Google and Amazon Accused of Marketing Musical Knock-Offs
The suits allege that the tech giants have turned a blind eye to widespread pirating by obscure music companies. A digital music expert not involved in the case says the suits strike him as an attempt to game ambiguities in the new Music Modernization Act for windfall statutory damages.
January 24, 2020 at 05:12 PM
4 minute read
Google, Amazon and a couple of obscure music distribution companies were targeted Thursday with copyright suits accusing them of "flagrant" pirating of music ranging from Judy Garland to Miles Davis.
The music publishing companies that own the rights to compositions by Ray Henderson and Harry Warren are suing Limitless International Recordings, Valleyarm Digital Ltd. and others. They're accused of reproducing the songs without authorization and selling downloads of them on Google Play and Amazon.com at half the going rate—often alongside legitimately licensed versions. The alleged infringers even go so far as to reproduce much of the original cover art with a gray border that conveniently blocks out the true music label's name, the suits allege.
"The scope and scale of Defendants' piracy operation cannot be understated," the complaints state. "Defendants have, on occasion, flagrantly bootlegged entire artist or label catalogs."
The complaints were filed in the Northern and Central Districts of California. Allen Hyman of the Law Offices of Allen Hyman in North Hollywood; Philip Mann of the Mann Law Group in Seattle; Oren Giskan of Giskan Solotaroff & Anderson of New York; and Brian Levenson of Schwartz, Ponterio & Levenson in New York represent plaintiffs Ray Henderson Music Co., Four Jays Music Co. and Julia Riva. Riva is the granddaughter of Warren, who wrote popular standards such as "I Only Have Eyes for You," "Chattanooga Choo Choo" and "That's Amore."
The plaintiffs accuse the tech giants of turning a blind eye to the piracy, even as commenters on their websites have questioned the authenticity of the downloads. "Valleyarm and Google chose to ignore the evidence of piracy and to participate in the infringement on a massive scale," one of the complaints states.
Orrick, Herrington & Sutcliffe partner Paul Fakler, who's not involved in the case but whose clients have ranged from the Bill Graham Archives to Sirius XM Satellite Radio, said the downloads should be considered in their context. He notes that digital music services like Google Play and Amazon license many millions of recordings, usually from thousands of different record companies, including aggregators. Those licenses typically include representations and warranties that the record companies have the right to grant the licenses.
"There is obviously no way for a service, which is getting tons of recordings ingested from the record companies on a daily or weekly basis, to do some kind of CSI Palo Alto forensic investigation into whether each recording might be an unauthorized copy," he says. "I am sure that none of these services have any interest in having unauthorized versions of major label recordings on their platforms. They already have the 'real McCoy,' so there is literally no possible benefit to them. But they are large companies with deep pockets."
Fakler senses an attempt to score a large statutory damages award that could dwarf the value of any license—the type of opportunistic lawsuit that the Music Modernization Act of 2018 has failed to rub out, he says.
Fakler notes that the labels that own the recordings do not appear to have joined in the litigation. "The only party even potentially harmed here is the record company," he says. "They are making billions now from the streaming services. So, if they became aware of pirate copies on the services, they would likely do something reasonable like let the services know so they could take them down."
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