1

2
3
4
5
6

Sanford L. Michelman (SBN 179702)

smichelman@mrllp.com
Mona Z. Hanna (SBN 131439)
mhanna@mrllp.com
Melanie Natasha Howard (SBN 250936)
mhoward@mrllp.com
MICHELMAN & ROBINSON, LLP
17901 Von Karman Avenue, 10th Floor
Irvine, CA 92614
Telephone: (714) 557-7990
Facsimile: (714) 557-7991

11

David C. Lee (SBN 193743)

dlee@mrllp.com
Ilse C. Scott (SBN 233433)
iscott@mrllp.com
MICHELMAN & ROBINSON, LLP
One Post Street, Suite 2500
San Francisco, CA 94104
Telephone: (415) 882-7770
Facsimile: (415) 882-1570

12

Attorneys for Plaintiffs and Proposed Class

7
8
9
10

13

UNITED STATES DISTRICT COURT

Digital Music News

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15
16
17
18
19
20
21
22

25

CLASS ACTION COMPLAINT FOR

DAMAGES AND INJUNCTIVE
RELIEF

Plaintiffs,
v.

23
24

Case No.:

DAVID LOWERY, VICTOR

KRUMMENACHER, GREG
LISHER, and DAVID FARAGHER,
individually and on behalf of
themselves and all others similarly
situated,

RHAPSODY INTERNATIONAL,
INC., a Delaware corporation,

26

Defendant.

27
28

!1

CLASS ACTION COMPLAINT

24493

Plaintiffs David Lowery, Victor Krummenacher, Greg Lisher, and David

Faragher (collectively Plaintiffs), individually and on behalf of themselves and all

those similarly situated (each, a Class Member and, collectively, the Class) allege

as follows:
NATURE OF THE ACTION

5
6

1.

the numerous other similarly-situated holders of mechanical rights in

copyrighted musical works that Defendant Rhapsody International, Inc.

(Rhapsody or Defendant) has used without mechanical licenses in an

10

egregious, continuous and ongoing campaign of deliberate copyright

11

infringement.

12

2.

13

and/or distribute copyrighted musical compositions (the Works) to millions

This is a class action brought by Plaintiffs, on behalf of themselves and

Specifically, Rhapsody has and continues to unlawfully reproduce

14

of users via its interactive commercial music streaming service, as well as its

15

offline listening service. Rhapsody reproduces and/or distributes the Works

16

despite its failure to identify and/or locate the owners of those compositions for

17

payment or to provide them with notice of Rhapsodys intent to reproduce and/

18

or distribute the Works.

19

3.

20

mechanical rights is knowing and willful.

21

substantial harm and injury to the copyright holders, and diminishes the

22

integrity of the Works.

23

unlawful and without justification, as Rhapsody has continuously failed to use

24

any one of the many available mechanisms to properly obtain authorization for

25

the reproduction and/or distribution of the Works, whether in the form of a

26

voluntary or compulsory license, and whether or not the rightsholder is readily

27

identifiable. Touted as one of the earliest U.S.-based subscription streaming

28

services, Rhapsody has a significant and impactful presence in the music

Digital Music News

Rhapsodys infringement of Plaintiffs and the Class Members

Such use of the Works creates

Rhapsodys knowing and willful infringement is

!2

CLASS ACTION COMPLAINT

24493

industry, and the available resources to properly obtain all requisite licenses.

Rhapsodys current illegal practices and procedures in connection with its

unlicensed reproduction and/or distribution of the copyrighted Works,

combined with its failure to pay owed mechanical royalties, evidences its

practice of unfairly profiting off the backs of composers.

JURISDICTION AND VENUE

6
7

4.

jurisdiction under 28 U.S.C. 1331 and 1338 in that the claims herein arise

under federal copyright law (17 U.S.C. 101, et seq.) (the Copyright Act).

10

Jurisdiction also exists pursuant to 28 U.S.C. 1332(d)(2) because the matter

11

in controversy exceeds the sum or value of $5,000,000 (exclusive of interest

12

and costs), is a class action in which a member of the proposed class, including

13

Plaintiffs, is a citizen of a state different from Defendant Rhapsody, and the

This action is a civil action over which this court has original

14

number of members of the proposed class exceeds 100.

15

5.

16

U.S.C. 1400(a). On information and belief, a substantial part of the acts of

17

infringement complained of herein occurs or has occurred in this District, and

18

Defendant is subject to personal jurisdiction in this District.

Digital Music News

Venue in this District is proper under 28 U.S.C. 1391(b) and/or 28

THE PARTIES

19

Plaintiffs and the Class are individuals and entities residing in the United

20

6.

21

States and each of whom, during the Class Period (as defined herein), own the

22

reproduction and distribution rights of copyrighted musical works reproduced

23

and distributed by Defendant Rhapsody.

24

7.

25

Mr. Lowery has been a fixture of the music industry for decades, and like the

26

members of the class, has made his livelihood creating and performing music.

27

Mr. Lowery is a prolific songwriter and producer, and is the author or co-

28

author of more than 150 songs for his popular groups Cracker and Camper Van

Plaintiff David Lowery is an individual who is a resident of Georgia.

!3

CLASS ACTION COMPLAINT

24493

Beethoven.

Both Cracker and Camper Van Beethoven were formed in

California. Mr. Lowery recorded many of his musical compositions, which are

at issue in this lawsuit, in California. Mr. Lowery also tours and maintains his

booking agency California.

8.

California, residing in the City and County of San Francisco.

Krummenacher co-founded the band Camper Van Beethoven.

Lowery, Mr. Krummenacher is a prolific songwriter, and is the author or co-

author of numerous musical works, including many recorded by Camper Van

10

Beethoven. In addition to authoring and/or co-authoring musical works for

11

Camper Van Beethoven, Mr. Krummenacher has also released multiple solo

12

albums containing numerous sound recordings that embody his musical works.

13

9.

Plaintiff Victor Krummenacher is an individual who is a resident of

Mr.

Like Mr.

Plaintiff Greg Lisher is an individual who is a resident of California,

14

residing in the City and County of Santa Cruz.

Mr. Lisher is a renowned

15

musician and a member of the band Camper Van Beethoven, and is an author

16

or co-author of numerous musical works, including many recorded by Camper

17

Van Beethoven. In addition to authoring and/or co-authoring musical works

18

for Camper Van Beethoven, Mr. Lisher has also released multiple solo albums

19

containing numerous sound recordings that embody his musical works.

20

10.

21

residing in the City and County of Los Angeles. Mr. Faragher co-founded the

22

band Cracker, and has authored or co-authored numerous musical works

23

recorded by that band. In addition, Mr. Faragher is a renowned musician who

24

has collaborated with numerous other well-known artists.

25

11.

26

of business at 701 5th Avenue, Suite 3100, Seattle, Washington 98104.

27

Rhapsody is duly qualified to do and is doing business in California. It has a

28

California agent for service of process. It operates an office in San Francisco,

Digital Music News

Plaintiff David Faragher is an individual who is a resident of California,

Defendant Rhapsody is a Delaware corporation with its principal place

!4

CLASS ACTION COMPLAINT

24493

California. On information and belief, Rhapsody pays California taxes, and

owns and/or leases real property in California for its San Francisco office.

Moreover, the data relevant to Rhapsodys infringing activities is primarily

electronic and can be made available with ease in California.

12.

Rhapsody enters into commercial transactions, contracts and other

arrangements with residents of California.

License Agreement (EULA) specifically provides that it shall be governed

by the laws of the State of California. That same EULA designates, in its

10

forum selection clause, that all disputes will be subject to the exclusive

11

jurisdiction of the state and federal courts sitting in San Francisco, in the State

12

of California which exhibits Rhapsodys recognition that this District is an

13

appropriate venue.

Through its interactive Internet-based and application-based services,

Rhapsodys current End User

(See, Rhapsodys EULA from its website

14

www.rhapsody.com, attached hereto as Exhibit A). On information and belief,

15

Rhapsody advertises directly to California consumers. Performance of various

16

of Defendants contracts results in the knowing and repeated unlicensed

17

reproduction and distribution of musical works over the Internet to California

18

residents. Defendants online activities knowingly and purposely interact with

19

the computers and other electronic devices of residents in California and solicit

20

business from California consumers, including Class Members.

Digital Music News

FACTUAL BACKGROUND

21
22

13.

23

rights in numerous copyrighted compositions in the United States, and have the

24

mechanical rights to these Works.

25

14.

26

rights regarding the reproduction and/or distribution of the copyrighted Works,

27

including the associated licensing rights to such activities.

Plaintiffs and the Class are the copyright owners or owners of exclusive

Pursuant to the Copyright Act, Plaintiffs and the Class possess exclusive

28

!5

CLASS ACTION COMPLAINT

24493

Plaintiffs and the Class distribute, sell and/or license the Works in the

15.

form of CDs, cassettes, and other tangible media throughout the United States,

including in California. Plaintiffs and the Class reproduce, distribute, sell, and/

or license the Works in the form of digital audio files delivered and performed

via the Internet.

16.

money, energy, time, effort and creative talent to create and develop the Works.

17.

other services) that operates an Internet website (www.rhapsody.com)

10

permitting users to customize listening choices for recorded music and to

11

create Internet radio stations.

12

computers and handheld devices (via mobile applications) making its

13

streaming capabilities widely available to millions of users. Indeed, Rhapsody

Plaintiffs and the Class have invested and continue to invest substantial
Rhapsody is an interactive commercial music streaming service (among

Its Internet services are downloadable to

14

boasts that users can [s]tream millions of songs or download unlimited

15

playlists and songs straight to your phone or tablet and never miss a

16

beat.

17

www.rhapsody.com, attached hereto as Exhibit B).

18

18.

19

based packages: (1) its unRadio platform (an internet radio service launched

20

in or around June 2014); and (2) its Premier platform. Both subscription

21

platforms are offered to prospective subscribers on a limited free trial basis.

22

19.

Digital Music News

(See, Rhapsodys Apps and Devices page on its website

Rhapsody offers its services to the public via different subscription-

The unRadio subscription (costing $4.99 per month) permits users to:

24

Access a Personalized radio based on your favorite artist or track;

Skip as many songs you want;

25

Enjoy High quality, ad-free audio on mobile and on your computer;

23

and

26

Download any song to listen offline up to 25 songs.

27

www.rhapsody.com.)

28

!6

CLASS ACTION COMPLAINT

24493

(See

The Premier tier (costing $9.99 per month) offers subscribers the same

20.

unRadio features, plus the following benefits:

Download any song to listen offline unlimited;

3
4

Unlimited, on-demand access to millions of songs;

Listen on home audio devices:

6
7

A DJ with Rhapsody feature for kids; and

Family plans (which allow up to 5 separate accounts on a single

family plan to permit simultaneous use of the Premier platform of

Rhapsody). (See www.rhapsody.com.)

10

21.

11

services give members ad-free access to more than 32 million songs. (See

12

www.rhapsody.com.) As of December 2011, Rhapsody claimed that it had

13

surpassed 1 million subscribers. As of July 2014, Rhapsody boasted 2 million

Rhapsodys website currently boasts that its leading streaming music

14

paying subscribers for its streaming services. (See, Rhapsodys July 29, 2014

15

press release from its website www.rhapsody.com, attached hereto as Exhibit

16

C). As of July 2015, Rhapsody claimed to have surpassed 3 million worldwide

17

subscribers. (See, Rhapsodys July 22, 2015 press release from its website

18

www.rhapsody.com, attached hereto as Exhibit D). Consequently, Rhapsody

19

earns millions of dollars in revenues for its services, including from residents

20

of California.

21

22.

22

Rhapsodys services in a manner designed to attract free-trial users and paid

23

subscribers of its services.

24

23.

25

of its services Plaintiffs and Class Members musical compositions, and has

26

done so repeatedly for at least the past three years. In the course of rendering

27

services to its subscribers, Rhapsody reproduces and/or distributes Plaintiffs

28

and Class Members musical compositions numerous times.

Digital Music News

Rhapsodys Internet music service is intended to and does promote

Rhapsody regularly reproduces and/or distributes to listeners and users

!7

CLASS ACTION COMPLAINT

24493

Rhapsody has not licensed Plaintiffs and the Class Members musical

24.

compositions as required to reproduce or distribute the Works to its users and

subscribers.

25.

have paid to listen to and enjoy Plaintiffs and Class Members musical

compositions through mechanisms other than Rhapsody (e.g., through the

purchase of digital downloads) if the Works had not been reproduced and/or

distributed by Rhapsody, and Rhapsodys willful infringement has thus

diminished the California-based value of these Works.

On information and belief, a significant number of Californians would

Further, it was

10

foreseeable to Rhapsody that its willful infringement would diminish the

11

California-based value of the infringed Works.

12

26.

13

distributing musical compositions embodied in phonorecords, can obtain either

A service such as Rhapsody, interested in reproducing and/or

14

a voluntary license, secured by negotiating with individual copyright owners,

15

or a compulsory license, as outlined under 17 U.S.C. 115. A compulsory

16

license is not granted automatically under the Copyright Act.

17

obtain a compulsory license, Rhapsody is required to send a notice of its intent

18

to use musical compositions to each copyright owner before or within thirty

19

days after making, and before distributing any phonorecords of the work. See

20

17 U.S.C. 115(b)(1). This notice of intention to obtain a compulsory license

21

commonly referred to as a NOI serves the vital function of alerting

22

copyright owners to the use of their musical compositions and, in turn, the

23

right to compensation for that use. The failure to timely file or serve a NOI

24

forecloses the possibility of a compulsory license and, in the absence of a

25

negotiated license, renders the making and distribution of phonorecords

26

actionable as acts of infringement. 17 U.S.C. 115(b)(2).

27

27.

28

reproduction and/or distribution of the musical compositions at issue in this

Digital Music News

Rhapsody has not obtained voluntary or compulsory licenses for the

!8

CLASS ACTION COMPLAINT

24493

In order to

litigation. While Rhapsody has reaped the financial rewards of repeatedly

violating the Copyright Act, musical composition rightsholders are left

emptyhanded. This failure can only lead to one conclusion: that Rhapsody

values the expediency and financial benefits of wholesale copyright

infringement over the cost associated with obtaining the appropriate license.

28.

Class Members copyrighted works has substantially harmed and continues to

harm Plaintiffs and the Class Members.

29.

Rhapsodys unlawful reproduction and/or distribution of Plaintiffs and

Plaintiffs can identify all of the copyrighted musical compositions for

10

which they own the mechanical rights, and which Rhapsody has illegally

11

reproduced and/or distributed for its users.

12

illustrative list of Plaintiffs infringed Works include, but is not limited to, the

13

following compositions (among many others): Almond Grove, Copyright

A brief, non-exhaustive and

14

Registration No. PAu003764032; Get On Down the Road, Copyright

15

Registration No. PAu003745342; King of Bakersfield, Copyright

16

Registration No. PAu003745341; Tonight I Cross the Border, Copyright

17

Registration No. PAu003745338; Sugartown, Copyright Registration No.

18

PA0001919183; Out Like A Lion, Copyright Registration No.

19

PA0001919183; Darken Your Door, Copyright Registration No.

20

PA0001919183; and You Got Yourself Into This, Copyright Registration No.

21

PAu003745326. Plaintiffs have received Certificates of Copyright Registration

22

from the Register of Copyrights for these Works. (See Exhibit E.) On each of

23

the Certificates of Copyright Registration attached hereto, Plaintiffs

24

identifying information is readily available, as is the contact information with

25

respect to requesting rights and permissions in connection with those registered

26

Works.

27

30.

28

(through its third party agent the Harry Fox Agency) issued forty-four NOIs to

Digital Music News

Indeed, in admission of its wrongdoing, in February 2016, Rhapsody

!9

CLASS ACTION COMPLAINT

24493

Plaintiff Lowery pertaining to approximately 100 different musical works

embodied in sound recordings by Cracker and Camper Van Beethoven (the

2016 NOIs). The 2016 NOIs (all identifying Rhapsody as the Licensee)

reflect unlawfully backdated Expected Date[s] of Distribution ranging from

February 2, 2005 to June 3, 2015. Given Rhapsodys failure to timely transmit

NOIs pursuant to 17 U.S.C. 115(b)(1), the 2016 NOIs are invalid, and

Rhapsody is foreclosed from the possibility of a compulsory license and its

failure to alternatively obtain a negotiated license from Plaintiffs renders

Rhapsodys unlicensed making and distribution of Plaintiffs musical works

10

actionable as acts of infringement pursuant to 17 U.S.C. 115(b)(2).

11

31.

12

Members rights are highlighted by its 2016 NOIs containing the

13

conspicuously backdated Expected Date[s] of Distribution.

Rhapsodys egregious and willful violations of Plaintiffs and the Class

Moreover, in

14

addition to its own ability to research the identity of mechanical rights owners,

15

Rhapsody utilizes the Harry Fox Agency to provide its mechanical licensing

16

services, which on information and belief, controls one of the largest databases

17

on music compositions in the world, and the most comprehensive database in

18

the United States. As the 2016 NOIs demonstrate, Rhapsody, either directly or

19

through its agent, the Harry Fox Agency, possessed the means to identify and

20

locate the rightholders of musical works being reproduced and/or distributed

21

on its streaming platform, but opted not obtain the required licensing prior to

22

streaming such musical works.

23

32.

24

obtain a mechanical license for the distribution and/or reproduction of

25

copyrighted works even when the licensee has conducted a search for the

26

rightsholder but has been unable to identify him or her. Specifically, 17 U.S.C.

27

115(b)(1) provides that, If the registration or other public records of the

28

Copyright Office do not identify the copyright owner and include an address at

Digital Music News

Indeed, the Copyright Act also provides a specific methodology to

!10

CLASS ACTION COMPLAINT

24493

which notice can be served, it shall be sufficient to file the notice of intention

in the Copyright Office.

Circular 73, Compulsory License for Making and Distributing Phonorecords

(attached hereto as Exhibit F), only two steps are needed to effectuate such

notice: (1) file an NOI in the Licensing Division of the Copyright Office; and

(2) send the Copyright Office a statutory filing fee for each title listed in the

NOI. (Id., at 3.) The NOI filing fees, effective May 1, 2014, are $75 for the

first title, and $20 for each additional title (per group of 10).

Copyright Office, Licensing Fees, available at http://copyright.gov/

10

licensing/fees.html (last visited Feb. 28, 2016). There is no valid reason for

11

Rhapsodys failure to use this statutory procedure for obtaining a compulsory

12

license for the Works where the copyright owner is legitimately unknown,

13

leading to the conclusion that Rhapsody (1) failed to make reasonable efforts to

Per the U.S. Copyright Office. (rev. 10/2015)

(See U.S.

14

identify the rightsholders, and/or (2) decided not to comply with the

15

compulsory licensing process for unidentified rightsholders.

16

33.

17

Plaintiffs and the Class Members are entitled to recover all proceeds and other

18

compensation received or to be received by Rhapsody for its failure to pay

19

royalties.

20

inappropriately withheld from Plaintiffs and the Class Members. Plaintiffs and

21

the Class Members have been damaged, and Rhapsody has been unjustly

22

enriched, in an amount that is not as yet fully ascertained but which Plaintiffs

23

is informed and believes is not less than $150,000,000, according to proof at

24

trial.

25

34.

26

Rhapsodys infringement, including statutory damages awards of between

27

$750 and $30,000 for each infringed work, and up to $150,000 for a willful

28

infringement.

Digital Music News

As a direct and proximate result of Rhapsodys conduct alleged herein,

This includes any interest accrued on the royalty funds

The Copyright Act provides statutory penalties to discourage

!11

CLASS ACTION COMPLAINT

24493

CLASS ALLEGATIONS

1
2

35.

other similarly situated owners of mechanical rights for registered musical

compositions, which rights were improperly infringed by Rhapsodys

unlicensed reproduction and/or distribution of those compositions.

proposed class is comprised of and defined as follows:

Plaintiffs bring this action on behalf of themselves and on behalf of all

[ORIGINAL]

All owners of mechanical distribution and reproduction rights in

musical compositions registered under United States federal law,

10

which compositions were reproduced or distributed by Rhapsody

11

without Rhapsody first obtaining a voluntary or compulsory license,

12

since March 7, 2013.

The

13
14

[SPLIT]

15

(1) All owners of mechanical distribution and reproduction rights in

16

musical compositions registered under United States federal law,

17

which compositions were reproduced or distributed by

18

Rhapsody since March 7, 2013, without Rhapsody first

19

obtaining a voluntary or compulsory license.

Digital Music News

20

(2) All owners of mechanical distribution and reproduction rights in

21

musical compositions, which compositions were registered

22

under United States federal law with an effective date of

23

registration pursuant to 17 U.S.C. 412, and which

24

compositions were reproduced or distributed by Rhapsody since

25

March 7, 2013, without Rhapsody first obtaining a voluntary or

26

compulsory license.

27

As defined above, the proposed class does not consist of the following individuals

28

(among others):

nonrightsholders of mechanical rights, owners of musical

!12

CLASS ACTION COMPLAINT

24493

compositions that are not registered under United States federal law, and owners of

registered compositions for which a voluntary or compulsory mechanical license was

provided to Rhapsody.
This action may be properly brought and maintained as a class action

36.

because there is a well-defined community of interest in the litigation and the

members of the proposed class are clearly and easily ascertainable and

identifiable.

ownership of mechanical distribution and reproduction rights in registered

musical compositions within a particular time frame are objective and

The required elements of membership for the class, such as

10

ascertainable.

11

37.

12

joinder of all class members is impracticable.

13

believe that there are hundreds or thousands of class members and that those

The class for whose benefit this action is brought is so numerous that
Plaintiffs are informed and

14

class members can be readily ascertained from Rhapsodys database files and

15

records, and via discovery in this action.

16

maintain records of all of the musical compositions it reproduces or distributes.

17

Upon information and belief, Rhapsody has readily available access to the

18

largest database of mechanical rightsholders in the United States, via its agent,

19

the Harry Fox Agency, in order to identify class members. Rhapsody may also

20

access the United States Copyright Offices catalogue and other records to

21

conduct a search, or have the Copyright Office conduct a search for Rhapsody.

22

In addition, upon information and belief, Rhapsody also maintains records of

23

rightsholders who have submitted complaints to Rhapsody for its use of their

24

Works without license. Rhapsody may also seek to obtain information about

25

potential class members from performing rights organizations such as ASCAP,

26

BMI, or SESAC. There are also third party interactive streaming music royalty

27

collection agencies which may conduct audits to identify the musical

28

compositions for which Rhapsody has failed to obtain mechanical licenses. Of

Digital Music News

!13

For example, Rhapsody should

CLASS ACTION COMPLAINT

24493

course, potential class members may also, and already have, self-identify. The

Class Members can also be readily located and notified of this action.

38.

class, and their interests are consistent with and not antagonistic to those of the

other class members they seek to represent.

multiple musical compositions which Rhapsody has reproduced and/or

distributed without license and without providing notification to Plaintiffs.

Plaintiffs and all members of the class have sustained actual pecuniary loss and

face irreparable harm arising out of Rhapsodys continued infringement as

The claims of Plaintiffs are typical of the claims of the members of the
Plaintiffs holds the rights to

10

complained of herein.

11

39.

12

the interests of the absent members of the class and are able to fairly and

13

adequately represent and protect the interests of such a class. Plaintiffs have

Plaintiffs have no interests that are adverse to, or which conflict with,

14

raised a viable copyright infringement claim of the type reasonably expected to

15

be raised by members of the class, and will vigorously pursue those claims. If

16

necessary, Plaintiffs may seek leave of the Court to amend this Complaint to

17

include additional class representatives to represent the class or additional

18

claims as may be appropriate.

19

qualified and competent counsel who are committed to prosecuting this action.

20

40.

21

that predominate over any questions affecting only individual members of the

22

class. These common legal and factual questions, which do not vary from

23

class member to class member, and which may be determined without

24

reference to the individual circumstances of any class member include, without

25

limitation, the following:

26

(A)

Digital Music News

Plaintiffs are represented by experienced,

Common questions of fact and law exist as to all members of the class

Whether Rhapsody engaged in the practice of reproducing,

27

distributing or otherwise exploiting registered musical

28

compositions without first obtaining a mechanical license;

!14

CLASS ACTION COMPLAINT

24493

(B)

Whether Rhapsody failed to comply with the compulsory

licensing requirements of the Copyright Act, 17 U.S.C. 115,

including filing of Notices of Intent with the U.S. Copyright

Office;
(C)

Whether Rhapsodys reproduction, distribution or other

exploitation of registered musical compositions without first

obtaining a mechanical license constitutes a violation of the

Copyright Act, 17 U.S.C. 106 and 501;

(D)

Whether Rhapsodys unlicensed reproduction, distribution or

10

other exploitation of registered musical compositions was done

11

willfully, thereby entitling the members of the class to increased

12

statutory damages; and

(E)

The basis and method for determining and computing damages.

14

41.

A class action is superior to other available methods for the fair and

15

efficient adjudication of this controversy since individual litigation of the

16

claims of all class members is impracticable. The claims of the individual

17

members of the class may range from smaller sums to larger sums, depending

18

upon the number of Works infringed.

19

fewer Works infringed, the expense and burden of individual litigation may not

20

justify pursuing the claims individually. And even if every member of the class

21

could afford to pursue individual litigationwhich is highly unlikely in the

22

independent artist communitythe court system could not.

23

unduly burdensome to the courts in which individual litigation of numerous

24

cases would proceed. Individualized litigation would also present the potential

25

for varying, contradictory, or inconsistent judgments and would magnify the

26

delay and expense to all parties and to the court system resulting from multiple

27

trials of the same factual issues. On the other hand, the maintenance of this

28

action as a class action presents few management difficulties, conserves the

13

Digital Music News

!15

Thus, for those class members with

CLASS ACTION COMPLAINT

24493

It would be

resources of the parties and of the court system, and protects the rights of each

member of the class. Plaintiffs anticipate no difficulty in the management of

this action as a class action.

COUNT ONE

(Direct Copyright Infringement - 17 U.S.C. 106 and 501)

42.

every allegation contained in paragraphs 1 through __ of the Complaint with

the same force and effect as if fully set for that length herein.

43.

Plaintiffs and the Class reallege and incorporate by reference each and

Rhapsody, without license from Plaintiffs and the Class, has made

10

unauthorized reproductions and/or engaged in unauthorized distribution of

11

Plaintiffs and Class Members copyrighted musical compositions, including

12

but not limited to, those compositions listed in paragraph 29, infra.

13

conduct constitutes infringement of Plaintiffs and Class Members registered

Such

14

copyrights in violation of 17 U.S.C. 106, et seq. and 501.

15

44.

16

their copyrighted compositions constitutes a separate and distinct act of

17

infringement.

18

45.

19

and indifferent to the rights of Plaintiffs and Class Members.

20

46.

21

conduct, Plaintiffs and Class Members are entitled to the maximum statutory

22

damages or to their actual damages and Defendants profits, whichever are

23

higher, against Defendant pursuant to 17 U.S.C. 504(b). Plaintiffs and Class

24

Members will elect whether or not to seek statutory damages prior to final

25

judgment. Plaintiffs and Class Members are also entitled to attorneys fees and

26

costs by virtue of Defendants infringement pursuant to 17 U.S.C. 505.

27

47.

28

harm and injury to Plaintiffs and Class Members for which they have no

Digital Music News

The infringement of Plaintiffs and Class Members rights in each of

Rhapsodys conduct is willful, intentional, purposeful, in disregard of

As a direct and proximate result of Rhapsodys willful and infringing

Defendants acts have caused and will continue to cause irreparable

!16

CLASS ACTION COMPLAINT

24493

adequate remedy at law. Pursuant to 17 U.S.C. 502, Plaintiffs and Class

Members are therefore entitled a preliminary injunction and a permanent

injunction prohibiting infringement of Plaintiffs and Class Members

copyrights and exclusive rights under United States law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, on behalf of themselves and on behalf of all other

6
7

persons similarly situated, respectfully pray for relief against Defendant as follows:

1.

Certify this matter as a class action;

2.

Enter an order appointing Plaintiffs as class representatives and

10

Plaintiffs counsel as class counsel;

11

3.

Enter judgment in favor of Plaintiffs and the Class;

12

4.

Enter injunctive and/or declaratory relief as is necessary to protect the

13

interests of Plaintiffs and the Class (17 U.S.C. 502), including enjoining

14

Defendant from continued copyright infringement and violations of the

15

relevant provisions of the Copyright Act;

16

5.

17

third party auditor to identify the owners of Works reproduced and/or

18

distributed by Rhapsody despite Rhapsodys failure to first obtain a mechanical

19

license prior to reproducing and/or distributing the Works, and further

20

requiring Rhapsody to remove all such Works from its services until it obtains

21

proper licenses for them;

22

6.

23

be ascertained at trial;

24

7.

25

including but not limited to all penalties authorized by the Copyright Act (17

26

U.S.C. 504(c)(1), 504(c)(2));

27

8.

Digital Music News

Enter injunctive relief that requires Rhapsody to pay for the services of a

Award compensatory damages to Plaintiffs and the Class in an amount to

Award statutory damages to Plaintiffs and the Class according to proof,

Award reasonable attorneys fees and costs (17 U.S.C. 505);

28

!17

CLASS ACTION COMPLAINT

24493

Award Plaintiffs and the Class pre- and post-judgment interest to the

9.

extent allowable; and

10.

proper.

Award such other and further relief that the Court may deem just and

5
6

Dated: March 7, 2016

MICHELMAN & ROBINSON LLP

7
8

By
Sanford L. Michelman
Mona Z. Hanna
David C. Lee
Ilse C. Scott
Melanie Natasha Howard
Attorneys for Plaintiffs and Proposed
Class

9
10
11
12
13

Digital Music News

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

!18

CLASS ACTION COMPLAINT

24493