[C] (2010). SeeInt'l Media Films, Inc. v. Lucas Entertainment, Inc., 703 F. Supp. 2d 456, 463 (S.D.N.Y. 2010); Kenbrooke Fabrics, Inc. v. Soho Fashions, Inc., No. 87 Civ. 5775, 1989 WL 117704, at *1 (S.D.N.Y. Oct. 2, 1989). Once a plaintiff has offered valid evidence establishing ownership (and/or chain of title), "the burden shifts to the defendant to establish the invalidity of plaintiff's title." 3-12 Nimmer on Copyright, § 12.11[C]. See also Yurman Design Inc. v. Chaindom Enterprises, Inc., No. 99 Civ. 9307, 2003 WL 22047846, *2 (S.D.N.Y. Aug. 29, 2003) (citing In Design v. Lauren Knitwear Corp., 782 F. Supp. 824, 829 n. 11 (S.D.N.Y. 1991)).

Plaintiffs have offered evidence seeking to establish ownership of the copyrights in each of the over 11,000 sound recordings, including the relevant copyright registration certificates, and, in most cases, documentation of any transfers of ownership to a named Plaintiff. (See SUF.)*fn3 Defendants have challenged Plaintiffs' ownership of 276 of the post-1972 sound recordings and 121 pre-1972 sound recordings. Defendants do not dispute Plaintiffs' ownership of the remaining 9,439 post-1972 songs and 1,369 pre-1972 sound recordings. (SeeDef. SUF Resp.) The Court thus GRANTS summary judgment to Plaintiffs as to their ownership of the sound recordings as to which ownership is not disputed.

B. Disputed Sound Recordings

Defendants challenge Plaintiffs' ownership of 276 post-1972 sound recordings and 121 pre-1972 recordings. These challenges break down into three categories:

1) For 55 post-1972 sound recordings, Defendants argue that Plaintiffs have improperly attempted to claim the exclusive rights of a non-plaintiff subsidiary of ...


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