Norman Blagman versus the whole digital music industry: Round 1 to Blagman.

I can’t write a better introductory sentence than Judge Andrew Carter of the United States District Court for the Southern District of New York did to open his May 20, 2013, order and opinion in Blagman v. Apple Inc., so here is His Honor’s:

On October 12, 2012, Plaintiff Norman Blagman filed an amended class action complaint against, for all intents and purposes, the whole of the digital music industry.

Indeed, the defendants Blagman has sued are Apple Inc.; Amazon.com, Inc.; Google Inc.; Microsoft Corporation; EMusic.com Inc. (collectively the “Retailer Defendants”); and Orchard Enterprises, Inc. and Orchard Enterprises NY, Inc., two entities that aggregate musical recordings from record labels and other content providers to then sell to the Retailer Defendants for retail sale on their respective websites.

Matthew David Brozik

Doesn’t steal music.

The defendants—all of them—moved to dismiss the class action complaint on the grounds that it failed to state a claim of copyright infringement. The defendants argued that Blagman’s complaint did not satisfy the standard “requiring a plausible claim to relief because (1) he does not make specific allegations of copyright infringement; (2) his generalized assertions of industry-wide infringement fail to state a claim of copyright infringement; and (3) [he] makes no allegations of willful infringement.” Moreover, the entire digital music industry asserted, the allegations on behalf of the putative class do not state a claim of copyright infringement or establish standing for putative class members.  And, further, the defendants moved in the alternative to strike the class allegations from the complaint for failure to meet the class certification requirements.

Slow down, defendants! ruled Judge Carter. Also, you’re wrong. On all counts. Motions denied.

Blagman himself is a composer, the author of three musical compositions. Blagman alleges that the Orchard entities did not acquire mechanical licenses for his musical compositions and the Retailer Defendants did not ensure that the compositions—available for sale on their websites—were properly licensed. Worse, the defendants have likely done this with “thousands of other copyrighted compositions,” Blagman complains. Maybe so. Who can say?

In order for anyone to say, says Judge Carter, we’re going to have to let this lawsuit progress some. To do that, of course, the complaint must survive the motions to dismiss, strike, etc. Judge Carter handily dealt with the motion to dismiss Blagman’s individual claim: Inasmuch as Blagman has alleged, with the requisite minimal specificity, the original works that are the subject of his claim, that he owns the copyrights to those works, that the works were properly registered, and the acts by which the defendants infringed his copyrights (and continue to do so), Blagman has done what he needs to do to survive the initial challenge to his personal complaint. (The defendants’ argument that Blagman fails to allege wilfullness on their part is… alarming, being that willfulness is not an element of a copyright infringement claim but rather significant only if a plaintiff seeks statutory damages, an election a plaintiff can make at any time before final judgment is rendered.)

The defendants’ motions to dismiss all class action aspects of the lawsuit were likewise unpersuasive, in large part because the defendants moved before even answering the complaint, and no discovery has been had. The defendants argued (unpersuasively) that not all members of the class, as Blagman would have it be defined—“All persons or entities who own all or part of one or more registered copyrighted musical compositions that have been reproduced, distributed, or sold by Defendants”—will have standing, because some of those members (if not the “vast majority”) have licensed their music to the defendants. Still, His Honor ruled, that’s not fatal at this very early stage, as those putative class members who turn out not to have standing can always be removed from the class later. Say, after discovery. Accordingly, with his denial (without prejudice) of the defendants’ motions, Judge Carter lifted the stay of the case and referred it to a magistrate judge “for general pre-trial matters, including discovery.”

Too soon, whole digital music industry. Too soon.

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