Spotify has struck back in the class-action lawsuit launched by musician David Lowery.
The streaming service has filed a motion to strike the class allegations claiming the case is “a fatally flawed candidate for class treatment” – with the familiar spaghetti junction of music-industry royalties its chief argument.
“There is simply no way to determine who qualifies as a class member without first determining the thorny and often intractable threshold questions of (1) who owns the mechanical rights to any given composition in the first place, assuming the composition itself can be identified at the outset; and (2) whether Spotify has reproduced or distributed those compositions without license or authorisation (which requires a separate set of additional inquiries),” claims Spotify’s filing.
“Making these determinations requires the sort of mini-trial on the merits that precludes feasible identification of class members.”
Spotify’s filing goes on to claim that Lowery’s lawsuit also falls down on the fact that its “common questions” will in fact “yield individualised and fact-intensive answers not just for each putative class member, but for every possible musical composition at issue” – from ownership of its mechanical rights and the validity of its copyright registration to whether and how it was reproduced and distributed by Spotify; whether any infringement was willful; and what damages are appropriate.
“For starters, Plaintiff has not identified the works that are the subject of the alleged infringement, nor has he identified a methodology for doing so,” the filing later claims
“Tellingly, he does not even offer a complete list of his own works as to which he claims infringement… More important, even if Plaintiff had identified the compositions relating to absent putative class members that he believes are relevant to this lawsuit, it is inconceivable that he could generate accurate ownership information for each composition.”
It all boils down to the lack of a global repertoire database – “widely recognised as an intractable problem in the music industry” – although music lawyer Chris Castle has already criticised Spotify’s line of attack on this score, citing Spotify’s previous claim that it is setting aside royalties for songs that it streams in the US for which the rightsholders are “not immediately clear”.
“So which is it – Spotify knows which songs are not licensed and are accruing royalties at some theoretical rate (to the tune of millions of dollars according to press reports), or song ownership is such a mystery that such an accrual is not capable of mortal knowledge?” asked Castle.
“Don’t you think the Court might want to know about that accrual part? And learn it from Spotify’s lawyers?… Now that Spotify has been called out, rather than publishing a list of these songs, Spotify tries to hide behind the lack of some unicorn database to excuse their bad behaviour. A unicorn database that has never existed.”
The case continues.
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