Yesh Music, LLC et al v. Amazon.com, Inc. et al
Filing
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MEMORANDUM DECISION AND ORDER dated 6/16/17 that Plaintiffs motion for reconsideration or, in the alternative, for leave to file an interlocutory appeal, is denied. ( Ordered by Judge Brian M. Cogan on 6/16/2017 ) (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
YESH MUSIC, LLC and JOHN K.
:
EMANUELE, individually and on behalf of
:
all other similarly situated copyright holders, : MEMORANDUM DECISION &
: ORDER
Plaintiffs,
:
: 16 Civ. 1406 (BMC)
- against :
:
AMAZON.COM, INC. and AMAZON
:
DIGITAL SERVICES INC.,
:
:
Defendants.
:
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COGAN, District Judge.
By Memorandum Decision and Order dated April 8, 2017 (the “Order”), I granted in part,
and denied in part, defendants Amazon.com, Inc. and Amazon Digital Service, Inc.’s (together
“Amazon” or “defendant”) motion for partial summary, finding that Amazon has valid
compulsory licenses to plaintiffs’ songs, except that there is a genuine factual dispute as to
whether the ambient versions of plaintiffs’ songs are covered by those compulsory licenses.
Presently before the Court is plaintiffs’ motion for reconsideration of the Order pursuant to
Federal Rule of Civil Procedure 60(b), or, in the alternative, for certification of the Order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Familiarity with the facts and the Order is
assumed.
Plaintiffs’ motion for reconsideration is entirely improper. Plaintiffs have submitted
three declarations 1 and 15 attached exhibits containing new evidence, often without an
1
Without seeking permission from the Court as is required under Local Rule 6.3, plaintiffs filed the declaration of
Richard Cupolo as an attachment to their memorandum in support of their motion for reconsideration. Ten days
after filing their motion, plaintiffs then sought leave to file two additional declarations and three additional exhibits,
claiming that since they had filed their motion, they discovered new evidence. Plaintiffs’ untimely motion to file
explanation as to why this evidence could not have been discovered earlier, and they have used
their motion as an opportunity to relitigate issues decided in the Order by asserting a multitude of
new arguments never raised in the two prior rounds of briefing. To make matters worse, much
of plaintiffs’ memoranda in support of their motion is unclear to the point of being unintelligible.
Plaintiffs have sufficiently confused, or perhaps attempted to deceive, defendants and this
Court by: (1) using terms that have never been used in this case previously, without providing a
definition or explanation as to what they are referring; (2) referring to blurry screen shots of
websites that are impossible to read; (3) referring to exhibits that do not exist; (4) manipulating a
quotation from the TuneCore agreement Terms and Conditions so that the version in plaintiffs’
memorandum is materially misleading; and (5) claiming that Andrew Migdail previously
“testified” that he used “Diamond Marketing Service” to effect service of the NOIs and
“admitted” that Diamond Marketing Service is a marketing company that focuses on healthcare,
when there is no mention of Diamond Marketing Service anywhere in Migdail’s declaration. I
cannot tell whether this is a result of a pattern and practice of sloppy work, or an intentional
attempt to deceive the Court, but, regardless of the cause, plaintiffs’ counsel is warned that any
further instances of this conduct will expose it to sanctions for engaging in vexatious and
frivolous litigation.
The Court has spent an exorbitant amount of time attempting to decipher plaintiffs’
arguments. Plaintiffs’ motion is frivolous and it is denied for the following reasons. To the
extent any of plaintiffs’ arguments are not specifically addressed below, they are rejected as
two additional declarations, one by Richard Cupolo and one by plaintiffs’ counsel Richard Garbarini, is denied.
Both the Garbarini affidavit and the Cupolo affidavit violate the Federal Rules of Evidence and this Court’s
Individual Practice Rules concerning the use of affidavits because Cupolo and Garbarini each engage in
impermissible legal argument. Moreover, even if I considered these declarations, neither would warrant granting
plaintiffs’ motion. The Cupolo affidavit includes numerous new factual allegations that are irrelevant to the issues
decided in the Order. The Garbarini affidavit summarizes a document attached to the Migdail Declaration that the
Court previously considered in issuing the Order. The Court need not give any further attention to these
declarations.
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incoherent.
DISCUSSION
I.
Motion for Reconsideration
Plaintiffs’ motion for reconsideration is governed by Federal Rule of Civil Procedure
60(b) and Local Rule 6.3. Under Local Rule 6.3, the party moving for reconsideration must file
“a memorandum setting forth concisely the matters or controlling decisions which counsel
believes the Court has overlooked.” A motion for reconsideration is not a proper tool for a party
dissatisfied with the court’s ruling to merely relitigate issues previously determined by the court
or reargue the same points that were previously raised and rejected. See Zerman v. Jacobs, 751
F.2d 82, 85 (2d Cir. 1985); Sass v. MTA Bus Co., 6 F. Supp. 3d 238, 244 (E.D.N.Y. 2014) (A
reconsideration motion “is neither an occasion for repeating old arguments previously rejected
nor an opportunity for making new arguments that could have previously been made.”) (internal
quotation marks omitted); Range Rd. Music v. Music Sales Corp., 90 F. Supp. 2d 390, 392
(S.D.N.Y. 2000) (“The . . . limitation on motions for reconsideration is to ensure finality and to
prevent the practice of a losing party examining a decision and then plugging the gaps of the lost
motion with additional matters.”). Indeed, a motion for reconsideration should be construed
narrowly so as to not be “used as a substitute for appealing a final judgment.” Perez v. United
States, 378 F. Supp. 2d 150, 155 (E.D.N.Y. 2005) (internal quotation marks omitted).
On a motion for reconsideration, “‘a party may not advance new facts, issues, or
arguments not previously presented to the Court.’” Nat’l Union Fire Ins. Co. v. Stroh Cos, 265
F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St. Martin’s Press, No. 97 Civ. 690, 2000 WL
98057, at *1 (S.D.N.Y. Jan. 18, 2000)). Therefore, the motion “will generally be denied unless
the moving party can point to controlling decisions or data that the court overlooked – matters, in
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other words, that might reasonably be expected to alter the conclusion reached by the court.”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 256-57 (2d Cir. 1995).
A. The Climan Declaration
In the Order, I found that Amazon had sufficiently established that none of plaintiffs’
songs were impermissibly streamed on any of its four online music services because: (1) the
Amazon MP3 Store and non-premium music locker do not require Amazon to secure mechanical
licenses; and (2) the Climan declaration demonstrated that none of plaintiffs’ songs were
streamed on Amazon Cloud Player Premium or Amazon Prime Music prior to the service of an
NOI. Plaintiffs propound numerous arguments as to why this finding was incorrect.
First, plaintiffs argue that the Court overlooked plaintiff Yesh’s “Purchased Content
Locker Monthly Reports,” or the “PCL streams,” which, according to plaintiffs, demonstrate that
the Climan declaration is inaccurate and there is a genuine factual dispute as to whether all
streams of plaintiffs’ songs prior to the service of an NOI were via the Amazon MP3 Store and
non-premium music locker. I do not know what plaintiffs mean by “PCL.” Prior to their motion
for reconsideration, plaintiffs never used the term “PCL streams” or “PCL.” In fact, plaintiffs
previously submitted these same reports on the motion for summary judgment, but they never
identified them as “PCL” streaming reports.
In their reply memorandum, perhaps in acknowledgment of Amazon’s point in its
memorandum in opposition to the motion that it also does not know what plaintiffs mean by
“PCL,” plaintiffs no longer use that term and instead refer to the “PCL” streams as “nonpremium locker” streams. I assume that by “non-premium locker,” plaintiffs are referring to the
“non-premium music locker,” which is one of the four Amazon online music services that were
discussed at length in the Order and the subject of the Climan declaration. I will thus construe
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all references to “PCL” to mean the “non-premium music locker.”
As I explained in the Order, the Climan declaration established that all streams of
plaintiffs’ songs prior to the service of an NOI occurred via the non-premium music locker or the
Amazon MP3 Store. Plaintiffs now seem to be arguing that the monthly streaming reports Yesh
received for Amazon’s use of its songs on the non-premium music locker demonstrate that the
Climan declaration is false because they prove that eight of plaintiffs’ songs were streamed
significantly fewer times on the non-premium music locker than the Climan declaration
represented. But the non-premium music locker streaming reports – the only evidence plaintiffs
identify as supporting this argument – do not even mention any of the eight songs for which
plaintiffs claim the Climan declaration inaccurately reported streams. Of course the number of
streams identified on the monthly reports plaintiffs have submitted do not equal the number of
streams identified in the Climan declaration – the reports relate to completely different songs.
The non-premium music locker streaming reports do not undermine the Climan declaration, as
plaintiffs argue; they simply demonstrate the incoherence of plaintiffs’ arguments.
Relatedly, plaintiffs argue that the Court overlooked that the chart attached to the Climan
declaration, which shows the number of streams of plaintiffs’ songs on Amazon’s various online
music services, does not contain a column specifically identifying the number of streams on the
non-premium music locker. I reject plaintiffs claim that this was a “trick” used to deceive the
Court. The chart clearly identifies that there were no streams via the Cloud Player Premium and
Amazon Prime Music, and that the combined number of plays and downloads that Amazon
reported to TuneCore equal the number of streams identified on the streaming reports produced
by plaintiffs. As I explained in the Order, plaintiffs have identified nothing that refutes the
Climan declaration or even calls its accuracy into question. Plaintiffs’ claim that the Climan
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declaration is unreliable because the chart should have had a column specifically titled “nonpremium music locker” is a non-sequitur.
Finally, plaintiffs argue that the Court made impermissible “credibility determinations”
because it placed undue weight on the Climan declaration submitted by defendant and did not
give the proper weight to the Cupolo declaration submitted by plaintiffs. Plaintiffs have
misunderstood the Order. I did not reject the Cupolo declaration because I found him to be
incredible. In fact, I relied on a number of Cupolo’s averments in denying Amazon’s motion for
summary judgment on plaintiffs’ claims regarding their ambient songs. I did, however, reject
portions of the Cupolo declaration where he made unsubstantiated allegations that were not
based on his personal knowledge, such as his averment that “there is no such thing as a ‘personal
locker.’ A user either joins the free locker service or the premium locker service. There is no
specific designated place on a server. Rather, all user’s songs are thrown into one digital library .
...”
As I explained in the Order, “[w]here a party relies on affidavits to establish facts, the
statements “must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant . . . is competent to testify on the matters stated.”). Fed. R.
Civ. P. 56(c)(4). Cupolo has no personal knowledge as to the internal operations and methods of
Amazon’s online music services, and therefore his declaration does not create a factual dispute
or undermine the accuracy of the Climan declaration.
B. “The Non-Premium Music Locker
In the Order, I held that the non-premium music locker does not require Amazon to
secure a compulsory license because there is no distribution to the “public.” There is no
distribution to the “public” because users are only accessing songs that they had previously
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owned and themselves uploaded to their personal lockers. Plaintiffs claim that they have
discovered new evidence that demonstrates that the “PCL [the non-premium music locker]
service has streamed non-purchased content.” Again, their argument is far from clear, but it
seems that plaintiffs are claiming that Amazon has misrepresented how the non-premium music
locker operates, and that plaintiffs have discovered “new” evidence that it is not limited to songs
that users already own.
The first “new” piece of evidence that plaintiffs identify is the Music Reports’ monthly
streaming reports that plaintiffs previously submitted in opposition to defendants’ motion for
summary judgment. Although the evidence is clearly not new, plaintiffs do use it to raise a new
argument that they could have raised before. They claim that the non-premium music locker
must permit users to stream songs that they do not own and did not upload themselves. Plaintiffs
draw this conclusion because every Music Reports monthly report includes a designation for the
“total content uploads weighted,” which the report defines as “[r]epresent[ing] total nonpurchased content uploaded multiplied by Licensor’s ownership share of each song.” (emphasis
added).
If the reports for the non-premium music locker actually contained the above statement, I
may have agreed with plaintiffs that they raise a factual dispute as to whether the non-premium
music locker is actually limited to content users already own. But they do not. Plaintiffs made
this argument up out of whole cloth. The monthly reports that plaintiffs identify as containing
this statement do not regard the non-premium music locker at all. As Amazon points out in its
memorandum in opposition to plaintiffs’ motion, the monthly reports clearly indicate that the
streams reported are for use of plaintiffs’ songs on the Amazon Cloud Player, a service which
Amazon admits requires a compulsory license. In fact, each report even explains that it is a
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“Monthly Statement of Account Under Compulsory License for Making and Distributing
Phonorecords.”
The second new piece of evidence that plaintiffs claim supports that Amazon
misrepresented the non-premium locker’s function is a “pop-up message” that first appeared on
Music Reports’ licensing webpage circa April 19, 2017. The only version of this “pop up
message” that plaintiffs provide is a blurry screen-shot inserted in its memorandum that is
illegible. However, in its memorandum in opposition, Amazon has provided the Court with the
text of the pop-up message, which reads: “Please select a date below to download Monthly
Statement of Account for all Section 115-licensed service provides for the selected date. To
download statements issued under a voluntary license, please go to the ‘My Direct License
Statements’ tab on the left side of the screen.”
Plaintiffs fail to explain why they believe this statement supports their argument. There
is no dispute that Music Reports issues monthly reports for various online music services, some
of which operate pursuant to a compulsory license and some of which operate pursuant to a
voluntary license. This statement does not undermine the Climan declaration nor any ruling in
the Order.
C. The Amazon MP3 Store
In the Order, I held that Amazon did not need to secure a compulsory license to offer
plaintiffs’ songs on the Amazon MP3 Store because plaintiffs, through their agreements with
TuneCore, granted Amazon a voluntary mechanical license for this use. On their motion for
reconsideration, plaintiffs argue that this finding was incorrect because provision 4(b) of the
Terms and Conditions of the TuneCore agreement and the general practice in the music industry
both demonstrate that plaintiffs only granted Amazon a voluntary license to their sound
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recordings, not their musical works.
In their memorandum in support of their motion, plaintiffs quote provision 4(b) of the
Terms and Conditions as follows: “Company [TuneCore] customarily requires Consumer Stores
to secure and pay for music publishing licenses 2 . . . . ” This is an incomplete and misleading
quotation. Provision 4(b) actually states that: “Outside of the United States, Company
customarily requires Consumer Stores to secure and pay for music publishing license.”
(emphasis added). Although plaintiffs’ misrepresentation makes it seem that provision 4(b)
supports their argument, it actually undermines it because it further demonstrates that, unlike
online music providers that use plaintiffs’ songs outside of the United States, Amazon was not
required to secure a compulsory mechanical license to offer plaintiffs’ songs on the Amazon
MP3 Store.
Plaintiffs also claim that the Court failed to consider that “in the music industry, every
aggregator like [TuneCore], . . . has numerous divisions; [sic] each of which function
independently, and are responsible for completely different licensing responsibilities” and
because plaintiffs’ agreement is with TuneCore’s Distribution Division, which deals exclusively
with licensing sound recordings, the agreement could not have granted Amazon a mechanical
license. The only evidence plaintiffs had submitted in opposition to the summary judgment
motion in support of this contention was the declaration of Richard Cupolo, in which he avers
that, “the separation of the sound recording and publishing rights is the norm in the industry” and
Yesh never signed up for “TuneCore Publishing . . . [which] handles . . . publishing rights.”
To bolster this argument, plaintiffs now submit various blurry screenshots of TuneCore’s
website, TuneCore’s answers to “Frequently Asked Questions,” and another Cupolo declaration
in which he avers that “[o]nly the TuneCore Publishing Administration Division handles
2
A “music publishing license” is another name for a mechanical license.
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publishing rights a/k/a composition rights or mechanical rights.” Even if this evidence was
sufficient to prove a general practice of the entire music industry – which it certainly is not – it
would not have any impact on my findings. As I explained in the Order, because the Terms and
Conditions of the TuneCore agreements unambiguously provide that Amazon was not required
to secure a compulsory mechanical license to offer plaintiffs’ songs on the Amazon MP3 Store,
plaintiffs cannot use extrinsic evidence to prove a contradictory meaning. See JA Apparel Corp.
v. Abboud, 568 F.3d 390, 397 (2d Cir. 2009); Int’l Klafter Co., Inc. v. Cont’l Cas. Co., Inc., 869
F.2d 96, 100 (2d Cir. 1989).
Plaintiffs next argue that the Court erred in finding that their email communications with
the TuneCore representative were impermissible parole evidence and could not be used to
ascertain the meaning of the TuneCore agreements. Plaintiffs argue that the TuneCore email is
admissible to identify the subject matter of the agreement, ascertain the meaning of contradictory
terms in the agreement 3, explain the custom and usage of the agreement in the industry, and
explain the implied terms of the agreement.
Although I found the email communications to be inadmissible parole evidence, I also
explained that even if I had considered them, they would not have affected my interpretation of
the Terms and Conditions. Thus, even if the email communications are admissible for the
reasons identified by plaintiffs on their motion for reconsideration – which they are not – they do
not warrant granting plaintiffs’ motion.
D. Valid Service of the NOIs
Finally, plaintiffs claim that the Court erred in finding that plaintiffs’ August 2014 email
to Music Reports stating that, “We [Yesh] wish for Music Reports, Inc. and any of its affiliated
3
Plaintiffs claim that the TuneCore agreement contains “directly contradicting [sic] terms in the same clause,” but
they fail to identify which terms are contradictory.
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companies to cease the issue [sic] of any and all future compulsory mechanical licensing NOI’s
[sic] on our behalf effectively immediately” was not a revocation of consent to electronic
service. Plaintiffs argue that this was incorrect because: (1) in his affidavit, Cupolo averred that
he had sent the August 2014 email intending to revoke Yesh’s consent to electronic service; and
(2) the August 2014 email complied with Music Reports’ instructions for revoking consent to
electronic service.
First, Cupolo’s subjective intentions are entirely irrelevant as to whether the language of
the August 2014 email constituted a revocation of consent. Plaintiffs’ second argument is
absurd. Music Reports’ website provides the following instructions to copyright holders on how
to revoke consent to electronic service of NOIs: “If you agree to receive NOIs electronically,
then future NOIs will be posted to your web account . . . . We will no longer send NOIs by mail
unless you withdraw your consent by emailing royaltyservices@musicreports.com.” According
to plaintiffs, the fact that they sent an email to the address provided automatically means that
they revoked consent to electronic service, regardless of the content of the email. As Amazon
points out in its memorandum in opposition, if that were true, plaintiffs could have sent an email
stating, “Yesh would like to continue to receive electronic service of NOIs,” and that would still
have operated as revocation of consent. This argument is clearly frivolous.
II.
Motion for Interlocutory Appeal
Alternatively, if their motion for reconsideration is denied, plaintiffs’ request leave to file
an interlocutory appeal. Pursuant to 28 U.S.C § 1292(b), a district court may certify an issue for
interlocutory appeal if it “involves a controlling question of law as to which there is substantial
ground for difference of opinion” and “an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” The resolution of an issue “need not
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necessarily terminate an action” to be considered a controlling question of law. Klinghoffer v.
S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione
Straordinaria, 921 F.2d 21, 24 (2d Cir. 1990) (internal citation omitted). A substantial ground for
difference of opinion may exist “where the issues are difficult and of first impression, or where
the party seeking interlocutory review can point to a substantial split in Second Circuit district
court rulings” on the relevant issue. In re Air Crash at Georgetown, Guyana on July 30, 2011, 33
F. Supp. 3d 139, 155 (E.D.N.Y. 2014) (internal quotation marks and citations omitted).
An immediate appeal from an interlocutory order “is a rare exception to the final
judgment rule that generally prohibits piecemeal appeals,” Koehler v. Bank of Bermuda Limited,
101 F.3d 863, 865 (2d Cir. 1996), and the Second Circuit has “repeatedly cautioned [that] use of
this certification procedure should be strictly limited.” In re Flor, 79 F.3d 281, 284 (2d Cir.
1996). Section 1292(b) certification is thus reserved for “extraordinary cases where appellate
review might avoid protracted and expensive litigation,’ . . . and is not intended as a vehicle to
provide early review of difficult rulings in hard cases.” Baumgarten v. Cty. of Suffolk, No. 07CV-0539, 2010 WL 4177283, at *1 (E.D.N.Y. Oct. 15, 2010) (internal quotation marks omitted).
Plaintiffs claim that the following six issues present controlling questions of law that
warrant certification for appeal: (1) “Did the District Court commit a critical factual error by
overlooking the fact that the ‘Plays Reported to TuneCore per Amazon’s Records’ column was
not the Purchased Content Locker streams”; (2) “Whether the Court exceeded its Article III
authority by making material factual and credibility determinations”; (3) “Whether the Court
mistaken [sic] about the Regulations in finding the Amazon Purchased Content Locker is exempt
from Section 115”; (4) “Whether it was clear error to exclude the TuneCore Email”; (5)
“Whether it was clear error to waive the statutorily required 56.1 statement”; and (6) “Whether it
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was clear error for the Court to overlook the exhibits attached to the declarations annexed to
plaintiff [sic], and proved [sic] the Contested NOIs are invalid.” None of these supposed issues
comes close to meeting § 1292(b)’s requirements for interlocutory appeal.
By plaintiffs own characterization, the first issue alleges a factual error, and thus does not
even raise a question of law, let alone a controlling one. The second issue also alleges a factual
error because it addresses plaintiffs’ disagreement with the Court’s ruling that there is no genuine
factual dispute as to whether Amazon has valid compulsory licenses. The third issue, whether
the operation of Amazon’s non-premium music locker service requires Amazon to secure
compulsory licenses, is a controlling issue of law, but is not one for which there is a substantial
ground for difference of opinion. In light of the Supreme Court’s decision in American
Broadcasting Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014), it is clear that the nonpremium music locker does not involve a distribution of copyrighted works to the public because
users download and stream songs in their capacities as owners.
Although both the fourth and fifth issues present questions of law, neither present
controlling questions of the law. As to the fourth issue, even if the Second Circuit reversed my
ruling on appeal and held that the email communications between plaintiffs and the TuneCore
representative are not inadmissible under the parole evidence rule, it would have no impact on
the Order because, as I explained, the email communications do not support that Amazon was
required to secure mechanical licenses under the Terms and Conditions of the TuneCore
agreements. As to the fifth issue, plaintiffs have suffered no prejudice from the Court’s waiver
of defendant’s Local Rule 56.1 obligations. Prior to ruling on the motion for summary judgment,
I conducted an “assiduous review of the record,” Holtz v. Rockerfeller & Co., Inc., 258 F.3d 62,
73 (2d Cir. 2001) (affirming the district court’s decision to conduct an independent review of the
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record and not accept the allegations in the defendant’s Rule 56.1 statement as admitted facts
even though the plaintiff failed to file a responsive statement), and I thus would have ruled the
same way even had I required defendant to file a Rule 56.1 statement. More importantly,
plaintiffs never objected to the waiver of the Rule 56.1 statement, and thus there are no grounds
for any appeal on this basis.
Finally, in regards to the sixth issue, I do not even understand what plaintiffs claim was
“clear error.” If plaintiffs are requesting an appeal as to whether it was error for the Court to
determine that the Music Reports monthly streaming reports do not undermine the Climan
declaration, then this issue is subsumed within plaintiffs’ third issue – whether there are any
material facts in dispute – and not subject to interlocutory appeal.
CONCLUSION
Plaintiffs’ motion for reconsideration or, in the alternative, for leave to file an
interlocutory appeal, is denied.
SO ORDERED.
Digitally signed by
Brian M. Cogan
___________________________________
U.S.D.J.
Dated: Brooklyn, New York
June 16, 2017
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