Spotify Strikes Out Again

MTP readers will remember that David Lowery sued Spotify for failing to license, account and pay mechanical royalties for David’s songs as well as those of a potential class.  Naturally the early maneuvering in Spotify’s response to the case has to do with whether a class action is the appropriate vehicle for pursuing what appears to be Spotify’s massive infringement of songs.

Recall that there was another class action filed by Melissa Ferrick, a songwriter.  Melissa’s lawyers also represent The Turtles aka Flo & Eddy in their unrelated lawsuit against SiriusXM and Pandora for infringing pre-72 recordings.  (That case is still proceeding although the major labels settled outside of the class for $210 million against SiriusXM and $90 million against Pandora, for a total of $300 million–a number evenly divisible by…let’s see…Sony, Universal, Warner…3.)

Spotify’s papers in their Motion to Strike contain this chunk which kind of jumped out at me:

Plaintiff may seek to rely on a recent decision by another judge of this Court granting class certification in a copyright case. But that decision, Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2015 WL 4776932 (C.D. Cal. May 27, 2015), is incorrect. But more importantly, it is readily distinguishable.

That is an odd little passage.  First of all, it is the classic straw man argument–Lowery’s lawyers never raised the Turtles case in their complaint against Spotify.  At all.  It’s almost like the lawyers are planning to do a cut and paste job on this pleading to use against Melissa’s lawyers or maybe left the language in the Lowery motion by mistake.

But the oddest thing about the passage is that they say that the Turtles case–decided by a judge in the same courthouse where Spotify is fighting the Lowery case–“is incorrect.”  That is very strange.

However inartful the words may be, if you were going to say something so broad and sweeping that puts you squarely in opposition to fairly compensating Aretha Franklin, the heirs of Duke Ellington and many others, you would expect that “is incorrect” would be followed by some kind of citation or at least an argument.  I read that passage about 20 times trying to figure out what I was missing, but I’ve come to the conclusion that I’m not missing anything.

These New York lawyers actually said that a Court’s considered decision is incorrect.  Not over reaching, not too broadly stated, not anything except “incorrect.”  Note that the “incorrect” statement is followed by “it is readily distinguishable.”  What one would have expected to see was something like “the Flo & Eddie decision is readily distinguishable,” followed by the argument for why the Flo & Eddie case may appear to apply to the case at bar but can be shown not to.

Not the bald statement that a case that has not been raised against Spotify so far by anyone  is both “incorrect” and “distinguishable.”  Distinguishable is done all day every day in the law.  “Incorrect”–particularly when said to a judge about the ruling by another judge (especially in the same courthouse) is just bizarre.  And, frankly, in my opinion, rather rude.