Capitol Records, LLC v. Redigi Inc.

Filing 286

DECLARATION OF GARY ADELMAN IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. (This document was previously filed under seal in envelope #53 and unsealed on 12/20/2016.) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(mro)

EXHIBIT 1

cas:uBG-c~-00095-RJS

Document 1

..E SUllJVAN

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11 'l:

COWAN, LIEBOWITZ & LATMAN, P.e.
1133 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-6799
[phone]

IN, I{"I

Attorneys for Plaintiff
CAPITOL RECORDS, LLC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------- )(
CAPITOL RECORDS, LLC,

Civil Action No.
Plaintiff,
COMPLAINT

-againstREDIGI INC.,
Defendant.
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Plaintiff Capitol Records, LLC ("Plaintiff'), by and through its undersigned attorneys, as
and for its Complaint, alleges as follows:
INTRODUCTION

1.

This action is for copyright infringement, contributory copyright infringement,

vicarious copyright infringement, and inducement of copyright infringement under the United
States Copyright Act, as well as common law copyright infringement under the law of the State
of New York, all arising from Defendant's willful and systematic infringement of Plaintiff's
sound recordings.
2.

Defendant owns and operates the "ReDigi" music service, which holds itself out

as the first online marketplace for "used" or "recycled" digital music files. With a stated purpose
of helping consumers buy and sell "used" digital music files, ReDigi makes and assists its users
in making systematic, repeated and unauthorized reproductions and distributions of Plaintiff s

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copyrighted sound recordings. ReDigi' s website states that it uploads copies of those recordings
to its service for interested "sellers," and then downloads copies for and to interested buyers.
During this process, ReDigi builds a user base and earns profit from its infringing conduct.
3.

ReDigi additionally streams 30 second clips of each recording to interested

shoppers and allows them to store those clips on their hard drives, all without Plaintiffs
authorization or approval. ReDigi also displays throughout its site unauthorized copies of cover
artwork Plaintiff owns and uses in connection with its sound recordings.
4.

While ReDigi touts its service as the equivalent of a used record store, that

analogy is inapplicable: used record stores do not make copies to fill their shelves. ReDigi is
actually a clearinghouse for copyright infringement and a business model built on widespread,
unauthorized copying of sound recordings owned by Plaintiff and others. Plaintiff brings this
lawsuit to halt Defendant's ongoing infringement of Plaintiff s copyrighted works and to recover
damages for the harm caused by Defendant's activities.
THE PARTIES
5.

Plaintiff Capitol Records, LLC ("Capitol") is a Delaware limited liability

company with its principal place of business at 150 Fifth Avenue, New York, New York 10011.
6.

Upon information and belief, Defendant ReDigi Inc. ("Defendant" or "ReDigi") is

a Delaware corporation with its principal place of business at Cambridge Innovation Ctr., 14th
Floor, 1 Broadway, Cambridge, MA 02142.
JURISDICTION AND VENUE
7.

This civil action seeks injunctive relief and damages for copyright infringement

under the Copyright Act, 17 U.S.C. § 101 et seq., and for common law copyright infringement
under New York law with respect to Plaintiffs sound recordings fixed prior to February 15,
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1972.
8.

This Court has subject matter jurisdiction over the federal copyright claims under

28 U.S.C. §§ 1331 and 1338(a), and has supplemental jurisdiction over the related state law
cause of action under 28 U.S.C. § I 367(a), inasmuch as that claim is so related to the federal
claims as to form part of the same case or controversy.
9.

This Court has personal jurisdiction over ReDigi because, on information and

belief, ReDigi transacts business in New York State and has committed tortious acts both within
and outside New York causing injury in New York.

10.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and

l400(a).
FACTS

Plaintiff's Business
II.

Plaintiff is a well known record company engaged in the business of producing,

manufacturing, distributing, selling, licensing and facilitating the distribution and sale of sound
recordings in the United States. Plaintiff's reputation as a producer of sound recordings of high
artistic and technical quality is known in New York, and throughout both the United States and
the world.
12.

Plaintiff is the copyright owner or owner of exclusive rights (by way of

agreement) with respect to an extensive and diverse catalog of sound recordings, including those
of such famous recording artists as Coldplay, Norah Jones, Katy Perry and Lily Allen, to name
just some. Under the Copyright Act, Plaintiff has the exclusive rights, among other things, to
"reproduce the copyrighted work[s]," "distribute copies or phonorecords of the copyrighted
work[s] to the public," and "perform the copyrighted work[s] publicly by means of a digital

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audio transmission," as well as to authorize or license others to engage in such activities. 17
U.S.c. § 106.
13.

Additionally, Plaintiff has entered into various agreements by which it obtained

the common law copyrights in sound recordings embodying certain performances that were
initially "fixed" prior to February 15, 1972 (the "Pre-1972 Recordings"). These performances
are subject to protection under state law rather than federal copyright law, and the Copyright Act
call110t be used to "annul[] or limit[]" those rights "until February 15,2067." 17 U.S.C. § 301(c).
Pursuant to these agreements and New York common law, Plaintiff possesses, among other
things, the exclusive and complete rights to manufacture, reproduce, distribute, seIl and perform
the Pre-1972 Recordings.
14.

In addition to manufacturing, distributing, selling and licensing phonorecords in

the form of CDs, cassettes and other tangible media, Plaintiff also distributes and licenses its
sound recordings in the form of digital audio files, which are marketed and distributed online,
and delivered to the consumer via the Internet. Legitimate avenues for the digital distribution of
music exist through authorized services, such as Apple's iTunes and Amazon's MP3 Music
Service, which provide these sound recordings for consumers pursuant to agreements that the
services negotiated with Plaintiff.
15.

Plaintiff has invested and continues to invest significant money, time, effort and

creative talent to discover and develop recording artists, and to create, manufacture, advertise,
promote, sell and license sound recordings embodying the performances of its exclusive
recording artists. Plaintiff, its recording artists and others in the music industry are compensated
for their creative efforts and monetary investments largely from the sale and distribution oftheir
sound recordings to the public, and from other exploitation of such sound recordings.

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16.

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A non-exhaustive, illustrative list of Plaintiffs federally copyrighted sound

recordings and associated artwork that have been illegally reproduced, distributed and/or
performed or displayed by or for users of Defendant's ReDigi service is attached hereto as
Exhibit A. Plaintiff has received Certificates of Copyright Registration from the Register of
Copyrights for these copyrighted sound recordings.
17.

A non-exhaustive, illustrative list of Pre-I 972 Recordings in which Plaintiff holds

exclusive rights under New York and other state laws and which have been illegally reproduced,
distributed and/or performed by or for users of Defendant' s ReDigi service is attached hereto as
Exhibit B.
Defendant and its Illegal Business

18.

Upon information and belief, Defendant owns and operates the ReDigi website

and service located at www.redigi.com. Newly launched and apparently still in a test and
"inventory build" phase, ReDigi styles itself as "the world's first and only online marketplace for
used digital music" and boasts that its service allows users to "buy used digital music from others
at a fraction of the price currently available on iTunes."
19.

Although the ReDigi website cryptically claims that its "genius" is "to facilitate

the transfer of a digital music file from one user to another without copying or file sharing," the
. entire service and business model are predicated upon making and assisting users in making
multiple, unauthorized copies, distributions, and performances of sound recordings owned by
Plaintiff and others.
20.

ReDigi's pre-launch press release reveals how selling digital music via its service

necessarily entails making multiple copies of sound recordings. According to the press release,
after downloading ReDigi's proprietary "Music Manager" software, users designate the songs

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they wish to sell from their desktop computers. "Eligible" tracks are then allegedly removed
from the user's computer and "synced" devices, "stored in the ReDigi cloud and offered for sale
on ReDigi's website."
21.

The track "stored" in and offered to consumers from ReDigi' s "cloud" is

necessarily a copy of the user's original file, which ReDigi purportedly deletes from the user's
hard-drive. No tangible, material object is transferred to the ReDigi "cloud"; rather, the user's
original file is duplicated and then stored by the ReDigi service, regardless of whether the user's
original file remains on his or her computer or is deleted.
22.

A second copy is then made when a ReDigi transaction is consummated. As the

press release continues, "When the song is purchased, the track and license will be instantly
transferred to its new owner." The so-called sale, in other words, can only be accomplished by
the creation and transfer of yet another copy of what was once the original user's digital file.
23.

The tutorial video on ReDigi's website homepage similarly highlights the

multiple copies that must be made of any sound recording ReDigi either stores or distributes.
The video encourages users first to download the "ReDigi Desktop Client" to open a ReDigi
account and begin selling "used" digital files. After the user then chooses and confirms the
tracks he or she wishes to sell using the software, "ReDigi will upload your songs for sale and
clean all of those unwanted files off your computer." Uploading, by its very nature, can only be
accomplished by making an unauthorized copy of the original user's track. The user does not
"sell" that original track but merely agrees to its deletion after it has been copied.
24.

The video then continues that interested purchasers can designate songs they wish

to buy from any computer, after which those songs are "safely stored in the ReDigi Cloud."
Users are urged, "yocl'll be able to buy a song from any computer, and download it later to your

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computer." Both storage and downloading again presuppose the making of additional copies of
the file that resided on the original user's computer.
25.

The video betrays another infringing act as well. In promoting the ease of

shopping on ReDigi, the tutorial tells users, "To listen to a 30 second clip of a song, drag it to
your playbox or click the song. We'll store it in your memory bank, so you know which songs
you listened to." In so doing, ReDigi first makes an unauthorized public performance via digital
audio transmission and then, upon information and belief, apparently makes yet another copy to
"store" in individual users' "memory banks."
26.

Throughout its website, ReDigi also displays numerous unauthorized copies of

the cover artwork Plaintiff owns and uses in connection with its sound recordings. In so doing,
ReDigi further violates Plaintiffs rights of reproduction and display.
27.

ReDigi offers its users various incentives to encourage and induce them to

participate in the unauthorized reproduction and distribution of Plaintiffs sound recordings. For
example, the video tutorial explains that for each song uploaded, a user earns "ReDigi coupons"
which can be used to buy additional songs for a "discounted price." Likewise, when those
uploaded songs sell, the original user earns ReDigi "credits" that can be applied to the purchase
of new songs.
28.

Further encouraging infringement, the ReDigi website homepage offers contests

and incentives urging users to avail themselves of the service. The homepage promises, "Store
or Sell at Least 10 MP3s on the ReDigi Cloud and be Entered to Win" prizes ranging from a Fiat
sports car to headphones. Moreover, by simply storing those 10 songs for purposes of later
resale, the user is promised, "Get 5 FREE songs just for storing 10 songs on ReDigi."
29.

Upon information and belief, in making and encouraging these various

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unauthorized reproductions, distributions and performances, ReDigi hopes to build a large userbase and corresponding profits. According to a ReDigi spokeswoman quoted in a November 14,
2011 New York Times article, ReDigi sells tracks for approximately 79 cents, and earns a fee of
"5 to 15 percent."

30.

In short, ReDigi's business model is to build a customer base and earn profits by

infringing and encouraging its users to infringe copyrighted sound recordings, including those
owned by Plaintiff Without these infringing acts, ReDigi would have no service to offer.
31.

ReDigi seeks to excuse its activities legally in various public statements, but none

justify its infringing conduct.
32.

ReDigi promises, for example, that its "Verification Engine" analyzes each file

uploaded for sale to ensure that the track was "legally downloaded" by the user in the first
instance and thus "eligible for sale." Given the widespread piracy of sound recordings on the
internet, it is questionable whether ReDigi can effectively determine whether files were lawfully
obtained in the first instance.
33.

Regardless, many such files, even if lawfully obtained, are restricted from resale,

duplication or redistribution by the original vendor. For example, Amazon.com - a common
source and likely the origin of many ReDigi uploads - expressly prohibits users of its MP3
Music Service from any redistribution, transfer, or sale of recordings downloaded via that
service. Whenever it urges users of this popular vendor to upload their content fonesale, ReDigi
is encouraging those users to breach their agreements and infringe copyrights.
34.

ReDigi's website also boasts that after a file is "verified" for eligibility, ReDigi

ensures that the original user will not "willfully use/possess any copies of the sold item,"
presumably by deleting the original source file from the user's computer and synchronized

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devices. But eveu ReDigi's founder has acknowledged publicly that there is no way to ensure
absolutely that users are not retaining copies of the files they upload to ReDigi's service, perhaps
on other devices or media that ReDigi's software cannot reach. Regardless, even if the source
file is effectively deleted from a user's computer, multiple infringing copies of that file must be
uploaded and downloaded - copied - for the ReDigi service to function.
35.

Finally, ReDigi protests on its website that its service is protected by the "First

Sale Doctrine" codified at 17 U.S.C. § 109, which permits "owners of a particular copy or
phonorecord lawfully made under this title ... to sell" that copy or phonorecord. ReDigi,
however, is not an "owner" of any such lawfully made copy, nor is ReDigi disposing of the
actual "particular copy" purchased by a user. Rather, ReDigi and its users are making and
distributing unauthorized copies of that original file.
36.

The Copyright Act defines "copy" and "phonorecord" as material objects in

which a work or sounds are fixed, respectively. Neither ReDigi nor its users resell the original
material object that resided on the original user's computer. Rather, in violation of Plaintiffs
rights of reproduction, ReDigi and its users duplicate digital files both in uploading and
downloading discrete copies distinct from the original file that originally resided on a user's
computer.
37.

ReDigi compounds that infringement by also performing the digital file publicly

via its sound clip feature, storing that sound clip on users' computers, and making unauthorized
copies and displays of artwork Plaintiff owns and uses in connection with its sound recordings.
38.

Beyond its own infringing conduct, ReDigi materially contributes to and induces

infringing conduct by its users. ReDigi knowingly and willfully offers them financial incentives
for participating in unauthorized reproductions and distributions of Plaintiffs sound recordings.

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It encourages those users to violate the terms of certain of their original vendor agreements, such
as those imposed by Amazon.com, and essentially creates a marketplace where users engage in
widespread infringement.
39.

ReDigi's aggressive promotion of its service has resulted in many of Plaintiffs

best-selling, most valuable sound recordings being infringed via ReDigi. For instance, many of
Billboard's "top 100" songs listed as available from ReDigi are owned by Plaintiff.
40.

More generally, inspection ofReDigi's website reveals that it is currently offering

for "sale" countless sound recordings owned or controlled by Plaintiff, as well as reproducing
certain of Plaintiff s copyrighted artwork associated with those recordings. A representative list
of some of those federally registered, copyrighted sound recordings and the associated artwork is
attached as Exhibit A. A corresponding list of Pre-I 972 sound recordings owned by Plaintiff and
infringed on ReDigi is attached as Exhibit B.
41.

The Recording Industry Association of America ("RIAA"), a trade association

whose members, including Plaintiff, create, manufacture and distribute sound recordings
legitimately sold in the United States, notified ReDigi in November 2011 that its service violated
Plaintiffs and other RIAA members' copyrights and demanded that ReDigi cease and desist
from any further infringement.
42.

ReDigi has to date refused to halt its infringing conduct.

43.

As a result of ReDigi's unlawful actions, Plaintiff has been damaged and has

suffered, and continues to suffer, irreparable injury for which it has no adequate remedy at law.
COUNT 1
(Copyright Infringement)
44.

Plaintiff repeats and reaUeges the allegations set forth in paragraphs 1-43 above

with the same force and effect as if set forth fully herein.
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45.

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ReDigi has engaged and continues to engage in the unauthorized reproduction,

distribution and public performance of Plaintiffs copyrighted sound recordings and distribution
and public display of Plaintiffs associated artwork, including but not limited to those recordings
and the associated artwork listed in Exhibit A. As a result, ReDigi is liable for copyright
infringement of Plaintiffs exclusive rights of reproduction, distribution and performance under
17 U.S.C. § 106.
46.

The infringement of Plaintiffs rights in each of its copyrighted sound recordings

and the associated artwork constitutes a separate and distinct act of infringement.
47.

ReDigi's acts of infringement are willful, intentional and purposeful, in disregard

of Plaintiff s rights.
48.

As a direct and proximate result ofReDigi's infringement of Plaintiffs

copyrights; Plaintiff is entitled to its actual damages as well as ReDigi' s profits from the
infringements, as will be proven at trial pursuant to 17 U.S.C. § 504(b). Alternatively, Plaintiff
is entitled to maximum statutory damages, in the amount of $150,000 per infringement, pursuant
to 17 U.S.C. § 504(c), or for such other amount as may be proper pursuant to 17 U.S.C. § 504(c).
49.

Unless and until ReDigi's conduct is enjoined by this Court, it will continue to

cause irreparable injury that cannot fully be compensated for or measured in money, and Plaintiff
is accordingly also entitled to an injunction pursuant to 17 U.S.C. § 502 prohibiting further
infringement of its exclusive rights under copyright.
50.

Plaintiff is further entitled to attorneys' fees and costs pursuant to 17 U.S.c. §

505.

COUNT II
(Indncement of Copyright Infringement)
51.

Plaintiff repeats and realleges the allegations set forth in paragraphs I-50 above

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with the same force and effect as if set forth fully herein.
52.

ReDigi users have engaged and continue to engage in the unauthorized

reproduction and distribution of Plaintiffs copyrighted sound recordings and distribution and
public display of Plaintiffs associated artwork, including but not limited to those recordings and
the associated artwork listed in Exhibit A. As a result, such users are liable for direct copyright
infringement of Plaintiffs exclusive rights of reproduction and distribution under 17 U.S.C. §
106.
53.

Each one ofthese users' infringing acts has been encouraged and made possible

by ReDigi, whose object is to promote the unlawful reproduction and distribution of Plaintiffs
and others' sound recordings.
54.

ReDigi's inducement of copyright infringement is apparent from its active

promotion of its ability to assist users in making unauthorized copies and sales of Plaintiffs and
others' sound recordings and associated artwork, and ReDigi' s adoption of a business model that
depends upon a high volume of infringement to create a user base and generate sales
commissions.
55.

As a result of the foregoing, ReDigi is liable under the Copyright Act for inducing

the infringing acts of its users, in violation of Sections 106 and 501 of the Copyright Act.
56.

The infringement of Plaintiffs rights in each of its copyrighted sound recordings

and associated artwork constitutes a separate and distinct act of infringement.
57.

Defendant's acts of infringement are willful, intentional and purposeful, in

disregard of Plaintiffs rights.
58.

As a direct and proximate result of ReDigi's infringement of Plaintiffs

copyrights, Plaintiff is entitled to actual damages as well as Defendant's profits from the

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infringements, as will be proven at trial pursuant to 17 U.S.C. § 504(b). Alternatively, Plaintiff
is entitled to maximum statutory damages, in the amount of$150,000 per infringement, pursuant
to 17 U.S.C. § 504(c), or for such other amount as may be proper pursuant to 17 U.S.C. § 504(c).
59.

Unless and until ReDigi's conduct is enjoined by this Court, it will continue to

cause irreparable injury that cannot fully be compensated for or measured in money, and Plaintiff
is accordingly also entitled to an injunction pursuant to 17 U.S.C. § 502 prohibiting further
infringement of its exclusive rights under copyright.
60.

Plaintiff is further entitled to attorneys' fees and costs pursuant to 17 U.S.C. §

505.
COUNT III
(Contributory Copyright Infringement)
61.

Plaintiff repeats and realleges the allegations set forth in paragraphs 1-60 above

with the same force and effect as if set forth fully herein.
62.

ReDigi users have and continue to engage in the unauthorized reproduction and

distribution of Plaintiffs copyrighted sound recordings and distribution and public display of
Plaintiff s associated artwork, including but not limited to those recordings and the associated
artwork listed in Exhibit A. As a result, such users are liable for direct copyright infringement of
Plaintiffs exclusive rights of reproduction and distribution under 17 U.S.C, § 106.
63,

ReDigi has actual and constructive knowledge of its users' infringing activity and

materially contributes to that activity by promoting its ability to help users make and sell
unauthorized copies of sound recordings and artwork, including those owned by Plaintiff.
ReDigi provides its users with software to facilitate unauthorized copying, and awards users
"coupons" or "credits" towards future purchases every time they upload a song for "sale" or
succeed in distributing a track, thus urging and contributing to infringing conduct.

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64.

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Moreover, ReDigi was notified of such infringing conduct by the RIAA, but

refused to take the necessary action to halt that conduct.
As a result of the foregoing, Defendant is liable under the Copyright Act for

65.

contributorily infringing Plaintiffs copyrights, in violation of Sections 106 and 50 I ofthe
Copyright Act.
66.

The infringement of Plaintiffs rights in each of its copyrighted sound recordings

and associated artwork constitutes a separate and distinct act of infringement.
67.

ReDigi' s acts of infringement are willful, intentional and purposeful, in disregard

of Plaintiff s rights.
68.

As a direct and proximate result ofReDigi's infringement of Plaintiffs

copyrights, Plaintiff is entitled to actual damages as well as ReDigi's profits from the
infringements, as will be proven at trial pursuant to 17 U.S.C. § 504(b). Alternatively, Plaintiff
is entitled to maximum statutory damages, in the amount of $150,000 per infringement, pursuant
to 17 U.S.C. § 504(c), or for such other amount as may be proper pursuant to 17 U.S.C. § 504(c).
69.

Unless and until ReDigi's conduct is enjoined by this Court, it will continue to

cause ilTeparable injury that cannot fully be compensated for or measured in money, and Plaintiff
is accordingly also entitled to an injunction pursuant to 17 U.S.C. § 502 prohibiting further
infringement of its exclusive rights under copyright.
70.

Plaintiff is further entitled to attorneys' fees and costs pursuant to 17 U.S.c. §

505.

COUNT IV
(Vicarious Copyright Infringement)
71.

Plaintiff repeats and realleges the allegations set forth in paragraphs 1-70 above

with the same force and effect as if set forth fully herein.
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72.

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ReDigi users have and continue to engage in the unauthorized reproduction and

distribution of Plaintiffs copyrighted sound recordings and distribution and public display of
Plaintiffs associated artwork, including but not limited to those recordings and the associated
artwork listed in Exhibit A. As a result, such users are liable for direct copyright infringement of
Plaintiffs exclusive rights of reproduction and distribution under 17 U.S.C. § 106.
73.

ReDigi has the legal right and actual ability to supervise and control the infringing

activities that occur through its site and service. Its website notes that if users are uncertain
about the legal origins of their songs, " ... don't sweat it. If you aren't sure where it [the user's
music file] came from, we'll help you figure it out." ReDigi also insists that it can identify and
take action against repeat infringers, and explains that it will terminate the account of those who
retain files ReDigi believes it has "cleaned" out of sellers' computers.
74.

ReDigi has nevertheless refused to exercise any control over the illegal

reproduction of copyrighted music or associated artwork, and as a direct and proximate result of
such failure, ReDigi users have infringed and continue to infringe Plaintiff s copyrighted sound
recordings and artwork, including those listed in Exhibit A.
75.

ReDigi has derived direct and substantial financial benefits from the

infringements of Plaintiff s copyrighted sound recordings and artwork occurring via its service.
In addition to attracting a user base, the ReDigi service charges a percentage sales commission
when unauthorized recordings are sold and downloaded via the ReDigi site.
76.

As a result of the foregoing, ReDigi is liable under the Copyright Act for

vicariously infringing Plaintiffs copyrights, in violation of Sections 106 and 501 of the
Copyright Act.

77.
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The infringement of Plaintiff s rights in each of its copyrighted sound recordings
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and associated artwork constitutes a separate and distinct act of infringement.
78.

ReDigi's acts of infringement are willful, intentional and purposeful, in disregard

of Plaintiff s rights.
79.

As a direct and proximate result of ReDigi' s infringement of Plaintiff s

copyrights, Plaintiff is entitled to actual damages as well as ReDigi' s profits from the
infringements, as will be proven at trial pursuant to 17 U.S.C. § 504(b). Alternatively, Plaintiff
is entitled to maximum statutory damages, in the amount of $1 50,000 per infringement, pursuant
to 17 U.S.C. § 504(c), or for such other amount as may be proper pursuant to 17 U.S.C. § 504(c).
80.

Unless and until ReDigi's conduct is enjoined by this Court, it will continue to

cause irreparable injury that cannot fully be compensated for or measured in money, and Plaintiff
is accordingly also entitled to an injunction pursuant to 17 U.S.C. § 502 prohibiting further
infringement of its exclusive rights under copyright.
81.

Plaintiff is further entitled to attorneys' fees and costs pursuant to 17 U.S.C. §

505.

COUNTY
(Common Law Copyright Infringement)
82.

Plaintiff repeats and realleges the allegations set forth in paragraphs 1-81 above

with the same force and effect as if set forth fully herein.
83.

The Pre-l 972 Recordings are subject to common law copyright protection under

New York law. As the owner of valid common law copyrights in the Pre-I 972 Recordings,
Plaintiff possesses the exclusive rights to sell, copy, distribute and perform these recordings.
84.

Plaintiff has not granted or licensed ReDigi the right to copy, distribute or

perform the Pre-I 972 Recordings in any manner, including by digital transmission. ReDigi's
conduct as described above constitutes infringement of Plaintiff s common law copyrights in the

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Pre-l 972 Recordings, including without limitation, those recordings listed in Exhibit B hereto.
85.

The infringement of Plaintiff's rights in each of its Pre-1972 Recordings

constitutes a separate and distinct act of infringement.
86.

As a direct and proximate result of ReDigi's violation of Plaintiff's rights in and

to the Pre-l 972 Recordings, Plaintiff has suffered damages in an amount to be proven at trial.
Plaintiff is entitled to recover all proceeds and other compensation received or to be received by
ReDigi arising from its infringement of Plaintiff's Pre-1972 Recordings, and is entitled to an
accounting to ascertain the amount of such profits and compensation.
87.

ReDigi's acts of infringement are willful, intentional and purposeful, in disregard

of Plaintiff's rights, and Plaintiff is entitled to punitive damages in addition to actual damages.
88.

Unless and until ReOigi's conduct is enjoined by this Court, it will continue to

cause irreparable injury that cannot fully be compensated for or measured in money, and Plaintiff
is accordingly also entitled to an injunction prohibiting ReOigi from further violating Plaintiff's
rights in the Pre-1972 Recordings.
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor
and against the Defendant as follows:
A.

On all Counts, for such preliminary and permanent injunctive relief as is

necessary to prevent or restrain infringement of Plaintiff's copyrights, including a preliminary
and permanent injunction requiring that ReOigi and its agents, servants, employees, officers,
directors, attorneys, successors, assigns, licensees and all others in active concert or participation
with any of them, cease infringing, or causing, aiding, enabling, facilitating, encouraging,
promoting, inducing or materially contributing to or participating in the infringement of any of
Plaintiff's copyrights or exclusive rights protected by the Copyright Act or common law
------------------

-17-

Case 1:12-cv-00095-RJS Document 1

Filed 01/06/12 Page 18 of25

(whether now in existence or hereafter created), including without limitation the recordings and
associated artwork listed in Exhibits A and B.
B.

On Counts I-IV, for ReDigi's profits attributable to the infringement of Plaintiffs

copyrights, including without limitation the recordings and associated artwork listed in Exhibit
A, and for Plaintiff s actual damages sustained by reason of ReDigi' s wrongful acts in an amount
to be proven at trial, or alternatively, at Plaintiffs election, for maximum statutory damages in
the amount of $150,000 with respect to each copyrighted work infringed, or for such other
amount as may be proper pursuant to 17 U.S.C. § 504(c).
C.

On Count V, for compensatory damages, an accounting for all gains, profits and

advantages derived from ReDigi's wrongful acts and punitive damages in amounts to be proven
at trial.
D.

For Plaintiffs attorneys' fees, costs and disbursements in this action.

E.

For prejudgment and post-judgment interest.

F.

For such other and further relief as the Court may deem just and proper.

Dated: New York, New York
January 5, 2012
C.OWAN, LIEBOWITZ & LATMAN, P.C~

By:~Z?ft2 >~
Richard S. Mandel
Jonathan Z. King
Robert W. Clarida
1133 Avenue of the Americas
New York, New York 10036-6799
[phone]
Attorneys for Plaintiff
Capitol Records, LLC

~~~~~~~--------~-----

-18-

Case 1:12-cv-00095-RJS Document 1

Filed 01/06/12 Page 19 of 25

EXHIBIT A

EXHIBIT A

.

:~~~~~~~~x:':~ ffi~t0)it.e~~N5.grt1t~:~~~ :~~;~-S~·~0~/.:-.'·:'~:'{'~
30 Seconds To Mars

Kill (Bury Me)

A Beautiful lie

SR 377-457

30 Seconds To Mars

A Beautiful lie

SR377-457

()

30 Seconds To Mars

A Beautiful Lie

U>

A Beautiful Lie

SR 377-457
SR 377-457

30 Seconds To Mars

Beautiful Lie

A Beautiful Lie

30 Seconds To Ma rs

30 Seconds To Mars

ItA Dream?

A Beautiful Lie
A Beautiful lie

SR 377-457

!l)
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~

~

0
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A Beautiful Lie

SR 377-457

()1

A Beautiful lie

SR 377-457

;0

Beastie Boys

Hello Nasty

SR 277-731

(f)

Beastie Boys

Hello Nasty

SR 277-731

Beastie Boys

Hello Nasty

SR 277-731

Beastie Boys

Hello Nasty

SR 277-731

Beastie Boys

Hello Nasty

SR 277-731

Beastie Boys

Hello Nasty

SR 277-731

Beastie Boys

Move
Out The Hospita I
MC's And One OJ
Grasshopper Unit (Keep Mavin')

SR 377-457

30 Seconds To Mars

Forthe Man

A Beautiful Lie

30 Seconds To Mars

Prose

A Beautiful lie

30 Seconds To Mars

Yesterday

SR 377-457
SR 377-457
SR 377-457

Hello Nasty

Beastie Boys
Beastie Boys

Hello Nasty
Hello Nasty

SR 277-731
SR 277-731

Beastie Boys

30 Seconds To Mars
30 Seconds To Mars

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SR 277-731

Beastie Boys

Hello Nasty

Beastie Boys

Hello Nasty

SR 277-731
SR 277-731

Beastie Boys

Hello Nasty

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The Wind

Hello Nasty
Hello Nasty

SR 277-731

Beastie Boys

Hello Nasty

SR 277-731

(I)

To The 5 Boroughs

SR 360-352

0

Beastie Boys

To The 5 Boroughs

5R 360-352

0
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To The 5 Boroughs

Beastie Boys

Death

Beastie Boys
Beastie Boys

Beastie Boys

This
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SR 277-731
SR 277-731

Beastie Boys

Shame In Your Game

To The 5 Boroughs
To The 5 Boroughs

SR 360-352
5R 360-352

Beastie Boys
Bob Seger & The Silver Bullet Band

Page 1

Harley-Davidson Cycles (Road Songs)

SR 360-352
SR 17-910

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EXHIBIT A

fad Put A Smile Upon Your Face
[locks

Coldplay

A Rush Of Blood To The Head

SR322-958

Coldplay

A Rush Of Blood To The Head

The Scientist

SR 322-958

Coldplay

Don't Panic

SR 322-958

Coldplay

A Rush Of Blood To The Head
Parachutes

SR 328-762

tellow

0

Cold play

Parachutes

SR 328-762

(f)

I
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Trouble
Shiver

Coldplay

Parachutes

SR 328-762

Coldplay

Parachutes

1

Coldplay

Parachutes

SR 328-762
SR 328-762

~arachutes

Coldplay

Parachutes

~igh Speed

SR 328-762

Coldplay

Parachutes

SR 328-762

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Coldplay

Parachutes

SR 328-762

~parks

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Coldplay

Parachutes

SR 328-762

Everything's Not Lost

;U

Cold play

Parachutes

Coldplay

Viva La Vida Or Death And All His Friends
X&Y

SR 328-762
SR 652-909

Yiva La Vida
Speed Of Sound
I

Coldplay

fiX You

Cold play

prink In My Hand

Eric Church

X&Y
Chief

SR 376-828

One OfThe Boys

SR 638-214

Katy Perry

One Of The Boys

SR 638-214

fv1annequin

Katy Perry

One OfThe Boys

SR 638-214

prSo Gay
Self Inflicted

Katy Perry

One OfThe Boys

SR 638-214

Katy Perry

l'm Still Breathing

Katy Perry

One OfThe Boys
One OfThe Boys

SR 638-214
SR 638-214.
SR 638-214

One OfThe Boys

If You Can Afford Me

Teenage Dream

Katy Perry
Katy Perry

One Of The Boys
One Of The Boys
One Of The Boys
Teenage Dream

Last Friday Night (T.G.LF.)

Katy Perry

Teenage Dream

California Gurls ft. Snoop Dogg

Katy Perry

Peacock

I
~ot'N Cold

I
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fhe One That Got Away
rhO Am I Living For?

I

0

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Katy Perry

Katy Perry
Katy Perry

0
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raking Up In Vegas

Katy Perry

'(f)

SR 376-828
SR 681-019

Thinking Of You

pne Of The Boys
I Kissed A Girl

,

SR 638-214
SR 638-214
SR 638-214
SR 662-268

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SR 662-268
SR 662-264

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Teenage Dream

SR 662-268

N

Katy Perry

Teenage Dream

SR 662-268

Katy Perry
Katy Perry

Teenage Dream

SR 662-268

Teenage Dream

SR 662-268

Page 2

~

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EXHIBIT A
i

~ummingbird Heartbeat

Katy Perry

Teenage Dream

SR 662-268

Firework

Katy Perry

Teenage Dream

SR 662-268

Not Like The Movies

Katy Perry
Keith Urban

Teenage Dream
Love, Pain & the whole crazy thing

SR 398-619

iust A Kiss

Lady Antebellum

Just A Kiss

SR 679-267

Long Gone

Lady Antebellum

Lady Antebellum

SR 656-386

.Love Don't Live Here
,Lookin' For A Good Time
All We'd Ever Need

Lady Antebellum

Lady Antebellum

SR 656-388

Lady Antebellum
Lady Antebellum

Lady Antebellum

SR 656-386

'! Told You So

~ove's Lookin' Good On You
jHOme Is Where The Heart Is
[fhings People Say
· Slow Down Sister
· bne Day You Will
'i
Need You Now
)Nhen You Got A Good Thing
· $tars Tonight

SR 662-268

Lady Antebellum

SR 656-386

Lady Antebellum
Lady Antebellum

Lady Antebellum
Lady Antebellum

SR 656-386
SR 656-386

Lady Antebellum
Lady Antebellum

Lady Antebellum
Lady Antebellum

SR 656-386
SR 656-386

Lady Antebellum

Lady Antebellum

Lady Antebellum

Need You Now

SR 656-386
SR 644-543

Lady Antebellum
Lady Antebellum

Need You Now
Need You Now

SR 644-543
SR 644-546

Lady Antebellum

Need You Now

SR644-546

~merican Honey
,

Lady Antebellum

Need You Now

SR644-544

;Perfect Day

Lady Antebellum

Need You Now

SR644-543

~ove This Pain

Lady Antebellum

Need You Now

SR 644-542

!If I Knew Then

Lady Antebellum

Need You Now

SR644-543

Lady Antebellum

Need You Now

SR 644-543

!Ready To Love Again

Lady Antebellum

Need You Now

[LDN

Lily Allen

~mile

Lily Allen

Alright, Still
Alright, Still

SR644-543
SR 392-060

!Knock 'Em Out
!Everything's Just Wonderful
[Friday Night
[Alfie

Lily Allen
Lily Allen

Alright, Still
Alright, Still

Lily Allen
Lily Allen
Lily Allen

Alright, Still
Alright, Still
Alright, Still

SR 392-060
SR 392-058
SR 392-058
SR 392-058
SR 392-058

Norah Jones

Come Away With Me

SR 320-120

Amos lee

Windows Are Rolled Down

SR 671-434

Dierks Bentley

Up On The Ridge

SR 663-139

i

· ~ake What You Take
!Turn MeOn
, iWindows Are Rolled Down
[Draw Me A Map
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Page 3

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EXHIBIT A
Suddenly I See
I
. Black Horse And A Cherry Tree

KTTunstall

Eye To The Telescope

SR 388-462

KTTunstali

Eye To The Telescope

SR 388-462

Under The Weather

KTTunstali

Eye To The Telescope

SR 388-462

huper Duper Love

Joss Stone

The Soul Sessions

SR 343-788

Fell In Love With A Boy

Joss Stone

The Soul Sessions

SR 343-788

ilaby Baby Baby

Joss Stone

IntroducingJ

SR 642-089

More {2004 Digital Remasterl

Bobby Darin

The Legendary Bobby Darin

SR 367-404

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Page 4

Case 1:12-cv-00095-RJS Document 1

Filed 01/06/12 Page 24 of 25

EXHIBITB

EXHIBIT B

Ridin' High: The Complete Record Releases 1957-1959

A Little Moonlight Can Do
Christmas Song (Merry Christmas To You)

Nat King Cole

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Page 1 of 1