Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Yesh Music, LLC v. Amazon.Com, Inc.

United States District Court, E.D. New York

June 16, 2017

YESH MUSIC, LLC and JOHN K. EMANUELE, individually and on behalf of all other similarly situated copyright holders, Plaintiffs,
v.
AMAZON.COM, INC. and AMAZON DIGITAL SERVICES INC., Defendants.

          MEMORANDUM DECISION & ORDER.

          Brian M. Cogan USD.J.

         By Memorandum Decision and Order dated April 8, 2017 (the “Order”), I granted in part, and denied in part, defendants Amazon.com, Inc. and Amazon Digital Service, Inc.'s (together “Amazon” or “defendant”) motion for partial summary, finding that Amazon has valid compulsory licenses to plaintiffs' songs, except that there is a genuine factual dispute as to whether the ambient versions of plaintiffs' songs are covered by those compulsory licenses. Presently before the Court is plaintiffs' motion for reconsideration of the Order pursuant to Federal Rule of Civil Procedure 60(b), or, in the alternative, for certification of the Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Familiarity with the facts and the Order is assumed.

         Plaintiffs' motion for reconsideration is entirely improper. Plaintiffs have submitted three declarations[1] and 15 attached exhibits containing new evidence, often without an explanation as to why this evidence could not have been discovered earlier, and they have used their motion as an opportunity to relitigate issues decided in the Order by asserting a multitude of new arguments never raised in the two prior rounds of briefing. To make matters worse, much of plaintiffs' memoranda in support of their motion is unclear to the point of being unintelligible.

         Plaintiffs have sufficiently confused, or perhaps attempted to deceive, defendants and this Court by: (1) using terms that have never been used in this case previously, without providing a definition or explanation as to what they are referring; (2) referring to blurry screen shots of websites that are impossible to read; (3) referring to exhibits that do not exist; (4) manipulating a quotation from the TuneCore agreement Terms and Conditions so that the version in plaintiffs' memorandum is materially misleading; and (5) claiming that Andrew Migdail previously “testified” that he used “Diamond Marketing Service” to effect service of the NOIs and “admitted” that Diamond Marketing Service is a marketing company that focuses on healthcare, when there is no mention of Diamond Marketing Service anywhere in Migdail's declaration. I cannot tell whether this is a result of a pattern and practice of sloppy work, or an intentional attempt to deceive the Court, but, regardless of the cause, plaintiffs' counsel is warned that any further instances of this conduct will expose it to sanctions for engaging in vexatious and frivolous litigation.

         The Court has spent an exorbitant amount of time attempting to decipher plaintiffs' arguments. Plaintiffs' motion is frivolous and it is denied for the following reasons. To the extent any of plaintiffs' arguments are not specifically addressed below, they are rejected as incoherent.

         DISCUSSION

         I. Motion for Reconsideration

         Plaintiffs' motion for reconsideration is governed by Federal Rule of Civil Procedure 60(b) and Local Rule 6.3. Under Local Rule 6.3, the party moving for reconsideration must file “a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court has overlooked.” A motion for reconsideration is not a proper tool for a party dissatisfied with the court's ruling to merely relitigate issues previously determined by the court or reargue the same points that were previously raised and rejected. See Zerman v. Jacobs, 751 F.2d 82, 85 (2d Cir. 1985); Sass v. MTA Bus Co., 6 F.Supp.3d 238, 244 (E.D.N.Y. 2014) (A reconsideration motion “is neither an occasion for repeating old arguments previously rejected nor an opportunity for making new arguments that could have previously been made.”) (internal quotation marks omitted); Range Rd. Music v. Music Sales Corp., 90 F.Supp.2d 390, 392 (S.D.N.Y. 2000) (“The . . . limitation on motions for reconsideration is to ensure finality and to prevent the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters.”). Indeed, a motion for reconsideration should be construed narrowly so as to not be “used as a substitute for appealing a final judgment.” Perez v. United States, 378 F.Supp.2d 150, 155 (E.D.N.Y. 2005) (internal quotation marks omitted).

         On a motion for reconsideration, “‘a party may not advance new facts, issues, or arguments not previously presented to the Court.'” Nat'l Union Fire Ins. Co. v. Stroh Cos, 265 F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St. Martin's Press, No. 97 Civ. 690, 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)). Therefore, the motion “will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 256-57 (2d Cir. 1995).

         A. The Climan Declaration

         In the Order, I found that Amazon had sufficiently established that none of plaintiffs' songs were impermissibly streamed on any of its four online music services because: (1) the Amazon MP3 Store and non-premium music locker do not require Amazon to secure mechanical licenses; and (2) the Climan declaration demonstrated that none of plaintiffs' songs were streamed on Amazon Cloud Player Premium or Amazon Prime Music prior to the service of an NOI. Plaintiffs propound numerous arguments as to why this finding was incorrect.

         First, plaintiffs argue that the Court overlooked plaintiff Yesh's “Purchased Content Locker Monthly Reports, ” or the “PCL streams, ” which, according to plaintiffs, demonstrate that the Climan declaration is inaccurate and there is a genuine factual dispute as to whether all streams of plaintiffs' songs prior to the service of an NOI were via the Amazon MP3 Store and non-premium music locker. I do not know what plaintiffs mean by “PCL.” Prior to their motion for reconsideration, plaintiffs never used the term “PCL streams” or “PCL.” In fact, plaintiffs previously submitted these same reports on the motion for summary judgment, but they never identified them as “PCL” streaming reports.

         In their reply memorandum, perhaps in acknowledgment of Amazon's point in its memorandum in opposition to the motion that it also does not know what plaintiffs mean by “PCL, ” plaintiffs no longer use that term and instead refer to the “PCL” streams as “non-premium locker” streams. I assume that by “non-premium locker, ” plaintiffs are referring to the “non-premium music locker, ” which is one of the four Amazon online music services that were discussed at length in the Order and the subject of the Climan declaration. I will thus construe all references to “PCL” to mean the “non-premium music locker.”

         As I explained in the Order, the Climan declaration established that all streams of plaintiffs' songs prior to the service of an NOI occurred via the non-premium music locker or the Amazon MP3 Store. Plaintiffs now seem to be arguing that the monthly streaming reports Yesh received for Amazon's use of its songs on the non-premium music locker demonstrate that the Climan declaration is false because they prove that eight of plaintiffs' songs were streamed significantly fewer times on the non-premium music locker than the Climan declaration represented. But the non-premium music locker streaming reports - the only evidence plaintiffs identify as supporting this argument - do not even mention any of the eight songs for which plaintiffs claim the Climan declaration inaccurately reported streams. Of course the number of streams identified on the monthly reports plaintiffs have submitted do not equal the number of streams identified in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.