Spotify has responded to a lawsuit filed in December by Camper Van Beethoven and Camper frontman David Lowery, who is seeking $150 million in damages from the streaming service over alleged willful copyright infringement by the company. Lowery’s suit arrived on Spotify’s doorstep just days after the company announced plans for a database to manage publishing royalties. That announcement came some months after Spotify removed the catalog of Victory Records after the label’s publishing arm, Another Victory, claimed the service had failed to pay for 53 million streams of its songs.
Spotify’s response to Lowery, filed on Feb. 12 by Mayer Brown LLP, enumerates the many problems with record-keeping in the record business (a topic that Spotify itself addressed when announcing its formation of a publishing database, and which continues to generate significant debate in the industry) in an attempt to dismantle the suit’s class action certification. On the question of whether those eligible to participate in the class action could be identified, the filing reads:
… having a list of sound recordings streamed on Spotify’s service is not enough for Plaintiff or the Court (or, for that matter, Spotify) to identify the corresponding underlying musical works, let alone their owner(s). Just one of the many difficulties that arise is when multiple songs have the same name. For example, if the list includes a recording called “Hello,” that is not enough to figure out if the composition on the recording is the megahit by Adele, the classic by Lionel Richie, or other songs called “Hello” by Evanescence, Ice Cube, and many others. Would “California Girls” mean the song by the Beach Boys or the Katy Perry hit? Would “One” refer to the song by U2, the show tune from A Chorus Line, or one of many others, including hits by the Bee Gees and Metallica?
The crux of Spotify’s filing is that a class action suit over copyright violations requires such specific knowledge of each copyright infringement, much less each songwriter eligible to participate, that the suit runs afoul of the federal rules of civil procedure, which say that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Spotify contends that the information required for determining whether the company was in the wrong for any given infringement is specific to that song and/or recording. As well, Spotify’s lawyers contend that defining members of the proposed class is not administratively feasible for a catalog of 30 million-plus songs.
The company also references the win by Flo & Eddie against SiriusXM over royalties related to songs recorded prior to 1972, pointing to that case’s class action certification as being correct in order to cast Lowery’s own in sharp relief.
In that case, the court concluded that Sirius had engaged in an undifferentiated, across-the-board approach of not seeking any licenses and not paying any royalties for pre-1972 works. Given that fact, the court concluded that the central common issue was whether Sirius was correct as a matter of law that no licenses were legally required.
Spotify filed a separate document seeking to move the case from California to New York, where it maintains its U.S. headquarters.
According to Billboard sources, another class action suit against the streaming service over royalties is in the planning stages as well.