yesh music v. amazon - first amended complaint.pdf

8/15/2019 Yesh Music v. Amazon - first amended complaint.pdf

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Richard M. Garbarini (RG 5496)GARBARINI FITZGERALD P.C.

250 Park Avenue 7th Floor New York, New York 10177Telephone: (212) 300-5358

Facsimile: (347) 218-9478

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK---------------------------------------------------------------xYESH MUSIC, LLC, and JOHN K. EMANUELE,individually and on behalf of all other similarlysituated copyright holders,

Plaintiffs,

v.

AMAZON.COM, INC., and AMAZON DIGITALSERVICES, INC.,

Defendants.--------------------------------------------------------------x

Index No.: 16-cv-1406 (BMC)

FIRST AMENDED CLASS ACTIONCOMPLAINT AND JURY DEMAND

FOR DAMAGES FOR COPYRIGHTINFRINGEMENT ANDUNDERPAYMENT OF ROYALTIES

Plaintiffs YESH MUSIC, LLC and JOHN EMANELE, by and through their attorneys at

GARBARINI FITZGERALD P.C., bring this First Amended Class Action Complaint and Jury Demand

against Defendants AMAZON.COM, INC. (“AMAZON”) and AMAZON DIGITAL SERVICES,

INC., (“ADS”) based on Defendants’ infringement of plaintiffs’ and the Putative Class’

copyrighted musical works pursuant to the Copyright Act and Copyright Revisions Act, 17 U.S.C.

§§ 101 et seq. (the “Copyright Act” or “Act”), and defendants’ deliberate scheme to withhold

royalties owed plaintiffs and a Putative Class of copyright holders that received royalties.

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 1 of 41 PageID #: 405


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NATURE OF THE ACTION

1. Plaintiffs are the beneficial rights holders to one hundred and eighteen (118)

copyright registrations covering one hundred and forty eight (148) musical recording

2. Defendant ADS owns and operates an internet music streaming service which is

subject to § 115 of Title 17 of the United States Code (“Amazon Music”). As such, defendants were

required to serve a Notice of Intent to Obtain Compulsory License (“NOI”), in the form proscribed

by 37 CFR § 201.18, within thirty (30) days from the date each copyrighted musical composition was

included on its service.

3.

Amazon Music can only be accessed through defendant AMAZON’s “Amazon

Prime” product. Defendant AMAZON is one of the world’s largest retailers claiming it has 80

million subscribers for its Amazon Prime product.

4. Defendants have jointly engaged in a systematic process of infringing the

copyrighted recordings of plaintiffs and the Putative Class by reproducing, publishing, and

transmitting the copyrighted recordings of plaintiffs and the Putative Class. Defendants failed to

serve a valid Notice of Intent for a Compulsory License (NOI) pursuant to Section 115 of the Act

prior to exploiting plaintiffs’ and the Putative Class’ recordings.

5. When defendants launched Amazon Music in June 2014, they entered into blanket

agreements with the major and minor record labels for the rights, including the publishing rights, to their

catalogue of recordings. The major and minor record labels represent approximately 70% of the

recordings in the Amazon Music library.

6. Defendants simply ignored their obligations to independent artists like plaintiffs

and the Putative Class.

7. Defendants also artificially deflated their royalty payment obligations to almost



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nothing by: (i) illegally manipulating the per stream royalty rate, (ii) miscalculating the all-in

payable royalty pool, (iii) obfuscating the nature of its service to qualify for a lower statutory per

user rate, (iv) deleting the run-times of 25-45% of the recordings on its service by classifying

them as “unknown”, (v) physically changed the run-times of some recordings to avoid paying

extra royalties, (vi) illegally allowing six month royalty free periods to students, (vii) failing to

include revenue in certain calculations and illegally excluded revenue in others, and (viii)

deleting stream information, or failing to report stream data, to the Professional Rights Organizations

(PROs) prior to payment.

8. The laundry list of frauds, and misdeeds, perpetrated by the defendants shocks

the conscious. Defendants altered records, misstated information, and systematically infringed

the copyrighted recordings of plaintiffs’ and the Putative Class, while simultaneously engaging

in an illegal scheme to reduce its royalty obligations to almost nothing in violation of the

Copyright Act.

PARTIES

9. At all times material hereto, Plaintiff Yesh Music, LLC (“YESH”) was, and is, a

limited liability company organized under the laws of the State of New York, with its principal

offices located at 75-10 197th Street, Flushing, New York. YESH is engaged in, among other

things, the business of music publishing and otherwise commercially exploiting its copyrighted

sound recordings of the band The American Dollar . The sole members of Plaintiff are Richard Cupolo

and John Emanuele, who are also the sole composers of the Copyrighted Compositions.

10. At all times material hereto, Plaintiff John K. Emanuele (“EMANUELE”) was,

and is, an individual and resident of Queens. EMANUELE released two albums under the name

“Zero Bedroom Apartment”, which Defendant elected to exploit without service of an NOI or



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payment of royalties.

11. Upon information and belief, defendant AMAZON.COM, INC. (AMAZON”), is

a Delaware corporation with its principal place of business in Seattle, Washington. AMAZON

owns and operates the Amazon.com website, and equivalent international websites. AMAZON

claims to have more than two hundred and fifty million active customers, and nearly eighty million

monthly subscribers who are allowed to access to Amazon Music purportedly for free.

12. Upon information and belief, defendant AMAZON DIGITAL SEVICES, INC.

(“ADS”) is a Delaware corporation with its principal place of business in Seattle, Washington.

ADS owns and operates the Amazon Music website. ADS has no independent operation.

Instead, it is completely controlled in every manner by defendant AMAZON.

JURISDICTION AND VENUE

13. The jurisdiction of this Court is based upon 28 U.S.C. §§ 1331 and 1338 in that

this controversy arises under the Copyright Act and Copyright Revision Act of 1976 (17 U.S.C §

101 et seq.). This action is a civil action over which this court has original jurisdiction.

14. On information and belief, a substantial part of the facts of infringement

complained of herein occurs or has occurred in this district, and defendant is subject to personal

jurisdiction in this district because they maintain a headquarters in this district located at 7 West

34th Street, New York, NY.

15. Personal jurisdiction over defendants is proper in this Court, among other reasons,

on the grounds that defendants, through their interactive web-based subscription service, caused the

unlicensed distr ibution of the plaintiffs’ and the Putative Class’ copyrighted recordings throughout the

State of New York, including within this judicial district.

16. This Court has personal jurisdiction over defendants pursuant to CPLR § 302

(New York’s long-arm statute) due to their continuous and systematic business activities within



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New York as described below. Defendants have conducted and do conduct business within New York.

Defendants, directly or through intermediaries (including distributors, retailers, and others), ship,

distribute, offer for sale, sell, and advertise products in the United States, and specifically to New York.

Defendants purposefully and voluntarily distributed and reproduce plaintif fs’ and the Putative Class’

recordings in New York.

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

U.S.C. § 1400(a).

18. Plaintiffs have the right to bring the within action pursuant to 17 U.S.C. § 501(b).

19. The copyright in every musical composition at issue was registered in the United

States Copyright Office. 17 U.S.C. § § 409-412.

20. Copies of each certificate issued by the U.S. Copyright Office to plaintiffs and

assignments registered with the U.S. Copyright Office are annexed and incorporated hereto

respectively as Exhibits A and B. Alternatively, the registrations for the groupings are attached

as Exhibit C.

21. Each of plaintiffs’ copyrighted compositions was registered within three months

of publication, or thirty days prior to the infringement, and satisfy the registration prerequisite

under 17 U.S.C. 412(c).

CLASS ALLEGATIONS – PUBLISHING CLASS

22. Plaintiffs bring this action on behalf of themselves and on behalf of all other

similarly situated owners of the publishing a/k/a “mechanical” rights for registered musical

compositions, which were published on Defendants’ Amazon Music product on or after March

22, 2016.

23. The Publishing Class is comprised of and defined as follows:

(a) Plaintiffs and a Putative Class of artists are not subject to a blanketlicense and who own the publishing rights to their recordings, and



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submitted those recordings to defendant ADS through a third partyaggregator, and defendants elected to exploit the recordings on or afterMarch 22, 2013 (the "Putative Publishing Class").

24. This action may be properly brought and maintained as a class action 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.

25. The class for whose benefit this action is brought is so numerous that joinder of

all class members is impracticable. Plaintiffs are informed and believe that there are thousands

of class members and that those class members can be readily ascertained from d efendants’

database files and records, and via discovery in this action.

26. Upon information and belief, defendants have maintained records of the musical

compositions it publishes and/or distributes.

27. The Putative Class Members can be readily located and notified of this action.

28. The claims of plaintiffs are typical of the claims of the members of the Putative

Class, and their interests are consistent with and not antagonistic to those of the other Putative

Class members they seek to represent.

29. Plaintiffs hold the rights to many copyrighted musical compositions which

Defendants have reproduced and/or distributed on or after March 22, 2013.

30. Plaintiffs, and all members of the Putative Class, have sustained actual pecuniary

loss and face irreparable harm arising out of d efendants’ continued infringement as complained

of herein.

31. Plaintiffs have raised a viable copyright infringement claim of the type reasonably

expected to be raised by members of the Putative Class, and will vigorously pursue those claims.

32. If necessary, plaintiffs may seek leave of the Court to amend this First Amended



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Complaint to include additional class representatives to represent the Putative Class or additional

claims as may be appropriate.

33. Plaintiffs are represented by experienced, qualified and competent counsel who is

committed to prosecuting this action.

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

predominate over any questions affecting only individual members of the class.

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

to class member, and which may be determined without reference to the individual

circumstances of any class member include, without limitation, the following:

(a) whether defendants have reproduced or distributed or otherwise exploitedvia their Amazon Music service on or after March 22, 2013;

(b) whether defendants have reproduced or distributed or otherwise exploited plaintiffs’ and the Putative Class’ recordings via their Amazon Music servicewithout first obtaining a license or other required authorization;

(c) whether defendants engaged in a system of materially alteringdocuments to obfuscate the infringements;

(d) whether d efendants’ unauthorized reproduction, distribution or otherexploitation of registered musical compositions was done willfully,

thereby entitling the members of the class to increased statutorydamages;

(e) whether defendant AMAZON infringed the rights of all copyrightholders by offering albums for free if the subscriber applies for a creditcard;

(f) the basis and method for determining and computing damages; and,(g) whether d efendants’ conduct is continuing, thereby entitling

plaintiffs and members of the class to injunctive or otherrelief.

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

adjudication of this controversy since individual litigation of the claims of all class members is

impracticable.

37. The claims of the individual members of the class may range from smaller sums to

larger sums, depending upon the number of infringements. Thus, for those Putative Class



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members with smaller claims, the expense and burden of individual litigation may not justify

pursuing the claims individually. Even if every member of the class could afford to pursue

individual litigation, which is highly unlikely in the independent artist community, the court

system could not.

38. It would be unduly burdensome to the courts in which individual litigation

of numerous cases would proceed. Individualized litigation would also present the potential

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

expense to all parties and to the court system resulting from multiple trials of the same

factual issues.

39. On the other hand, the maintenance of this action as a class action presents

few management difficulties, conserves the resources of the parties and of the court system,

and protects the rights of each member of the class.

40. Plaintiffs anticipate no difficulty in the management of this action as a class

action.

CLASS ALLEGATIONS – ROYALTY CLASS

41. Plaintiffs bring this action on behalf of themselves and on behalf of all other

similarly situated owners of mechanical rights for registered musical compositions, which

rights were improperly infringed by d efendants’ systematic and unlawful reduction in the all-in

royalty pool, payable pool, and per-stream allocation.

42.

The Royalty Class is comprised of, and defined, as follows:

“All owners of mechanical distribution and reproduction rights in

musical compositions registered under United States federal law, whichcompositions were reproduced or distributed by defendants on or afterMarch 22, 2013.”

43. This action may be properly brought and maintained as a class action because



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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.

44. The Putative Class for whose benefit this action is brought is so numerous that

joinder of all class members is impracticable. Plaintiffs are informed and believe that there are

thousands of class members and that those class members can be readily ascertained from

d efendants’ database files and records, and via discovery in this action.

45. The members of the Royalty Class are so numerous that joinder of all members is

impracticable. While the exact number of Putative Class members is unknown at the present

time, it is estimated that there are thousands of members in the Putative Class.

46. Despite the numerical size of the Putative Class, the identities of the Putative

Class members can be ascertained by mapping. Plaintiffs and their counsel do not anticipate any

difficulties in the management of this action as a class action.

47. Plaintiffs will fairly and adequately represent the interests of the Class and are

committed to vigorously prosecute this action and have retained competent counsel experienced

in class action litigation.

48. Plaintiffs are class members and have no interests antagonistic to or in conflict

with other Putative Class members.

49. Plaintiffs are represented by attorneys who have extensive experience in

prosecuting class actions and will adequately represent the Putative Class in this action.

50. Upon information and belief, defendants maintained records of the musical

compositions it distributed and the royalties paid.

51. The Putative Class Members can be readily located from these records and

notified of this action.



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52. Plaintiffs and all members of the Royalty Class have sustained actual pecuniary

loss and face irreparable harm arising out of defendants’ systematic and unlawful diminution of

the royalty payments with accounting for those payments as described herein.

53. Plaintiffs have raised a viable claim of the type reasonably expected to be raised

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

54. If necessary, plaintiffs may seek leave of the Court to amend this First Amended

Complaint to include additional class representatives to represent the class or additional claims

as may be appropriate.

55.

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

predominate over any questions affecting only individual members of the class.

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

to class member, and which may be determined without reference to the individual

circumstances of any class member include, without limitation, the following:

(a) whether defendants made accurate royalty payments for the

musical compositions it reproduced or distributed;(b)

whether defendants routinely violates the promotional royalty rate by allowing free streaming well in excess of 30 days, in fact, up to180 days;

(c) whether defendants failed to make the royalty calculations required ingood faith and on the basis of the best knowledge, information and belief of the licensee at the time payment is due, and subject to the additionalaccounting and certification requirements of 17 U.S.C. 115(c)(5) and §201.19;

(d) whether defendants failed to provide a statement of account whichshall set forth each step of its calculations with sufficient informationto allow the copyright owner to assess the accuracy and manner in

which the licensee determined the payable royalty pool and per-playallocations;

(e) whether defendants failed to provide an accurate list of every stream ofa sound recording that occurred in the digital music service in that monthto these third party companies;

(f) the basis and method for determining and computing damages; and,(g) whether d efendants’ conduct is continuing, thereby entitling plaintiffs

and the members of the Putative Class to injunctive or other relief.



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

adjudication of this controversy since individual litigation of the claims of all class members is

impracticable.

58. The claims of the individual members of the class may range from smaller sums

to larger sums, depending upon the number of infringements. Thus, for those class members

with smaller claims, the expense and burden of individual litigation may not justify pursuing the

claims individually. Even if every member of the class could afford to pursue individual

litigation-which is highly unlikely in the independent artist community-the court system could

not.

59. It would be unduly burdensome to the courts in which individual litigation of

numerous cases would proceed. Individualized litigation would also present the potential for

varying, contradictory, or inconsistent judgments and would magnify the delay and expense to

all parties and to the court system resulting from multiple trials of the same factual issues.

60. On the other hand, the maintenance of this action as a class action presents few

management difficulties, conserves the resources of the parties and of the court system, and

protects the rights of each member of the class.

61. Plaintiffs anticipate no difficulty in the management of this action as a class action.

GENERAL FACTS

62. As a general proposition, a copyright confers on the owner the exclusive right to

reproduce the copyrighted Composition.

63. Absent a license from the copyright owner, which the owner is free to grant or deny,

reproduction of the composition by another constitutes copyright infringement.

64. When Congress enacted the Copyright Act of 1909, it was concerned that exclusivity



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with respect to musical compositions would give rise to “a great music monopoly.” It therefore modified

the principle of exclusivity in the case of nondramatic musical Compositions by enacting a compulsory

license provision which, in defined circumstances, imposed upon the copyright owner a license permitting

the mechanical recording of the copyrighted song “on such media as a phonograph record or a piano roll.”

65. Although recording technology has changed since 1909, licenses to record musical

compositions on such media continue to be called “mechanical licenses.”

66. The compulsory mechanical license concept was carried forward in Section 115 of the

Copyright Act of 1976 which, generally speaking, permits one wishing to record a copyrighted

nondramatic musical Composition to do so in the absence of the copyright owner's consent in exchange

for payment of a statutory royalty.

67. But the availability of compulsory mechanical licenses is dependent on the strict

limitations of Section 115(b)(1) of the Act which requires in pertinent part that “[a]ny person who wishes

to obtain a compulsory license under this section shall, before or within thirty days after making, and

before distributing any phonorecords of the Composition, serve notice of intention to do so on the

copyright owner.”

68. Under section 115, those who seek to make and distribute reproductions of a musical

Composition may obtain a license to do so by serving a NOI on the copyright owner, no later than thirty

days after making, and before distributing, any phonorecords. 17 U.S.C. § 115(b)(1). Once an entity has

served the NOI, which entity must provide statements of account and pay the statutorily prescribed

royalties on a monthly basis. 17 U.S.C. § 115(c)(5).

69.

The name and address of the owner of the publishing rights is readily ascertained from

the third party aggregator who submits same with the recordings for review.

70. If, for some reason, the name and address of the owner of a given composition cannot be

readily identified from the submission records, or the public records of the Copyright Office, the user may

file the NOI with the Copyright Office. 17 U.S.C. § 115(b)(1). In that case, the user must pay a filing fee



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77. When a mechanical license is not obtained, the copyright owners of the songs and

the songwriters do not get paid for the reproduction and distribution of their music. For

songwriters, like plaintiffs, whose songs are not played on the radio, the royalties earned from

streaming revenue is often substantially the largest part of their income.

78. Moreover, reproducing a song without a mechanical license is copyright

infringement which may not be cured after the fact by attempting to obtain a compulsory license.

Section 115 further provides that “[flailure to serve or file the notice required by clause [1]

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

renders the making and distribution of phonorecords actionable as acts of infringement. ..”

79. Senate Report confirms:

80. Of course, a digital transmission service would be liable for any infringing digital

phonorecord delivery it made in the absence of a compulsory license or the authorization of the

musical work copyright owner: Senate Report No. 104-128, S. Rep. 104-128 (1995) at 27

(emphasis added).

81.

The Senate Report further states:

If a record company grants a license under its rights in the soundrecording only, and does not grant a mechanical license under thecopyright in the musical work embodied in the sound recording, itis the transmission service's responsibility to obtain a licenseunder the musical work copyright. Senate Report No. 104-128,S. Rep. 104-128 (1995) at 31.

AGGREGATORS

82. Aggregators like TuneCore, Distro Kid, or CD Baby, function exactly like a record label

for independent artists.

83. When Amazon Music went live in June 2014, aggregators like TuneCore submitted most



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of their catalogue for review. The artists does not know their recordings were submitted for review unless

they receive an NOI.

84. After June 2014, the artist checks any one of approximately 30 internet stores, Amazon

Music being one, and the aggregator submits the master recordings to the selected stores.

85. Each of the aggregators make it very clear that they do not convey the publishing rights.

86. \After receipt of the master audition recordings from the aggregator, defendant may elect

to exploit the masters, or reject one or all of the sound recordings due to "technical or editorial

specifications.".

87. If defendants elected to exploit the recordings, they were obligated to serve an NOI

within 30 days, and before distribution.

DEFENDANTS AMAZON AND ADS

88. Defendant ADS owns and operates Amazon Music.

89. Amazon Prime allows the subscriber to purchase permanent digital downloads

through Amazon MP3, store music in a digital locker through Amazon Locker, and stream

music as well as create a tethered download library of temporary digital downloads through

Amazon Music.

90. Defendant AMAZON is believed to have 60-80 million subscribers to its Amazon

Prime product.

91. Defendant ADS launched Amazon Music on or about June 21, 2014, which gave

paying Amazon Prime subscribers access to a library of songs for no additional cost and without

ads.

92. There’s only one way to get Prime Music, and that’s through an Amazon Prime

subscription, which, in the U.S., costs $99 for the entire year.



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93. In addition to free streaming music and tethered downloads, the Prime

subscription gives the subscriber, among other things:

Free two-day shipping to anywhere in the contiguous U.S. Free same-day

delivery is available to 16 metro areas across the country as long as your ordermeets a few criteria.Prime Pantry: Purchase grocery, household, and pet items to anywhere in thecontiguous U.S. for a flat delivery fee of $6.Free Cloud Storage: for video, photo, and document files up to a limit of 5GB. A viable alternative to services like Dropbox, OneDrive, and Google Drive.Prime Photos: Unlimited photo storage with Amazon Cloud Drive. Photosuploaded to the cloud will not count towards the storage limit of your account.Stored photos may only be used for personal, non- commercial use.Prime Video: TV and movie streaming service, like Netflix and Hulu. Has awide selection, plus a number of original series, which make it a great service

for cutting the cord.Kindle First: Every month, you ‘renew eBooks and you can choose todownload one of them for free. This usually covers several genres so there’s

always something that might interest you. Only available to members in theU.S.Kindle Owners’ Lending Library: Every month, you can borrow one KindleeBook for free and read it on any Kindle-compatible device. There are no duedates for borrowed eBooks and they can be returned at any time, but you mustreturn them before you can borrow another.

94. If the potential subscriber has a “.edu” email address, the user can get a six-month

free trial and a 50% discount when the trial ends.

AMAZON’S DIRECT INFRINGEMENT

95. Defendant AMAZON directly infringed the below registrations by offering the

Plaintiff YESH’s latest release for free if the user applied for an AMAZON credit card.

AMAZON had no license or authority for this use. All eleven registrations for the grouping

Across the Oceans, including the registration for the pre-released single Mosaic, have been

infringed.

THE NOIs SERVED WERE INVALID

96. Pursuant to regulation Section 201.18(d)(2) of Title 37, defendant ADS was



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required to make “(2) A “clear statement” of the information listed in paragraph (d)(1) of this

section requires a clearly intelligible, legible, and unambiguous statement in the Notice itself and

without incorporation by reference of facts or information contained in other documents or

records.”

97. As an initial matter, defendant ADS empowered its agent MusicReports, Inc. to

serve NOIs and calculate and pay the publishing royalties.

98. MusicReports operates a website accessed at which

allows artists to review their publishing royalties, as well as the NOIs which purportedly were

served.

99. MusicReports, on behalf of defendants, materially altered the NOIs of plaintiffs

and the Putative Class to include numerous tracks from later releases.

100. The deception is obvious upon investigation. First, some NOIs of plaintiff YESH

were not served but just appeared on the MusicReports website. Eight of the plaintiff YESH’s

NOIs contain tracks released years after the NOI was purportedly served.

101. Moreover, all ten of the NOIs that exist on Defendant ADS’ agent’s system

pertain to “locker services” and do not apply to the Amazon Music service. Only three of the

NOIs were served after the launch of Amazon Music. Those NOIs covered 17 tracks. At the

time the three NOIs were purportedly served, plaintiffs had all 148 copyrighted tracks up on the

Amazon Music service for at least 6 months.

102.

All ten NOIs clearly state on their face: “Digital Phonorecord Deliveries, as set

forth in 17 U.S.C. Sec. 115 including, but not limited to, interactive streams and permanent

digital downloads associated with a paid locker service and/or a purchased content locker

service.” (Emphasis added).



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103. Defendant AMS cannot convert the NOIs to fit whatever purpose they choose.

When the CRB created the five new products -- Limited Offerings, Mixed Service Bundles,

Music Bundles, Paid Locker Services and Purchased Content Locker Services, it required each

to comply with Section 115.

104. Here, the undeniable purpose stated for the use all ten NOIs are associated with a

paid locker.

105. The fact that defendant AMS included the statement “but not limited to”, does not

change the legal purpose because “but not limited to” is not a clear an unambiguous use as

required by law.

106. As a direct result, all ten NOIs cannot be used to secure rights for the Amazon

Music Service.

107. Further, the NOIs were untimely. The November 2015 NOI was uploaded to the

MusicReports system, but never mailed as required by law. They are all, therefore, facially

invalid.

108. Defendants have infringed each of Plaintiffs’ 118 copyright registrations, and did

so with clear intent. Intent can be inferred from Defendants’ actions, and includes “willful

blindness” and “reckless disregard” to Plaintiffs’ rights.

109. As of the date of this First Amended Complaint, defendants still have eleven of

YESH’s copyrighted recordings available for streaming.

110.

Defendant was told NOI was ever received for these works, and defendants have

deliberately flaunted the law.



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THE ALTERED NOIs

111. As an initial matter, in June 2014, all of plaintiffs’ recordings were being actively

streamed. See Exhibit D.

112. The majority of the recordings never appeared on NOI, making it inarguable that

defendant infringed those recordings.

113. The majority of the recordings that appeared on the bogus Amazon NOIs were

added years after the NOI was purportedly served. It is inarguable that defendants have

infringed the registrations for those recordings.

114.

Only eleven tracks were purportedly timely covered, but the NOI on which those

tracks appear was never served.

115. Eight of the subject NOIs are invalid because they were materially altered in an

attempt to deceive plaintiff YESH into believing its recordings on Defendant AMS’ Music

Service were there subject to a valid license.

116. Defendant ADS, through its agent MusicReports, illegally added all of the

unlicensed recordings to the NOIs electronically stored on MusicReports’ servers.

117. Defendants’ scheme is borne out through a simple analysis of the NOIs which

shows over 25% of the identified recordings on eight of the ten NOIs come from “albums” that

were released years after the NOI was served.

118. The electronic NOIs are stored on the servers of Defendant ADS’ agent Music

Reports. Each month Music Reports creates a royalty calculation report for each copyright

holder that purportedly details the streaming data and identifies which previously served NOI

covers each track.

119. Every month, before the reports are released, MusicReports, at the direction of



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Defendants, makes sure every track is purportedly licensed. Instead of licensing the recordings

within 30 days in which they were made available as required by law, MusicReports waits until

the unlicensed track has been streamed at least once, and then adds that track to a previous NOI.

120. This fraudulent scheme provides a compelling cover to mask the infringements.

A rights holder would have to go through an intensively time consuming analysis, as Plaintiffs

have done here, to comprehend the full extent of the depth of the Defendants’ violation of their

exclusive rights under the Act.

121. In 2014, plaintiff contacted Defendant’s agent, MusicReports, and requested the

actual physical NOIs from MusicReports. Music reports employee, Jon Johnson, told plaintiff

that he was delighted to provide the requested documents. Approximately ten minutes after Mr.

Johnson agreed to provide the originals, R. Johnson sent an email rescinding the prior-approval.

122. Jon Johnson reversed his position after speaking to his supervisor.

123. The email, went as follows:

Jon Johnson Mon, Sep 22, 2014 at 9:19 PM To:

[email protected]

Cc: [email protected]

Hi Richard

Unfortunately, after speaking with my supervisor, we have determined that it would be

unfeasible to provide previously issued physical notices to your email as previously stated.

However, you can still download any electronic notices provided to you via your web

account.

Please let me know if you have any questions. Thank you for your time,

--


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Jon Johnson

Royalty Services Specialist Music Reports, Inc.

Ph: 818-558-1400 x7010

Fx: 818-558-3474

[email protected] http://www.musicreports.com (Attached as Exhibit E)

124. Defendant fabricated the NOIs in order to cover defendants’ infringements.

125. The first NOI bearing number 515947 dated May 31, 2012 had a purported

release date to Defendant ADS’ Locker Product of June 19, 2012 (the “May 31, 2012 NOI”).

Attached as Exhibit F.

126. The May 31, 2012 NOI covered one track from one release, and was altered to

include thirteen track from YESH releases made available well after the NOI date:

2 tracks from The Best Of The American Dollar Volume 2 AmbientDecember 20, 2012,

4 tracks from Music For Focus And Creativity December 10,

2013,

1 track from Music for Sleep, and

6 tracks from the Five Album Set released May 5, 2014.

127. Obviously, a 2012 NOI cannot have 2014 recordings unless it was altered.

128. The second NOI purportedly served on April 24, 2013 bearing number 547298

appears to be the “go-to” NOI for fraud (the “April 24, 2013 NOI”). This NOI has a release

date to Defendant ADS’s Locker Product of May 6, 2013.

129.

The April 24, 2013 NOI contains the following tracks from releases made well

after the NOI date. In fact, this NOI contains 46 tracks from a release made almost a year after

its service date. Attached as Exhibit G.

22 tracks from Music for Focus and Creativity released


mailto:[email protected]://www.musicreports.com/http://www.musicreports.com/mailto:[email protected]


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December 10, 2014.

2 tracks from Music for sleep released December 12, 2013.


130. Amazingly, Defendant began distributing the above tracks on May 6, 2013, well

before Plaintiff YESH recorded them.

131. The third NOI is dated May 21, 2013 and bears number 551475. The NOI claims

a date of first distribution to Defendant’s Locker Product of June 3, 2013. See Exhibit H.

Twenty four tracks on the May 21, 2013 NOI were on Defendant’s system from 2012. The

remaining tracks were released well after the NOI service date, to wit:

11 tracks from Music for Focus and Creativity released on December10, 2013.


132. The fourth NOI bearing No. 554858 is dated July 9, 2013 with a purported

release date to Defendant ADS’s Locker Product of July 16, 2013 (the “July 9, 2013 NOI”).

Attached as Exhibit I.

133. The July 9, 2013 NOI included:

1 track from The Best Of The American Dollar Volume 2 /December

20, 2012,

3 tracks from Music For Focus And Creativity December 10, 2013,

1 track from Music For Sleep released on December 12, 2013, and

1 track from Five Album Set + Eps, released on May 5, 2014.

134. All of these releases, of course, were after the purported date the NOI was served.

135. The fifth NOI, bearing No. 569297 is dated October 10, 2013 with a purported

release date onto defendants Locker Product of October 18, 2013 (the “October 10, 2013

NOI”). Attached as Exhibit J.

136. The October 10, 2013 NOI covers three songs, each of which appeared on

numerous releases. The NOI lists one of the releases in which each of the songs appears is the



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May 5, 2014 release titled “Five Album Set + Bonus Eps”.

137. This release, of course, was seven months after the purported date the NOI was

served.

138. The October 10, 2013 NOI was also altered to included one track Plaintiff

EMANUELE for the band Zero Bedroom Apartment, for the album “Filmmuzik 2” which was

released to Defendant in October 2014.

139. All of the tracks from Filmmuzik 2, however, were reproduced by defendant

ADS and made available on its system.

140.

The sixth purported NOI bearing No. 570843 is dated October 21, 2013 has a

purported release date to d efendant ADS’ Locker Product of October 27, 2013 (the “October

21, 2013 NOI”.

141. The October 21, 2013 NOI covered five songs, each of which was re-released 2-

3 times. (Attached as Exhibit K.) The NOI was altered to include each song on the following

releases:

3 tracks from the December 10, 2013 release titled “ Music For Focus And Creativity”,

3 tracks from the December 12, 2013 release titled “ Music For Sleep”,

and

1 tracks from the May 5, 2014 release titled “Five Album Set + Bonus Eps”.

142. All of these release, of course, were after the purported date the NOI was served.

143. All of the tracks on the NOI were available on defendants’ locker product years

before the NOI date.

144. The seventh NOI bearing No. 585746 is dated April 7, 2014 with a purported

release date to Defendant ADS’s Locker Product of April 7, 2014 (the “April 7, 2014 NOI”)

appears to be unaltered.



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145. The April 7, 2014 NOI covered four tracks which were re-released an average of

2.5 times in 5 groupings. The April 7, 2014 NOI has not been altered, to the best of plaintiff’s

knowledge. This was the very NOI which was the subject of Rich Cupolo’s conversation with

Music Reports. Defendant knew Cupolo had the physical copy of the original.

146. Every track, however, covered by the April 7, 2014 NOI had been used in

Defendant’s Locker Product for at least one year prior to the service date. Accordingly, the NOI

is facially invalid.

Post Music Report Launch NOIs

147.

Defendant ADS purportedly served three NOIs after the Amazon Music product

was launched in June 2014. Attached as Exhibit L.

148. The NOIs covered thirteen tracks in total. Defendant, however, had been

streaming all of plaintiffs’ recordings for six months by the time the first NOI covering one

track arrived.

149. The language of the NOIs, however, remained unchanged, and limited the use to

services associated with a locker.

150. The first NOI was No. 611933 dated January 7, 2015 purportedly released one

track to Defendant’s Locker Product on January 7, 2015 (the “January 7, 2015 NOI”).

151. The track, Intro, was on Defendants’ streaming service for six months prior to

the NOI. Moreover, the subject track was on defendants’ locker product for two years prior to

the NOI, and had been actively streamed throughout that period.

152. The Second post-Amazon Music launch was No. 671937 dated November 2,

2015 with a purported release date to Defendant ADS’s Locker Product of November 2, 2015

(the “November 2, 2015 NOI”).



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153. The November 2, 2015 NOI covered one track which was released twice. The

track, Intro, was on Defendant ADS’s system for two years prior to the NOI service date.

Consequently, the November 2, 2015 NOI is facially invalid.

154. The final NOI was never served. Plaintiffs discovered the NOI while reviewing

the electronic records

155. Defendants purportedly released the NOI Number 676251 dated November 16,

2015 with a purported released to Defendant ADS’ Locker Product on November 16, 2015 (the

“November 16, 2015 NOI”).

156.

The November 16, 2015 NOI covered sixteen tracks. Twelve of those tracks are

on plaintiff’s latest release which came out on December 10, 2015, and was released to

Defendant on November 10, 2015.

157. The remaining four tracks on the November 16, 2015 NOI were on Defendant ADS’s

system for two years prior to the service of the NOI, and were being streamed for two years as well.

Accordingly the NOI is invalid as to that track.

158.

Defendant directed its agent, Music Reports, to change the electronically stored

NOIs to ensure future copyright royalty statements show ever track is covered by an NOI.

159. Worse, all NOIs are invalid because they pertain to Defendant’s Music Locker

product, not to Prime Music. Defendant has attempted to take invalid NOIs and materially alter

them to cover all of the tracks. There is no reason for recordings from a 2014 to be on a 2012

NOI. Defendant fabricated the NOIs, and has infringed Plaintiff YESH’s exclusive rights under the Act

to 116 Registrations.

160. It is impossible to tell which tracks, other than later releases, were added to the

NOIs. Based on Defendant ADS’ behavior, it is safe to assume the majority of tracks.

161. All of Plaintiff YESH’ music was up on ADS’ system by December 2012 (with



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the exception of the later releases.) All of the 2013-2014 NOIs are invalid as they claim to

compel a license for those tracks.

162. All of Plaintiff Emanuele’s tracks were on Defendant’s system with no NOI.

163. This level of deceit warrants an award to Plaintiffs’ and the Putative Class at the

very top of the range.

DEFENDANTS WERE WELL AWARE OF THEIR OBLIGATIONS

164. Defendants were well aware of their legal obligation to serve NOIs prior to

distributing Plaintiffs’ and the Putative Class’ copyrighted recording.

165. Defendants’ public statement to the CRB in 2014 stated:

“Section 115 requires services to clear the underlying publishing rights

for newly released sound recordings before distributing them, but such atask is nearly impossible in many cases...”

*** *** ***

the specter of statutory damages for failing to timely send NOIs under theSection 115 licensing process exposes digital music service providers tolevels of risk that are not equitable under the circumstances.

See Exhibit M.

166. Defendant AMAZON negotiated and signed off on the CRB’s 2008 Adjustment

to Mechanical Royalties. Defendant won incredible concessions in that negotiation, including

the ability to serve the US Copyright Office if the artist could not be found.

167. Defendants knew their legal obligations but elected to break the law rather than

comply.

168. This type of behavior, predatory in nature, can only be addressed by an award at

the highest point of the statutory scale.

169. Defendants also knew their agent MusicReports cannot, and certainly does not,



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serve NOIs for every recording on the Amazon Music Service.

170. MusicReports admitted that fact to the Copyright Royalty board. In an official

statement to the CRB dated May 23, 2014, MusicReports stated:

“Regarding the licensing coverage of the Section 115 license: it is true, ascritics have pointed out, that it is not possible to license all of the tens ofmillions of musical works in the typical digital music service catalogusing the Section 115 statutory license.”

171. Defendants knew exactly what was going on, but made a tactical business

decision. This is not the first time a class-action against AMAZON has been brought to remedy

the same behavior. See Blagman v. Apple, Inc. et al, No. 1:2012cv05453 (S.D.N.Y. 2012). This

is a clear indication of intent on the part of defendants.

ADS MIS-CALCULATED THE ALL-IN ROYALTY POOL

172. Defendant was legally obligated to provide:

“a detailed and step-by-step accounting of the calculation of royalties under§385.12, §385.22, or other provisions of part 385 of this title as applicable,sufficient to allow the copyright owner to assess the manner in which thelicensee determined the royalty owed and the accuracy of the royalty

calculations, including but not limited to the following information:

(i) The number of plays, constructive plays, or other payable units, ofthe relevant sound recording for the month covered by theMonthly Statement for the relevant offering.

(ii) The total royalty payable for the month for the item described bythe set of information called for, and broken down as required, by paragraph (c)(3) of this section (i.e., the per-work royaltyallocation for the relevant sound recording and offering).

(iii) The phonorecord identification information required by paragraph(c)(3) of this section.

173. Defendant ADS violated the Act and supporting regulations each month

plaintiffs and the Putative Class received a royalty calculation report from Defendants’ agent

MusicReports.

174. The MusicReports royalty calculation report consists of three aspects, the first



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was recently a bogus certification from a purportedly independent small accounting firm Baker

Tilly Virchow Krause LLP.

175. The Baker Tilly certification is, however, just a rouse. Amazon is responsible

for all assertions, Baker Tilly just checks their internal controls.

176. It must be noted that Baker Tilly prepared the repots for Amazon ADS, but

relied on all of the assertions from ADS parent company.

177. The Baker Tilly certification makes it appear as if the royalty reports are valid

and certified is an independent auditor. Again, Baker Tilly only certifies the calculation. See

Exhibit N.

178. The second page consists of the royalty pool and per stream calculation page.

See Exhibit O.

179. The third page is the detail report which highlights the fraud perpetuated by the

Defendant each and every month. See Exhibit P.

180. Plaintiffs have not received a detailed report since 2014, or royalty payment.

181. Defendant ADS has failed to provide information sufficient to determine if the

all-in royalty pool calculation is accurate, and this is impermissible under the Statute and

enacting regulations.

182. Defendant ADS claims it is a “Music Bundle” for purposes calculating the all-in

royalty pool which would be the greater of the statutory per user rate of $.25 or 11.35% of

revenue (Defendant ADS, however, claims no revenue.)

183. Defendant ADS is not, however, a music bundle. Through the Amazon Prime

product, the user cannot access multiple music services. Defendant ADS was obligated to use

the $.50 per user rate.



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184. Defendant can also calculate the pool as 21% of the service payments to record

companies if licenses are not pass through, or 17.36% of the service payments to record

companies if songs are pass through.

185. The all-in royalty pool minus the payments paid for performance royalties equals

the payable royalty pool. The payable royalty pool divided by the total streams equals the per-

stream allocation rate.

186. The per-stream allocation rate is how most artists survive. To allow defendants

to artificially deflate their per-stream allocation is worse than theft.

187.

If every company followed the defendants in its bogus calculations, many, most

of the entertainers, who rely on this revenue would no longer be able to make music.

188. Examining a typical example of the calculation, it is readily apparent Defendant

ADS has woefully failed to provide the statutorily required information sufficient to establish its

calculation of the all-in royalty pool.

Service Revenue $0.00

Service Revenue subject toPromotional Royalty Rate

N/A

Service Revenue subject to All-InRoyalty Calculation

A – B $0.00

Number of Subscribers 4,435,288

Label Payments, where label pays publishing

$0.00

Label Payments, where service pays publishing Performance Royalties

$4,664,503.00

Performance Royalties $405,629.25

Applicable Service Revenue Rate 10.50%All-In Royalty, by Revenue C * H $0.00

Applicable Per Subscriber Rate N/A

All-In Royalty, by SubscriberCalculation

D * J N/A

Applicable Label Rate, wherelabel pays publishing

17.36%



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Applicable Label Rate, whereservice pays publishing

21.00%

All-In Royalty, by Label PaymentCalculation

(E * L) + (F *M)

$979,545.63

Applicable Service Type

Minimum Lesser of K or N

$979,545.63

All-In Royalty Greater of I or $979,545.63

Payable Pool, by All-In Royalty,less Performance Royalties

P – G $573,916.38

Subscriber Based Royalty Floor 25.00%

Payable Pool, by SubscriberBased Royalty Floor

D * R $1,108,822.00

Payable Royalty Pool Greater of Q $1,108,822.00

Total Number of Plays, AllMusical Works

961,241,639.6

Number of Plays subject toPromotional Royalty Rate

0.0

Number of Plays subject toeffective Per Play Rate

U – V 961,241,639.6

Promotional Royalty Rate $0.00

155. It is simply impossible for any individual receiving a royalty calculation report

from Defendant to ascertain whether Defendant ADS’ calculations are correct. Every calculation

Defendant made is predicated on the amount it pays for the sound recording royalties (Line F on

the chart).

156. Defendant ADS offers no information about how it arrived at this number, and

no way to verify if it is correct.

157. Plaintiff contacted TuneCore, the PRO that issues the sound recording royalties,

and requested back up information on how Defendant calculated the sound-recording pool.

158. TuneCore informed Plaintiffs that this information cannot be provided, and is

confidential.

159. So Defendant ADS bases every calculation concerning publishing royalties on a



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168. Splitting the increase between video and music, the actual revenue generated, and

all-in royalty pool would be:

65,000,0001 X 10 = 54,166,666 X 11.35% = $6,147,916

169. The payable royalty pool is the all-in royalty pool minus the performance

royalties: $6,147,916 - $405,629.25 = $5,742,286.75

170. The per-stream allocation is calculated equals .006.

171. Defendant AMAZON reduced its lawful payable royalty pool from

$5,742,286.75 to $1,108,822.00.

172. Defendant also availed itself of the incorrect per user statutory rate.

173. All of the forgoing damaged the plaintiffs and the Putative Class.

AMAZON MIS-REPORTED STREAM DATA

174.

Defendant ADS goes to amazing lengths to avoid paying royalties.

175. Defendant ADS made Plaintiff YESH’s new single Mosaic and “album” Across

the Oceans available for streaming on November 10, 2015 and December 10, 2015 respectively.

176. In the four months since the release of the single and ten other tracks they have

cumulatively been streamed over 1,000,000 times on other digital platforms.

177. Defendant ADS has failed to report a single track was streamed on its Amazon

Music service in five months.

178. This is an mpossibility because plaintiff’s counsel has streamed the eleven

recordings multiple times on Amazon Music.



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179. A comparison of the information supplied by Defendant ADS to the two PROs

yields a dramatic difference in what ADS reports. See Exhibit Q.

Date Sound Record Streams(TuneCore)

Publishing Streams(MusicReport)

July 2015 13,383 6,371

August 2015 19,302 14,305

September 2015 19,296 15,736.2

October 2015 27,159 22,128

November 2015 0 10,693.60

December 2015 0 7,995

January 2016 0 2,714.60

180. The disparity in the numbers is from the systematic manipulation of track

information by MusicReports to eliminate those tracks related to recordings which no NOI was

served.

181. The numbers in the chart should be identical.

182. For example, in August 2015, TuneCore reported 7 entries for the song Age of

Wonder totaling 349 streams. Music Reports reported 156.6 streams.

183.

MusicReports is Defendant ADS’s agent for NOI service. In addition to adding

new tracks, to old NOIs, MusicReports simply deleted the data from tracks not covered by an

NOI. It also attempted, at times, to add the stream information from an uncovered song to one

that was.



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184. Staying with August 2016, TuneCore reported 61 additional songs that were

streamed that MusicReports did not report. This means either Amazon directly, or Music Reports

on its behalf, deleted the stream data from 25% of the streams.

185. In a transparent attempt to limit its liability, Defendant ADS, removed Plaintiff’s

tracks from its library (with the exception of the latest group) at the apex of success for Plaintiff

YESH’s tracks. The removal of the tracks coincides with the wave of publicity over Plaintiff’s

case against Tidal. A guilty conscience is a terrible thing.

AMAZON REMOVED RUN-TIME INORMATION

186.

The run-time is the length of time it takes to play a given recording.

187. Run times must be submitted with the recordings to AMAZON.

188. Every sound recording on Prime Music shows the run-time.

189. Mysteriously, defendant classifies the run times for over 30% of the recordings on

d efendant ADS’ system as “unknown”.

190. Taking Exhibit P as an example, the first of many glaring errors is the bogus

“unknown” playing time appears in 58 of the 263 entries.

191. Defendant simply ignores the information its own system in order to reduce the

royalties paid to plaintiffs and the Putative Class.

192. The run-time is important because, by statute, streaming rates increase for all

recordings over 5:00 minutes as follows:

d) Overtime adjustment. For purposes of the calculations in step 4 in paragraph (b)(4) of this section only, for sound recordings of musicalworks with a playing time of over 5 minutes, adjust the number of plays asfollows:

5:01 to 6:00 minutes — Each play = 1.2 plays




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193. Plaintiff has eighteen recordings over 5:01 seconds (qualifying each one of those

eighteen tracks to the bonuses above).

194. It is readily apparent that Defendant systematically deletes, alters, and marks as

“unknown” a large percentage of Plaintiffs recordings over 5:01 minutes.

195. Defendant is well-aware that every recording on its Music System shows the run

time.

196. Plaintiffs and the Putative Class have been damaged by Defendant ADS’

manipulation of the run-time data in an amount to be proved at trial.

Defendant Impermissibly Provided Six Months Free Trial for Students

197. Defendant AMAZON offers six months of free service to anyone with an “.edu”

email.

198. After the six months, the service is half of the normal price.

199. This is a per se violation of 37 CFR 385.14(b) (3) which provides: “The f ree trial

period does not exceed 30 consecutive days per subscriber per two-year period.

200. Plaintiffs and the Putative Class have been damaged by this in an amount to be

proven at trial.

FIRST CLAIM FOR RELIEF

COPYRIGHT INFRINGEMENT

201. Plaintiffs and the Putative Class incorporate the allegations contained in the

preceding paragraphs as if set forth at length here.



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202. Defendants have, without a “mechanical” license under Section 115 from

plaintiffs or the Putative Class, reproduced and publicly performed and/or publicly distributed

plaintiffs’ Copyrighted Compositions through its interactive web-based subscription streaming

service.

203. It cannot be disputed that the plaintiffs and the Putative Class have valid,

registered copyrights, and that defendants have reproduced and offered the Copyrighted

Compositions for streaming, including permanent and temporary digital download, without a

license, thus infringing plaintiffs’ and the Putative Class’ rights under Section 115 of the

Copyright Act. Irreparable injury is presumed here as plaintiffs and the Putative Class have

established a prima facie case of copyright infringement.

204. Even after defendants were put on notice in a previous action in this Court just

three years ago, defendant elected to continue to reproduce and publicly perform and/or publicly

distribute plaintiffs’ Copyrighted Compositions through its subscription service.

205. The making or the distribution, or both, of all Copyrighted Compositions without

the payment of royalties is actionable as acts of infringement under section 501 and fully subject

to the remedies provided by sections 502 through 506 and 509.

206. Each time plaintiffs and Putative Class were deprived of their statutory royalty

entitlement, e.g., by non-payment of royalties, a distinct harm was done to Plaintiffs’ and the

Putative Class’ property interest.

207.

Defendants’ predatory conduct was clearly intentional within the meaning of

504(c)(2) for purposes of enhancing statutory damages. Defendants knew that their actions

constituted an infringement each time it failed to serve an NOI or make a royalty payment.

208. Defendants’ knowledge may also be inferred from its conduct including the



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reckless disregard of the Plaintiffs’ and Putative Class’ rights (rather than actual knowledge of

infringement), which suffices to warrant award of the enhanced damages.

209. Every time defendants materially altered documents to cover their illegal

activity, they demonstrated the clear knowledge of the import of their acts.

210. As a direct and proximate result of each of the Defendants’ infringement,

plaintiffs and the Putative Class have incurred damages, as described more fully above. Pursuant

to 37 C.F.R. § 385, plaintiffs and the Putative Class are entitled to a “per stream” statutory

royalty rate of $.01 for interactive web-based streaming services like Defendant.

211.

Plaintiffs and the Putative Class may also elect to recover statutory damages

pursuant to 17 U.S.C. § 504(c)(2) for willful infringement of up to $150,000, but not less than

$30,000, for each infringement of each copyright registration identified in Exhibit A and those

that will be produced for the Putative Class, as available under the law.

THERE IS A TREMENDOUS D

SECOND CLAIM FOR RELIEF COPYRIGHT INFRINGEMENT

212. Plaintiffs incorporate the allegations contained in the preceding paragraphs as if

set forth at length here.

213. Alternatively, while plaintiff YESH does not release traditional albums, in the

event this Honorable Court finds it does, Defendants have intentionally infringed the Copyright

Registrations identified in Exhibit B for the collections of compositions registered to plaintiffs.

214.

Defendant has, without a “mechanical” license under Section 115 from plaintiffs,

reproduced and publicly performed and/or publicly distributed plaintiffs’ Copyrighted

Compositions through its interactive web-based subscription streaming service.

215. It cannot be disputed that the plaintiffs have valid, registered copyrights, and that



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defendant has reproduced and offered the Copyrighted Compositions for streaming, including

permanent and temporary digital download, without a license, thus infringing plaintiffs’ rights

under Section 115 of the Copyright Act. Irreparable injury is presumed here as plaintiffs have


216. Plaintiffs may also elect to recover statutory damages pursuant to 17 U.S.C. §

504(c)(2) for willful infringement of up to $150,000, but not less than $30,000, for each

infringement of each copyright registration identified in Exhibit B, as available under the law.

SECOND CLAIM FOR RELIEF

COPYRIGHT INFRINGEMENT

217. Plaintiffs incorporate the allegations contained in the preceding paragraphs as if

set forth at length here.

218. Alternatively, while plaintiff YESH does not release traditional albums, in the

event this Honorable Court finds it does, Defendants have intentionally infringed the Copyright

Registrations identified in Exhibit B for the collections of compositions registered to plaintiffs.

219. Defendant has, without a “mechanical” license under Section 115 from

plaintiffs, reproduced and publicly performed and/or publicly distributed plaintiffs’ Copyrighted

Compositions through its interactive web-based subscription streaming service.

220. It cannot be disputed that the plaintiffs have valid, registered copyrights, and that

defendant has reproduced and offered the Copyrighted Compositions for streaming, including

permanent and temporary digital download, without a license, thus infringing plaintiffs’ rights

under Section 115 of the Copyright Act. Irreparable injury is presumed here as plaintiffs have


221. Plaintiffs may also elect to recover statutory damages pursuant to 17 U.S.C. §



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504(c)(2) for willful infringement of up to $150,000, but not less than $30,000, for each

infringement of each copyright registration identified in Exhibit B, as available under the law.

THIRD CLAIM FOR RELIEF(CONTRIBUTORY AND VICAROUS INFRINGEMENT

222. Plaintiffs and the Putative Class reallege and incorporate by reference each and

every allegation contained in the preceding paragraphs with the same force and effect as if fully

set for that length herein.

223. Defendant AMAZON had knowledge of the infringing activity, and induced,

caused or materially contributed to the infringing conduct of Defendant ADS.

224. Defendant ADS had knowledge of the infringing activity, and induced, caused

or materially contributed to the infringing conduct of MusicReports.

225. Defendant AMAZON has the right and ability to supervise the infringing

activity and also has a direct financial interest in the activity.

226. Defendant ADS has the right and ability to supervise the infringing activity and

also has a direct financial interest in the activity.

227. Plaintiffs and the Class Members have been damaged, and defendants have been

unjustly enriched, in an amount that is not as yet fully ascertained but which plaintiffs are

informed and believe is not less than $150,000 according to proof at trial.

PRAYER FORRELIEF

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

similarly situated, respectfully prays for relief against Defendant as follows:

1. Certify this matter as a class action;



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2. Enter an order appointing plaintiffs as class representative and plaintiffs’

counsel as class counsel;

3. Enter judgment in favor of plaintiffs and the Class;

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

interests of plaintiffs and the Class (17 U.S.C. § 502), including

enjoining defendant from continued copyright infringement and violations of

the relevant provisions of the Copyright Act;

5. A temporary, preliminary, and permanent injunction enjoining and

restraining AMAZON and ADS, and their respective agents, servants,

directors, officers, principals, employees, representatives, subsidiaries and

affiliates, companies, successors, assigns, and those acting in concert with

them or at their direction, from further violations.

6. Injunctive relief that requires AMAZON and ADS to pay for the services of a

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

distributed by defendants despite d efendants’ failure to first obtain a mechanical

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

defendant ADS to remove all such unlicensed tracks from its services until it

obtains proper licenses for them;

7. Restitution of Defendants’ unlawful proceeds, including Defendants’ gross profits;

8.

Award compensatory damages to plaintiffs and the Putative Class in an amount

to be ascertained at trial;

9. Award statutory damages to plaintiffs and the Putative Class according to

proof, including but not limited to all penalties authorized by the Copyright



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yesh music v. amazon - first amended complaint.pdf

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