IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

BLUEWATER MUSIC SERVICES

CORPORATION,
Plaintiff, Case No. 3:17-cv-01051
v. District Judge Jon Phipps McCalla
SPOTIFY USA INC., Magistrate Judge Jeffrey S. Frensley
Defendant.

PLAINTIFFS RESPONSE IN OPPOSITION TO

DEFENDANTS MOTION FOR A MORE DEFINITE STATEMENT,
AND REQUEST FOR SANCTIONS

Defendant Spotify USA Inc.s (Spotify or Defendant) Motion for a More Definite

Statement (the Motion), pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, is the

second baseless motion filed by Spotify in this very young case, before the filing of any Answer

or responsive pleading. It is clearly meant to drive up Plaintiffs costs, and, additionally, results

in the wasting of judicial resources.1 (DI 28). Plaintiff, therefore, not only files this Opposition,

but also a request that the Court award sanctions against Defendant pursuant to 28 U.S.C. 1927

for vexatiously multiplying the proceedings, or its inherent power to award sanctions.

Defendants Motion reads more like a press release rather than a motion for a more

definite statement, in which it: (1) basically calls Plaintiffs counsel greedy and ascribes

nefarious motives to Plaintiffs counsel2 (DI 29 at 2, 5); (2) protests (too much) that Spotify is

1
Just two weeks prior, Spotify filed an untimely motion for expedited discovery, which was
equally baseless and a complete waste of judicial resources. (DI 18). It was also filed without a
proper meet and confer under this Courts Rules. The Court denied Spotifys motion. (DI 27).
Only hours later, Spotify filed the current Motion. (DI 28).
2
See, e.g., (DI 29 at 5) (More opt-outs equal a larger number of copyrighted works that Plaintiff

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not a modern day Napster, when it has in fact engaged in willful and widespread copyright

infringement by willfully failing to obtain appropriate licenses, which is precisely what Napster

did; (3) attaches articles detailing Spotifys purported good deeds (DI 29 at 3-5), while ignoring

the litany of articles to the contrary; (4) attempts to relate the present Motion to the Ferrick class

settlement (DI 29 at 2, 5, 9); (5) attempts to advance the knowingly frivolous argument that

interactive streaming is a public performance rather than a reproduction and/or distribution

requiring a mechanical license (DI 29 at 2, 6-8), when it has admitted publicly that such is not

the case, and that it is obligated to obtain mechanical licenses in order to lawfully operate its

interactive service; and (6) knowingly attempts to confuse the clearly established distinction

between interactive streaming and non-streaming (DI 29 at 6-7), and the need to obtain

mechanical licenses for interactive streaming, by ignoring, in the very cases Defendant cites, the

distinction between them, other universal authority on the subject, and, again, its own public

admissions on the subject.

The vast majority of Defendants Motion, therefore, includes points irrelevant to a

request for a more definite statement, and the few portions of Defendants Motion that are

relevant to such a request seemingly ignore the substance of Plaintiffs Complaint, and legal

authority. If Spotify had a basis for a motion to dismiss, it would have filed it, instead of this

concocted Motion that, as discussed below, is filed in complete bad faith, and is a waste of

judicial resources. As explained more fully below, while Spotify asserts that it is left guessing

with respect to how, and through what conduct, Spotify is alleged to have violated copyright

law (DI 29 at 1), it does so by ignoring swatches of Plaintiffs Complaint (which spans over

can join to its lawsuits, which means, principally, a larger potential payday for Plaintiffs
counsel.); (DI 29 at 2) (Plaintiff and its counsel hope to entice additional class members to opt
out.).

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twenty pages, and sets forth eighty allegations in plain English), and describes in detail how

Spotify built its business by failing to obtain appropriate licenses, failing to comply with Section

115 of the United States Copyright Act, and reproducing and distributing the musical

compositions at issue in this case in violation of the law. (See, e.g., DI 1 at 4, 22, 23, 33-37,

58-61, 62, 65-66, 68, 72, 74-75).

Defendants Motion must be denied because there can be no doubt that Defendant, like

thousands of others who have read and commented on this action, knew full-well the allegations

against Spotify after reading Plaintiffs Complaint. Plaintiffs allegations are neither

groundbreaking nor difficult to comprehend.3 As a result, Defendants highly disfavored4 and

rarely granted5 Motion should be denied, and Spotify sanctioned for unreasonably multiplying

these proceedings.

3
See, e.g., Nate Rau, Spotify sued for Guns 'N Roses, Willie Nelson, Miranda Lambert songs,
USA Today (July 19, 2017 1:51 PM), https://www.usatoday.com/story/tech/nation-
now/2017/07/19/spotify-sued-guns-n-roses-willie-nelson-miranda-lambert-songs/492215001/;
Erin M. Jacobson, Spotify May Have To Pay Songwriters $345 Million, Forbes (July 19, 2017
6:37 PM), https://www.forbes.com/sites/legalentertainment/2017/07/19/spotify-may-have-to-
pay-songwriters-345-million/#49023f04193d; Andrew Flanagan, Spotify Sued, Yet Again, Over
Compositions, NPR Music (July 21, 2017 10:05 AM),
http://www.npr.org/sections/therecord/2017/07/21/538501163/spotify-sued-yet-again-over-
compositions; Eriq Gardner, Spotify Hit With Two Lawsuits Claiming "Staggering" Copyright
Infringement, The Hollywood Reporter (July 18, 2017 2:20 PM),
http://www.hollywoodreporter.com/thr-esq/spotify-hit-two-lawsuits-claiming-staggering-
copyright-infringement-1021771; Janko Roettgers, Spotify Faces Two New Lawsuits From
Music Publishers, Variety (July 18, 2017 4:09 PM), http://variety.com/2017/digital/news/spotify-
faces-two-new-lawsuits-from-music-publishers-1202499249/; Sam Sodomsky, Spotify Sued for
Copyright Infringement Again, Pitchfork (July 19, 2017), https://pitchfork.com/news/spotify-
sued-for-copyright-infringement-again/.
4
Abbruzzino v. Hutchinson, No. 08-11534, 2009 U.S. Dist. LEXIS 31759, at *6 (E.D. Mich.
Apr. 15, 2009) (referring to a motion for a more definite statement as a highly disfavored
motion) (emphasis added) (See, Compilation of Unpublished Cases attached as Exhibit A).
5
Stewart v. Gracik, No. 1:10-cv-698, 2011 U.S. Dist. LEXIS 115665, at *12 (W.D. Mich. Aug.
26, 2011) (Rule 12(e) motions are rarely granted in view of the notice pleading standards of
Rule 8(a)(2)).

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 STATEMENT OF FACTS

This action was filed on July 18, 2017. (DI 1). As alleged in the Complaint, Spotify is a

digital music service that provides access to millions of songs while, at the same time, knowingly

and willfully infringing the copyrights of creators of music. Plaintiffs Complaint sets forth the

factual allegations supporting its claim for willful copyright infringement in great detail. (DI 1).

Plaintiff served Defendant on July 25, 2017. (DI 11). On August 17, 2017, Defendant filed a

discovery motion prior to the parties conducting a discovery conference as required by Rule 26

of the Federal Rules of Civil Procedure, without conducting any meet and confer regarding any

potential discovery disputes as required by this Courts Practice and Procedure Manual and

Local Rule 37.01(b)(3), and despite the fact that Plaintiffs counsel expressly offered a timely

meet and confer regarding any potential discovery disputes. (DI 18; DI 20). Following Plaintiffs

opposition to Defendants discovery motion, Defendant sought leave to file, and filed, a reply

brief. (DI 21; DI 25). On August 30, 2017, the Court denied Defendants discovery motion. (DI

27). That same day, only hours later, Defendant filed this Motion seeking a more definite

statement. (DI 28).

Defendant filed its Motion despite the fact that Plaintiffs Complaint sets forth the

following allegations, among many others:

Spotify is an interactive music streaming service (among other business services)

that allows its users to access and enjoy its catalog of musical recordings using its
downloadable application and web-based platform. As an interactive service,
Spotify must obtain either a direct or compulsory license allowing for the
streaming of each musical composition on its service.

(DI 1 at 23).

A mechanical license grants the right to reproduce and distribute copyrighted

musical compositions for use on compact discs, records, tapes, ringtones,
permanent digital downloads, interactive streams, and other digital formats.
Anyone wishing to use a musical work is required to license the composition
separately from the recording either through a direct voluntary mechanical license

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 secured by negotiating with individual copyright owners, or, in the United States,
through a compulsory mechanical license.

(DI 1 at 34).

As Section 115 indicates, a licensor has the right to terminate any type of Section
115 license for failure to cure any provision of the licenses, including non-
payment of royalties, lack of certified statements, or late payments, after 30 days.
Furthermore, a material breach of the license agreement can terminate a license or
create a right of recapture. Spotify did not cure its failure to comply with any
Section 115 license it may have initially obtained within 30 days of the
aforementioned letters.

(DI 1 at 65).

Under either scenario, whether because Spotify never licensed the compositions,
or because any such licenses have been terminated, Spotify has continued to
exploit compositions, including the Infringed Works, without a license to do so
and has therefore engaged in continuous actionable acts of copyright
infringement.

(DI 1 at 68).

By knowingly reproducing and distributing musical compositions without the

licenses necessary to legally reproduce and distribute the music, Spotify has been
and is willfully infringing upon the copyrights Bluewater owns and/or
administers, as well as the copyrights of music publishers that are not party to this
litigation.

(DI 1 at 72; see also DI 1 at 33-37, 55-64, 66, 74-77).

ARGUMENT

A. Overwhelming Case Law in this (and Every Other) Circuit Makes Clear that
Motions for a More Definite Statement are Disfavored and Rarely Granted.
Defendants Motion is No Exception.

Plaintiff agrees with Defendant that a more definite statement will be required when

defendants can only guess as to what conduct . . . an allegation refers. Paragon Fin. Grp., Inc.

v. Bradley Factor, Inc., No. 1:02-CV-222, 2003 U.S. Dist. LEXIS at *39 (E.D. Tenn. Dec. 4,

2003) (citations omitted). Plaintiffs Complaint clearly does not leave Defendant guessing as to

Spotifys alleged wrongdoings. (See, e.g., DI 1 at 4, 22-23, 33-37, 55-66, 68, 72, 74-77).

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Given the liberal pleading standard set forth in Rule 8, Rule 12(e) motions are disfavored.

Paragon Fin. Grp. v. Bradley Factor, Inc., No. 1:02-cv-222, 2003 U.S. Dist. LEXIS 22105, at

*38-39 (E.D. Tenn. Sep. 15, 2003) (citations omitted). Unsurprisingly, the Paragon Fin. Grp.

court (the very case cited by Defendant to support its Motion) denied defendants motions for a

more definite statement, despite the fact that fraud and the associated heightened pleading

standards was implicated. Tellingly, Defendant fails to set forth legal citations to support how, or

why, a Rule 12(e) motion is particularly appropriate here, as Defendant alleges. (See DI 29 at

2).

Pleading standards in federal court are not exacting, and [c]ourts disfavor motions for

more definite statements given the liberal pleading standards of Rule 8 and the opportunity for

pretrial discovery. Dotson v. Knox Cty., No. 3:15-CV-66-TAV-CCS, 2015 U.S. Dist. LEXIS

164494, at *11 (E.D. Tenn. Dec. 8, 2015) (citing Sallee v. Bd. of Prof. Responsibility of Supreme

Court, No. 3:15-CV-5, 2015 U.S. Dist. LEXIS 64314, at *35 (E.D. Tenn. May 18, 2015)

(citations omitted)); see also Adkisson v. Jacobs Eng'g Grp., Inc., No. 3:13-CV-505-TAV-HBG,

2017 U.S. Dist. LEXIS 68915, at *9 (E.D. Tenn. May 5, 2017) (citing Davis v. City of Memphis

Fire Dep't, No. 11-3076-STA-CGC, 2012 U.S. Dist. LEXIS 75128, at *7 (W.D. Tenn. May 31,

2012)) (same). [I]f the complaint meets the notice pleading requirements of Rule 8(a)(2) of the

Federal Rules of Civil Procedure, the motion should be denied. Dotson v. Knox Cty., No. 3:15-

CV-66-TAV-CCS, 2015 U.S. Dist. LEXIS 164494, at *11 (E.D. Tenn. Dec. 8, 2015) (quoting

Expert Janitorial, LLC v. Williams, No. 3:09-CV-283, 2010 U.S. Dist. LEXIS 23080, at *9 (E.D.

Tenn. Mar. 12, 2010) (citation omitted)).

Plaintiffs Complaint alleges that Defendant must obtain a direct mechanical license or

comply with the compulsory license requirements of Section 115 in order to lawfully reproduce

6
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and distribute the musical works embodied in the sound recordings it makes available on its

interactive streaming service, i.e., the compositions at issue. (See, e.g., DI 1 at 33-37).

Plaintiff clearly alleges Spotify failed to obtain or maintain such a license. (See, e.g., DI 1 at

58-61). Additionally, Plaintiff alleges Spotify reproduced, distributed, and otherwise made

available the compositions at issue. (See, e.g., DI 1 at 4, 22, 23, 62, 65-66, 68, 72, 74-75). It

should be undisputed that unlicensed reproduction and distribution of musical compositions

constitutes copyright infringement (aside from limited exceptions that clearly would not apply to

an entity such as Spotify, which is exploiting the compositions for a commercial purpose).

Plaintiff clearly alleges that Spotifys unlicensed reproduction and distribution of the

compositions at issue constitutes copyright infringement. (See, e.g., DI 1 at 62, 65-66, 68, 72,

74-75).

Therefore, Plaintiffs Complaint clearly provides Defendant fair notice of the wrongs

Defendant has allegedly committed. (See, e.g., DI 1 at 4, 22-23, 33-37, 55-66, 68, 72, 74-77).

In order for Defendant to prevail on its Motion, Defendant would have to show that Plaintiffs

Complaint is so vague or ambiguous that the party cannot reasonably prepare a response. Fed.

R. Civ. Pro. 12(e). The court should grant such a motion only when the complaint is so vague

or unintelligible that it is virtually impossible for the defendant to craft its responsive pleading.

Soumano v. Equifax Credit Info. Servs., No. 1:16-cv-313, 2016 U.S. Dist. LEXIS 96919, at *7

(S.D. Ohio July 25, 2016) (citing Monahan v. Smyth Auto., Inc., No. 1:10-CV-00048, 2011 U.S.

Dist. LEXIS 9877, at *7-8 (S.D. Ohio Feb. 2, 2011)). This is clearly not the case. In this case, it

is clear that [c]ommon sense inferences (backed by the utilization of the discovery process) will

reveal how-and if-the facts alleged support the violations alleged. Diaz v. G. Reynold Sims &

Assocs., P.C., No. 10-13419, 2011 U.S. Dist. LEXIS 335, at *1 (E.D. Mich. Jan. 4, 2011).

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 Motions for a more definite statement should not be granted unless the complaint is so

excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant

seriously in attempting to answer it. United States v. Reyes, No. 15-cv-02459-STA-dkv, 2015

U.S. Dist. LEXIS 143481, at *7 (W.D. Tenn. Oct. 22, 2015) (citing Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 514 (2002); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist.,

428 F.3d 223, 228 (6th Cir. 2005); E.E.O.C. v. FPM Group, Ltd., 657 F.Supp.2d 957, 966 (E.D.

Tenn.2009)).6

While Plaintiffs full Complaint provides greater context for Plaintiffs allegations, it

would be unimaginable for a sophisticated party knowledgeable of Spotifys interactive

streaming service and the accompanying obligations under the United States Copyright Act to

read the allegations cited above and not be apprised of Plaintiffs claim. Furthermore, given this

is not the first (or second) time that Spotify has faced similar allegations, Spotify and its

sophisticated counsel know exactly what Plaintiff is alleging, and fully understand the

repercussions for failing to obtain and maintain Section 115 licenses for the musical

compositions embodied in the sound recordings offered through its interactive streaming service.

In fact, the Ferrick class settlement referenced repeatedly in Defendants Motion involved

similar claims.7

6
See also Scarbrough v. R-Way Furniture Co., 105 F.R.D. 90, 91 (E.D. Wis. 1985) (citing
Stanton v. Manufacturers Hanover Trust Company, 388 F. Supp. 1171, 1174 (S.D.N.Y. 1975))
(It is generally held that Rule 12(e) is designed to strike at unintelligibility rather than simple
want of detail.); Schwable v. Coates, No. 3:05 CV 7210, 2005 U.S. Dist. LEXIS 38419, at *2
(N.D. Ohio Aug. 18, 2005) (same).
7
Defendants previous motion seeking expedited discovery requested the Court to grant the
relief in order to allow Plaintiff (or the music publishers whose interests Plaintiff represents) an
opportunity to opt into the Ferrick class settlement. (DI 18 at 6-7). In that motion, which came
weeks prior the current Motion, Defendant appeared to be fully apprised of the claims against it.
Defendants Motion is unclear as to what, if anything, prompted this change in Defendants
understanding of the issues raised in the Plaintiffs Complaint.

8
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 The cases are legion, and known fully by Spotifys counsel, that motions such as the

present Motion are summarily denied.8 While Plaintiff could continue to expound on the

numerous reasons Defendants highly disfavored and rarely granted Motion is baseless, a

cursory review of the pertinent document (Plaintiffs Complaint; see, e.g., DI 1 at 4, 22-23,

33-37, 55-66, 68, 72, 74-77), undercuts any alleged bases Defendant sets forth in its Motion. As

a result, Defendants Motion should be denied, and sanctions should be awarded Plaintiff based

upon Spotify vexatiously multiplying the proceedings.

B. Defendant Transparently Uses its Motion to Set Forth Assertions Not Grounded in
Law or Fact, Including Its Attempt to Compare Spotifys Interactive Service to
Inapplicable Non-Interactive Services and Suggesting Spotify is Not Required to
Obtain Mechanical Licenses for the Compositions Offered through its Service.

While the above argument alone is sufficient for this Court to deny Defendants Motion,

Defendant floats two assertions in its Motion that are wholly irrelevant to this Motion, but cannot

go unaddressed, including Defendants citations to case law and other authorities on pages 6 and

7 of its Motion. (DI 29 at 6-7). Spotify and its counsel are sophisticated parties who fully

understand Spotifys obligations under the United States Copyright Act. Spotifys suggestion

8
Diaz v. G. Reynold Sims & Assocs., P.C., No. 10-13419, 2011 U.S. Dist. LEXIS 335, at *22
(E.D. Mich. Jan. 4, 2011) (motions for a more definite statement are disfavored; their purpose is
better served by discovery)); Wills v. McLean Trucking Co., 76 F.R.D. 32, 33 (E.D. Tenn. 1977)
(The details of plaintiffs' claim are available to the defendant through utilization of the pretrial
discovery techniques.... Where, as here, a claim meets the requirements of Rule 8(a)(2), Federal
Rules of Civil Procedure, the Court will not require the plaintiffs to make a more definite
statement in their complaint.)); McCloy v. Corr. Med. Servs., No. 07-13839, 2008 U.S. Dist.
LEXIS 107622, at *3 (E.D. Mich. Dec. 18, 2008) (Federal courts generally disfavor motions for
more definite statements.) (emphasis added); Abrams v. Ciba Specialty Chems. Corp., No. 08-
0068-WS-B, 2008 U.S. Dist. LEXIS 68897, at *14 (S.D. Ala. Sep. 10, 2008) (As the formidable
standard set forth in Rule 12(e) suggests, [m]otions for more definite statement are viewed with
disfavor and are rarely granted.) (emphasis added). While the widespread disfavor of motions
for a more definite statement is clear from the above citations, there is ample authority that
would allow Plaintiff to continue citing such cases ad nauseam.

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that it, as an interactive streaming service,9 is not required to obtain mechanical license for the

musical compositions embodied in the sound recordings it offers through its interactive service,

is knowingly and completely unfounded.

1. As Defendant Knows Full Well, the Public Performance Licenses Referenced in

Defendants Motion Do Not Exonerate Spotify for Exploiting the Musical
Compositions at Issue through its Interactive Streaming Service.

Defendant asserts in its Motion, [t]his is not to say that streaming has no copyright

consequence. Streaming does result in a public performance of both sound recordings and

musical compositions. But Plaintiff does not allege that Spotify has violated its public

performance rights, and such an allegation would be futile. [(internal citations omitted)]. Spotify

has paid hundreds of millions of dollars to license the public performances of the musical

compositions it streams[.] (DI 29 at 7) (emphasis in original). This assertion seems to suggest

that Spotifyby virtue of obtaining public performance licensesis relieved of its duty to

obtain and maintain mechanical licenses for the musical compositions on its interactive service.

As Defendant is fully aware,10 and as discussed below, such an assertion could not be further

from the truth.

9
Spotify is the largest interactive streaming music service in the United States, offering
consumers the ability to receive digital audio transmissions of sound recordings and the musical
works embodied therein on an interactive and noninteractive basis . . . . (Exhibit B, Comments
of Spotify USA Inc. to USCO at p. 2) (emphasis added).
10
Under Section 115 of the Copyright Act licensees may obtain mechanical licenses by sending
Notices of Intention to either the copyright owner or, if the registration or other public records of
the Copyright Office do not identify the copyright owner and include an address at which notice
can be served, it shall be sufficient to file the notice of intention in the Copyright Office itself. 17
U.S.C. 115(b). The Section 115 NOIs filed by Spotify include filings as recently as September
3, 2017, meaning Spotify has continued to file Section 115 NOIs even after Defendant filed its
Motion. (See Section 115 NOIs Filed with the Copyright Office, available at
https://www.copyright.gov/licensing/115/noi-submissions.html). The fact that Spotify continues
to file NOIs under Section 115 for activity on its interactive streaming service, but in its Motion,
nevertheless claims to not understand how Plaintiffs Complaint implicates the rights of
reproduction and distribution is astounding.

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 Spotify has made numerous statements that, individually and/or collectively, completely

undermine the arguments that Spotify apparently attempts to set forth in its Motion. Spotify has

expressly, and repeatedly, acknowledged that Spotify, an interactive streaming service, must

secure rights to reproduce and distribute the musical works embodied in its sound recordings, or

else face the crushing statutory damages available under the United States Copyright Act. In

Spotifys own words, [t]o operate the Spotify Service, Spotify needs to secure multiple rights

from multiple copyright owners. These rights include, among others, the right to reproduce

sound recordings and the musical works embodied therein, the right to distribute sound

recordings and the musical works embodied therein, and the right to publicly perform sound

recordings and the musical works embodied therein by means of digital audio transmissions.

(Exhibit B, Comments of Spotify USA Inc. to USCO at p. 2) (emphasis added). Spotify secures

the right to reproduce and distribute the musical works embodied in sound recordings either

from musical work copyright owners (typically music publishers) through its licensing

administrator Harry Fox or pursuant to the statutory license set forth in Section 115 of the

Copyright Act. Spotify secures the right to publicly perform the musical works embodied in

sound recordings from the three performing rights organizations (PROs) in the United States

(i.e., ASCAP, BMI, and SESAC). (Id. at p. 2) (emphasis added). All of these licenses are

secured pursuant to the legal regime created by the Copyright Act. (Id.) (emphasis added).

To quote Spotify yet again, Spotify offers two types of streaming music services: a free-

to-users ad-supported service, which I will refer to as the ad-supported service, and a paid

subscription service, which I will refer to as the paid service. Both services pay three types of

royalties: (1) royalties to record labels for the public performance of sound recordings; (2)

royalties to performing rights organizations (PROs) for the public performance of

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compositions, which I will refer to as PRO royalties; and (3) mechanical royalties to the

Harry Fox Agency (HFA). Both PRO royalties and mechanical royalties flow to publishers

and songwriters (through the PROs and HFA, respectfully), and both are for the use of

compositions.). Exhibit C, Written Direct Testimony of Paul Vogel (Vice President, Head of

Global Financial Planning and Analysis and Investor Relations at Spotify) on behalf of Spotify

USA Inc. at p. 2 (emphasis added). To illustrate mechanical royalties for both Spotifys ad-

supported service and paid service, Mr. Vogel provides illustrations from the Harry Fox Agency,

Spotifys agent and administrator.11 Id.

In fact, in its suggestions to the United States Copyright Office, Spotify expressly

acknowledges its inability/difficulty to secure and maintain Section 115 licenses (i.e., the very

conduct underlying Plaintiffs Complaint):

Spotify believes that any reforms to the Copyright Laws should ensure the
following . . . Section 115 is modernized so that there is an efficient mechanism
for licensing large numbers of musical works, the ownership of which is often
split among multiple parties. This could involve licensing on a blanket basis,
whether voluntary or compulsory. . . . The rights to musical works, however, are
often split among numerous parties, typically music publishers that represent the
rights of individual songwriters. . . . This means that in order to avoid liability
for copyright infringement and the crushing statutory damages available
under the Copyright Laws Spotify must obtain licenses from each co-author
owning a share in an individual work, no matter how small that co-authors
interest might be[.]

(Exhibit B, Comments of Spotify USA Inc. to USCO at pp. 3-4) (emphasis added).

In addition to being contrary to Spotifys previous statements, Defendants assertions in

this regard would be contrary to, at least, (1) the United States Copyright Act (discussed herein);

11
Mr. Vogel also provides that the mechanical royalties formula for Spotifys ad-supported
service is illustrated below. Id. at p. 4 12 (citing 35 C.F.R. 385.12-13). Mr. Vogel continues,
[t]he formulas for mechanical royalties for Spotifys paid service is illustrated below. Id.
(citing 35 C.F.R. 385.12-13).

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(2) the Code of Federal Regulations12; (3) established case law (discussed herein); (4) Spotifys

own licensing practices13; (5) statements by Spotifys agent and administrator, the Harry Fox

Agency (discussed below); (6) consensus among those in the industry (discussed below); and (7)

logic, given that Spotify has recently settled two claims based upon its failure to obtain and

maintain appropriate licenses, including the Ferrick class settlement repeatedly referenced in

Defendants Motion. (See, e.g., DI 29 at 2, 5, 9).

While Plaintiff doubts that Defendant or its sophisticated counsel need an overview of

copyright law, copyright owners may authorize others to exploit their exclusive rights under the

Copyright Act, including the right to reproduce the work (e.g., make multiple copies of sheet

music or multiple copies of digital files) (17 U.S.C. 106(1)) . . . the right to distribute copies of

the work to the public by sale or rental (e.g., sell copies of sheet music in stores, sell copies of

digital files on iTunes or Google Play, or distribute temporary server copies via certain

streaming services such as Spotify) (17 U.S.C. 106(3)) . . . In the context of music publishing,

the combination of reproduction and distribution rights is known as a mechanical right. (See,

e.g., Exhibit E, Congressional Research Service (CRS) Reports, Money for Something: Music

12
Subpart B of the Code of Federal Regulations 385 establishes rates and terms of royalty
payments for interactive streams and limited downloads of musical works by subscription and
nonsubscription digital music services in accordance with the provisions of 17 U.S.C. 115.
385.10(a). Spotify, [a] licensee that, pursuant to 17 U.S.C. 115, makes or authorizes interactive
streams or limited downloads of musical works . . . shall comply with the requirements of [17
U.S.C. 115]. 385.10(b).
13
Spotifys license agreement with, at least some, publishers provides that Spotify will pay
Publisher the mechanical rates set forth under the compulsory license provision of Section 115 of
the United States Copyright Act. (See, e.g., Exhibit D, License Agreement at 3.1(i)). The grant
of license in this particular license agreement, which Spotify drafted, provides Spotify a
nonexclusive license to use, transmit, perform, reproduce, and deliver, through to the end user,
the Musical Works contained in Publishers Catalog via delivery of On-Demand Streams and
Limited Downloads, inclusive of all rights required in connection therewith, for all activities of
Licensee that fall within the scope of Section 115 of the United States Copyright Act . . . (See,
e.g., Exhibit D, License Agreement at 2.1). The license agreement repeatedly references
Section 115 of the Copyright Act, and Spotifys obligations thereunder.

13
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Licensing in the 21st Century, CRS Report No. R43984 at p. 2 (May 7, 2015)) (emphasis added).

Musical compositions are subject to the compulsory licensing scheme set forth in Section 115 of

the Copyright Act, under which mechanical licenses are conferred upon payment of a set

royalty rate. See 17 U.S.C. 115; Rodgers & Hammerstein Org. v. UMG Recordings, Inc., No.

00 Civ. 9322(JSM), 2001 U.S. Dist. LEXIS 16111, at *4 (S.D.N.Y. Sept. 26, 2001); 6 Nimmer

on Copyright 30.02(F)(2) (Nimmer). As an alternative to its statutory notice and royalty

requirements, Section 115 also allows copyright owners and aspiring licensees to directly

negotiate the terms and rate of royalty payments. See UMG Recordings, 2001 U.S. Dist. LEXIS

16111, at *4. As set forth in detail in Plaintiffs Complaint (see, e.g., DI 1 at 4, 22, 23, 33-37;

58-61; 62; 65-66, 68, 72, 74-75), Spotify must obtain and maintain such mechanical licenses in

order to lawfully exploit compositions on its interactive streaming service.

This is consistent with statements from The Harry Fox Agency, Spotifys agent and

administrator, which provides on its website: If you want to record and distribute a song that

you dont own or control, or if your business requires the distribution of music that was written

by others, you need a mechanical license. Harry Fox Agency, What Type of License Do I

Need?, available at https://www.harryfox.com/license_music/what_type_license.html. A

mechanical license grants the rights to reproduce and distribute copyrighted musical

compositions (songs) on CDs, records, tapes, ringtones, permanent digital downloads,

interactive streams and other digital configurations supporting various business models,

including locker-based music services and bundled music offerings. If you want to record and

distribute a song that you dont own or control, or if your business requires the distribution of

music that was written by others, you need to obtain a mechanical license. Harry Fox Agency,

What is a Mechanical License?, available at

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https://www.harryfox.com/license_music/what_is_mechanical_license.html (emphasis added).

If you are manufacturing and distributing copies of a song that you do not own or control, you

need to obtain a mechanical license. This is required by the U.S. Copyright Act, regardless of

whether or not you are selling the copies that you make. Under the U.S. Copyright Act, the right

to use copyrighted, non-dramatic musical works in the making of sound recordings, including

CDs, records, tapes, ringtones, permanent digital downloads, and other digital formats (e.g.,

interactive streams) for distribution to the public for private use is the exclusive right of the

copyright owner. Harry Fox Agency, Why do I Need a Mechanical License?, available at

https://www.harryfox.com/license_music/why_need_mechanical_license.html (emphasis added).

It is important to note that under the plain language of the United States Copyright Act,

Spotifys use would qualify as a digital phonorecord delivery. The United States Copyright

Act provides:

A digital phonorecord delivery is each individual delivery of a phonorecord by

digital transmission of a sound recording which results in a specifically
identifiable reproduction by or for any transmission recipient of a phonorecord of
that sound recording, regardless of whether the digital transmission is also a
public performance of the sound recording or any nondramatic musical work
embodied therein. A digital phonorecord delivery does not result from a real-time,
non-interactive subscription transmission of a sound recording where no
reproduction of the sound recording or the musical work embodied therein is
made from the inception of the transmission through to its receipt by the
transmission recipient in order to make the sound recording audible.

17 U.S.C. 115(d). Spotify allows users to select which songs they want to hear, and, as such,

does not constitute a non-interactive transmission. 14 As Defendant is fully aware:

14
See, e.g., ARTICLE: PANDORA & SPOTIFY: LEGAL ISSUES AND LICENSING
REQUIREMENTS FOR INTERACTIVE AND NON-INTERACTIVE INTERNET RADIO
BROADCASTERS, 54 IDEA 23, 46-47 (For its offline and interactive streaming services,
Spotify has to consider not only performance rights, but also copyright holders' exclusive
distribution and reproduction rights, as provided for in 106(1) and (3) of the Copyright Act,
respectively. . . . First, Spotify has to obtain licenses to perform both the musical work and the

15
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 The right to play the musical composition is referred to as the "public
performance right," while the right to reproduce and distribute musical
compositions embodied in sound recordings is commonly referred to as the
"mechanical right." It is the "mechanical right" in the musical works listed in
the Complaint that is at issue here. More specifically, it is the copyright holders'
mechanical rights in "limited downloads" and "on-demand streams" of the
musical compositions embodied in sound recordings referenced in the
Complaint that are at issue. Permission to reproduce and distribute copyrighted
works in these formats may be obtained by voluntary license i.e., with the
consent of the copyright holder or by compulsory license, pursuant to 17
U.S.C. 115.

Appalseed Prods., Inc. v. Medianet Dig., Inc., 2012 U.S. Dist. LEXIS 93946, at *5-6 (S.D.N.Y.

July 6, 2012) (emphasis added) (noting in footnote 5, the Copyright Royalty Board finalized

royalty rates for mechanical licenses for limited downloads and on-demand streams).

It is clear that mechanical licenses are required to engage in the process of interactive

streaming, and the industry has reached a consensus on this topic. What Spotify is (rather

casually) proposing in its 12(e) Motion would not just be directly contrary to settled law and

Spotifys admissions and practice, but settled industry practice. For example, the Recording

Industry Association of America, Inc. commented before the United States Copyright Office:

Over the course of the last eight years a consensus has slowly emerged among the
most affected parties as to what types of licenses different kinds of services need
in order to operate. This consensus is reflected in the licensing practices of
individual companies as well as in agreements reflecting discussions among
representatives of the affected industries. As noted in the NPRM, 73 Fed. Reg. at
40,805, RIAA, NMPA and The Harry Fox Agency notified the Office of the first
such agreement in 2001. RIAA and NMPA have recently reached a similar
agreement with the Digital Media Association. It thus is accepted by all those

sound recording. Like Pandora, it generally obtains blanket licenses from PROs for the
performance of the musical works. However, unlike Pandora, Spotify is not entitled to statutory
licensing under 114 of the Copyright Act, since it is an interactive service. Section
114(d)(3)(C) of the Copyright Act provides that an interactive service must obtain the copyright
from a sound recording performance rights society or from the copyright holder. . . . Second, in
order to lawfully and interactively stream songs, Spotify has to acquire mechanical licenses for
musical works. This is proscribed under 115 of the Copyright Act, which establishes a
compulsory licensing scheme for copying and distributing phonorecords to which the musical
works are fixed.) (emphasis added).

16
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 entities that under current law . . . licenses from copyright owners of musical
works are required under 17 U.S.C. 115 to engage in the process of interactive
streaming, including the making and/or transmission of server, cached, network
and RAM buffer copies necessary to engage in such activity.

(Exhibit F, Comments of the Recording Industry Association of America, Inc. before the

Copyright Office dated August 28, 2008 at p. 3) (emphasis added). Defendants current Motion,

unsurprisingly, caught the attention of a number of those in the music industry due to

Defendants assertion that Spotify does not need mechanical licenses to exploit the musical

compositions embodied in the sound recordings it offers through its interactive streaming

service. For example, David Israelite, President and CEO of the National Music Publishers

Association (NMPA), commented on the irrationality of Defendants assertion, stating this

has been a settled legal issue for over 10 years: in two previous legal settlements; in the Section

115 regulations; in legal filings of the parties in the CRB [Copyright Royalty Board]; in the

business practices of all interactive streamers. . . . While I am aware that defendants in lawsuits

will throw up all kinds of crazy defenses, this is a road down which Spotify does not want to

travel. (Exhibit G, Billboard, Spotify, Bluewater & Mechanical Licensing: Whats Really

Driving the Streaming Giants Latest Legal Fight, September 5, 2017; see also Exhibit H,

Digital Music News, The Worlds Largest Music Publishers Just Declared War on Spotify In

No Uncertain Terms, September 6, 2017 (Last week, Spotifys attorneys decided that the

reproductive mechanical license doesnt apply to streaming services. But thats definitely the

wrong answer for major music publishers.).

As set forth in Plaintiffs Complaint, a compulsory licensee has an obligation to live up to

the statutory requirements provided for in Section 115. Plaintiffs Complaint also provides that a

copyright owner or co-owner has a right to terminate Section 115 licenses should a licensee not

live up to its statutorily prescribed obligations. See also 17 U.S.C. 115(c)(6) (Such

17
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termination renders either the making or the distribution, or both, of all phonorecords for which

the royalty has not been paid, actionable as acts of infringement under section 501 and fully

subject to the remedies provided by sections 502 through 506.); EMI Entmt World, Inc. v.

Karen Records, Inc., 603 F. Supp. 2d 759, 765-66 (S.D.N.Y. 2009).

There are, of course, consequences for a compulsory licensees default. Nimmer

provides:

If the copyright owner fails to receive from the compulsory licensee the monthly
payment of royalties, or the monthly or annual statements of account when due,
the owner may give written notice to the licensee that, unless default is remedied
within thirty days from the date of the notice, the compulsory license will be
automatically terminated. Upon such termination, the making and distribution of
all phonorecords for which a royalty has not been paid will be considered acts of
infringement, as if no compulsory license had ever been obtained. In that event,
those who made and those who distributed the phonorecords will be jointly and
severally liable as infringers, whether or not they were, as such, the compulsory
licensees.

2 Nimmer on Copyright 8.04 (2017).

Defendant exploited Plaintiffs musical compositions embodied in the sound recordings

Spotify offers through its interactive streaming service when it allowed users on its interactive

streaming service to listen upon request and/or download the compositions at issue, despite the

fact that Spotify lacked the necessary and statutorily prescribed mechanical licenses. This is the

crux of Plaintiffs argument, and was clearly set forth in Plaintiffs Complaint. Defendants own

Motion even recognizes that Spotify offers interactive/on-demand streaming. (See DI 29 at 5

(By offering access to a very large licensed library of content, available for streaming on

demand, Spotify makes music available at a price and in a format that people like.)) (emphasis

added). However, it should go without saying, whether or not Spotifys service is user friendly or

affordable to the consumer is not at issue in this case, rather the focus of this action is whether

Spotify obtained and maintained the licenses required to lawfully exploit the musical

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compositions at issue in this case. If not, Spotify actions with respect to such musical

compositions constitutes copyright infringement,15 and, in light of the notices received by

Spotify (but ignored) and other facts set forth in Plaintiffs Complaint, is best described as willful

copyright infringement.

2. As Defendant Knows Full Well, the United States Copyright Act and Established Case
Law Clearly Distinguish Spotifys Interactive Streaming Service from the Non-
Interactive Services in the Case Law Cited in Defendants Motion.

Defendant also asserts in its Motion that streaming by its very definition cannot

infringe upon either the reproduction right under 17 U.S.C. 106(1) or the distribution right

under 17 U.S.C. 106(3). (DI 29 at 2) (emphasis in original). This assertion, of course, ignores

the fact that Plaintiffs Complaint repeatedly refers to Spotify as an interactive streaming

service. (DI 1 at 15, 23, 28, 33, 34). Defendant then cites numerous inapposite cases and

other sources ostensibly attempting to compare Spotifys interactive service with the non-

interactive services discussed in the cited cases and sources. (DI 29 at 6-7). As Defendant is fully

aware, and as discussed below, this is not an apt comparison. What Defendant inexplicably fails

to mention is that Spotifys interactive streaming service is distinguishable from non-

15
In its Motion, Defendant, on its way to a multi-billion dollar initial public offering, had the
audacity to raise the issue of fair use as a potential defense. In determining whether the use of
a copyrighted work is fair, we consider: (1) the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes (commercial
use weighs against fair use); (2) the nature of the copyrighted work (finding that the exploited
work(s) are creative and published weighs against fair use); (3) the amount and substantiality of
the portion used in relation to the copyrighted work as a whole (wholesale copying weighs
against fair use); and (4) the effect of the use upon the potential market for or value of the
copyrighted work (adverse affect on potential market weighs against fair use). See, e.g., Reiner v.
Nishimori, No. 3:15-cv-00241, 2017 U.S. Dist. LEXIS 65070, at *17 (M.D. Tenn. Apr. 28, 2017)
(citing 17 U.S.C. 107). Applying these factors to Spotifys actions in this case: (1) Spotifys
exploitations of the musical compositions at issue is unquestionably commercial; (2) the musical
compositions at issue are creative and published; (3) Spotifys actions evidence wholesale
copying of the musical compositions at issue; and (4) Spotifys wholesale distribution of the
musical compositions at issue to consumers for free through its interactive streaming service
negatively affects the songwriter(s) and/or music publisher(s) ability to monetize the same.

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interactive streaming under the law, including by the very case law and other authorities that

Defendant cites in its Motion.

There is a qualitative difference in the activity of interactive and non-interactive

streaming services:

An interactive service is defined as a service that enables a member of the public

to receive a transmission of a program specially created for the recipient, or on
request, a transmission of a particular sound recording . . . which is selected by or
on behalf of the recipient. 17 U.S.C. 114(j)(7). If a digital service does not
provide users with this level of control it is non-interactive. The distinction
between interactive and non-interactive services is meaningful because non-
interactive digital music services are eligible for a compulsory or statutory
licensing fee set by the Copyright Royalty Board [CRB] made up of Copyright
Royalty Judges appointed by the Library of Congress, see Arista Records, LLC
v. Launch Media, Inc., 578 F.3d 148, 151 (2d Cir. 2009), whereas interactive
services must independently negotiate rates for sound recording licenses.

In re Pandora Media, Inc., 6 F. Supp. 3d 317, 332 (S.D.N.Y. 2014); see also 17 U.S.C.

114(j)(7) (If an entity offers both interactive and noninteractive services (either concurrently or

at different times), the noninteractive component shall not be treated as part of an interactive

service.).

Interactive services are defined as those which transmit[] and/or provide[] access to

transmissions of content comprising or containing music to 'Users' at their request or direction.

In re Pandora Media, Inc., 6 F. Supp. 3d 317, 330 n.27 (S.D.N.Y. 2014). Interactive services, in

contrast to satellite radio and preexisting subscription services, allow an end user to hear a

particular song on demand, and do not benefit from a compulsory license. Music Choice v.

Copyright Royalty Bd., 413 U.S. App. D.C. 312, 317, 774 F.3d 1000, 1005 (2014) (citing 17

U.S.C. 114(d)(2)-(3); H.R. Rep. No. 105-796, at 87-88 (Conf. Rep.)).

It is telling, and clearly intentional, that Defendant only cites authority relating to

Pandora, Sirius XM Radio, and other non-interactive services, rather than interactive services

20
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such as Spotify. Numerous courts and other sources have specifically noted the distinction

between Spotifys interactive streaming service and other non-interactive services. See, e.g.,

Broad. Music, Inc. v. Pandora Media, Inc., 140 F. Supp. 3d 267, 289 (S.D.N.Y. 2015) (Nor is

Pandora directly comparable to on-demand services such as Spotify, because Pandora listeners

cannot select specific songs.) (emphasis added); In re Pandora Media, Inc., 6 F. Supp. 3d 317,

329 (S.D.N.Y. 2014) (But, while programmed radio and customized radio are Pandora's

primary competition, Pandora also competes with interactive, on-demand internet music

services. Its identified competitors in this market include Apple's iTunes Store, RDIO,

Rhapsody, Spotify, and Amazon.); see also ARTICLE: PANDORA & SPOTIFY: LEGAL

ISSUES AND LICENSING REQUIREMENTS FOR INTERACTIVE AND NON-

INTERACTIVE INTERNET RADIO BROADCASTERS, 54 IDEA 23, 44 (The key difference

between Spotify and Pandora is that Spotify is a so-called interactive service, which explains

the differences between the two services' licensing requirements.).

While Pandora (or the other non-interactive services cited by Spotify in its Motion) may

be able to get by on public performance licenses alone, the same cannot be said of Spotify and its

interactive streaming service.16 Once this distinction is taken into account, one need not look

16
(See, e.g., Exhibit C, Congressional Research Service (CRS) Reports, Money for Something:
Music Licensing in the 21st Century, CRS Report No. R4398 at p. 3 (May 7, 2015)) (Users of
an on demand, or interactive digital radio service (e.g., Spotifys free and subscription
services and the Vevo music video website) can listen to songs upon request, thereby
experiencing a hybrid of playing a CD and listening to a radio broadcast. To enable multiple
listeners to select songs, the service makes temporary reproductions of digital files on servers. It
pays both reproduction royalties and performance royalties to music publishers/songwriters
and to record labels/artists.) (emphasis added); see also ARTICLE: PANDORA & SPOTIFY:
LEGAL ISSUES AND LICENSING REQUIREMENTS FOR INTERACTIVE AND NON-
INTERACTIVE INTERNET RADIO BROADCASTERS, 54 IDEA 23, 25 (The differences in
licensing requirements flow from the different services Spotify and Pandora provide. While
Pandora is a so-called non-interactive service and has to deal with fewer licenses, Spotify's on-
demand streaming qualities make it an interactive service, which means it also has to take

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further than the very case law cited by Defendant to realize where Defendants argument falls

apart: The right of distribution under section 106(3) is expressly subject to section 115, which

allows a person who obtains a compulsory license to make and distribute phonorecords of the

work. Deacon v. Pandora Media, Inc., 901 F. Supp. 2d 1166, 1175 (N.D. Cal. 2012) (citing 17

U.S.C. 115(a)(1)). Defendants Motion simply ignores this recognized distinction.

For example, Defendant cites Flo & Eddie Inc. v. Sirius XM Radio Inc., No. CV 13-5693

(PSG) (RZX), 2014 U.S. Dist. LEXIS 139053, at *19 (C.D. Cal. Sept. 22, 2014), for the

proposition that: If a service enables users to download a song, then that service engages in the

reproduction and distribution of a sound recording and of the musical composition that sound

recording embodies. . . . But if the service streams a song, then the stream is an isolated public

performance of a sound recording, and of the musical composition that sound recording

embodies. (DI 29 at 6). This citation is inexcusably misleading in at least three ways.

First, Defendant seemingly attempts to lump Spotifys interactive streaming service in

with Sirius XM Radios non-interactive streaming service. Second, as far as Plaintiff can tell, the

Flo & Eddie Inc. opinion cited by Defendant does not even address the issue Defendant is citing

it for, i.e., presumably, whether Spotifys actions (i.e., its interactive streaming service)

constitute a reproduction and/or distribution of the musical compositions at issue. A more apt

citation to a Flo & Eddie Inc. opinion would be:

To that end, while I agree with the conclusion of my colleagues in the majority
that the common law of this state does not recognize a right of public
performance, I would answer the pertinent part of the certified question in the
negative with this caveat: public performance does not include the act of
allowing members of the public to receive the on-demand transmission of
particular sound recordings specifically selected by those listeners.

into consideration other licensing rights in addition to the mere performance of a song, such
as distribution and reproduction rights.) (emphasis added).

22
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Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2016 NY Slip Op 08480, 16, 28 N.Y.3d 583, 611-

12, 48 N.Y.S.3d 269, 286, 70 N.E.3d 936, 953 (Fahey, J. (concurring)) (emphasis added). Third,

Defendant notes that a download (as distinguished from a stream) is a reproduction and

distribution of the musical composition that a sound recording embodies, but fails to mention

that Spotify allows its users to download specific songs. On Spotifys website, Spotify urges

consumers, With Spotify Premium, you can download music so its available everywhere you

go. You can listen without an internet connection . . . . Spotify Website,

https://support.spotify.com/sk/using_spotify/the_basics/listen-offline/ (last visited Sep. 12,

2017). Therefore, in addition to attempting to compare Spotifys interactive streaming service to

a non-interactive streaming service, citing to Flo & Eddie Inc. for a proposition it does not

support, and inappropriately comparing its interactive streaming service to a public performance,

Defendant fails to mention that Spotifys interactive service also allows users to download music

as well (i.e., the very thing Spotify is seemingly attempting to distinguish itself from). It is clear

that Spotify needs a mechanical license to offer plaintiffs' songs . . . because that service

provides a feature where a user can download a song for offline playback, which creates a fixed

copy, considered to be a phonorecord, of the song on the user's device. See, e.g., Yesh Music,

LLC v. Amazon.com., Inc., 2017 U.S. Dist. LEXIS 54417, at *5 (E.D.N.Y. Apr. 8, 2017)

(citations omitted).

Next, Defendant cites Deacon v. Pandora Media, Inc., 901 F. Supp. 2d 1166, 1175 (N.D.

Cal. 2012), for a similar proposition, namely the right to publicly perform or stream a

copyrighted sound recording is different from copyright holders right to distribute copies of the

copyrighted work to the public. (DI 29 at 6). Defendants citation to Deacon v. Pandora Media,

Inc. contains the same glaring, and misleading, error as the above citation to the extent that

23
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Defendant suggests Spotifys interactive streaming service (which also allows users to listen to

songs upon request and/or download music) is analogous to Pandoras non-interactive streaming

service. It is not.

C. Defendant Has Made Clear From the Beginning that it is Willing to Vexatiously
Multiply the Proceedings.
Defendants Motion is purely tactical. Defendant almost assuredly knew that its Motion

lacked merit, and would ultimately be denied. Nevertheless, Defendant proceeded to file a

Motion claiming to seek a more definite statement from Plaintiff. If Defendant wants a clear

statement of Plaintiffs allegations against Spotify, Defendant need not look further than

Plaintiffs Complaint. (See, e.g., DI 1 at 4, 22, 23, 62, 65-66, 68, 72, 74-75). Defendant

seemed to bypass an attempt to articulate why, in Defendants opinion, Plaintiffs Complaint is

so vague or unintelligible that it is virtually impossible for Defendant to respond. Soumano,

2016 U.S. Dist. LEXIS 96919, at *7. It is not. Furthermore, and more troubling, Defendants

attempt to mischaracterize the law by implying (if not expressly stating) that Spotifyan

interactive streaming service which allows its users to both select and stream songs on-demand

and/or download songsforgoes the need for mechanical licenses by entering into public

performance licenses. (DI 29 at 6-7). Such an assertion is, as Defendant knows, meritless.

Defendants Motion is part of a strategy to deflect attention from Defendants

wrongdoing, delay the inevitable, and make the litigation of this case as hard on Plaintiff as

possible. Defendants Motion is truly the epitome of a vexatious pleading that improperly

multiplies the proceedings, and wastes the Courts judicial resources. Given the utter lack of

support for Defendants Motion, and the ulterior motive behind its filing, Plaintiff asks the Court

to award sanctions pursuant to 28 U.S.C. 1927 in order to cover the excess costs, expenses, and

attorneys fees reasonably incurred because of Defendants conduct. Additionally, Plaintiff

24
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respectfully requests the Court to consider exercising its inherent power to sanction Defendant

for filing yet another frivolous motion. "The Sixth Circuit has imposed three conditions for

imposing sanctions under the Court's inherent authority: (1) the litigant's claims are meritless, (2)

the litigant knew or should have known his claims were meritless, and (3) his claims were filed

for an improper purpose. Houston v. Potter, Nos. 3:06-CV-318, 3:06-CV-387, 3:07-CV-008,

3:07-CV-187, 2007 U.S. Dist. LEXIS 39898, at *22 (E.D. Tenn. May 30, 2007) (citing First

Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 512, 516 (6th Cir. 2002)). As

discussed throughout this Opposition, each is applicable here. "Pursuant to its inherent powers, a

court in the Sixth Circuit may impose sanctions to curb vexatious, bad faith litigation." Id.

Plaintiff respectfully requests the award of such sanctions.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests the Court summarily deny

Defendants Motion, and grant the sanctions requested herein.

Respectfully submitted,

/s/ Richard S. Busch

Richard S. Busch (Bar No. 14594)
KING & BALLOW
315 Union Street, Suite 1100
Nashville, Tennessee 37201
Tel: (615) 726-5434
rbusch@kingballow.com

Attorney for Plaintiff

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 CERTIFICATE OF SERVICE

I hereby certify that on the 13th of September, 2017 I served the proceeding document by
filing it with the Courts ECF system which automatically delivered a copy to:

Samuel F. Miller
Baker Donelson
211 Commerce Street, Suite 800
Nashville, TN 37201

Jeffery E. Ostrow
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, CA 94304

Christopher J. Sprigman
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017

/s/ Richard S. Busch__________

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