Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page1 of 13 1 2 3 4 5 6 7 8 9 10 THE LAW OFFICE OF JACK FITZGERALD, PC JACK FITZGERALD (SBN 257370) jack@jackfitzgeraldlaw.com TREVOR M. FLYNN (SBN 253362) trevor@jackfitzgeraldlaw.com TRAN NGUYEN (SBN 301593) tran@jackfitzgeraldlaw.com Hillcrest Professional Building 3636 Fourth Avenue, Suite 202 San Diego, California 92103 Phone: (619) 692-3840 Fax: (619) 362-9555 Counsel for Plaintiff Zenbu Magazines LLC, and the Putative Class 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 12 13 Case No.: 15-cv-310 14 15 ZENBU MAGAZINES LLC, on behalf of itself and all others similarly situated, COMPLAINT FOR: 16 17 Plaintiff, v. 18 19 20 21 CLASS ACTION SONY COMPUTER ENTERTAINMENT AMERICA LLC, and SONY ENTERTAINMENT NETWORK INTERNATIONAL LLC, VIOLATION OF CAL. CIV. CODE § 980(a)(2); VIOLATION OF CAL. BUS. & PROF. CODE §§ 17200 ET SEQ.; MISAPPROPRIATION; and 22 23 24 Defendants. CONVERSION DEMAND FOR JURY TRIAL 25 26 27 28 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page2 of 13 1 Plaintiff Zenbu Magazines LLC (“Zenbu”), on behalf of itself, all others similarly 2 situated, and the general public, by and through its undersigned counsel, hereby brings this 3 action against defendants Sony Computer Entertainment America LLC, and Sony Network 4 Entertainment International LLC (collectively, “Sony”), and alleges the following upon its 5 own knowledge, or where it lacks personal knowledge, upon information and belief including 6 the investigation of its counsel. 7 8 INTRODUCTION 1. Sony operates and offers to the general public a streaming music service called 9 Music Unlimited, which is available through the Sony PlayStation video game console, 10 online through an Internet browser, and through applications for certain Android, Apple 11 (iOS), and Windows smartphones and tablets. 12 2. Included in the Music Unlimited library are sound recordings of musical 13 performances that initially were “fixed” (that is, in a tangible medium, i.e., recorded) prior to 14 February 15, 1972, for which Sony has not obtained the recordings’ owners’ authorization to 15 perform, and for which Sony does not and has not paid the recordings’ owners royalties or 16 licensing fees when it performs the recordings. 17 3. Sony has copied tens of thousands of pre-1972 sound recordings to its servers, 18 transmitting and performing them via Music Unlimited to its millions of users on a daily 19 basis, without any authorization. Sony profits from its unauthorized reproduction, 20 distribution, and public performance of pre-1972 recordings by charging subscription fees to 21 its users, without paying royalties or licensing fees for pre-1972 recordings. 22 4. Because Sony operates Music Unlimited without licenses for pre-1972 sound 23 recordings, Sony is liable under California law for violation of Cal. Civ. Code § 980(a)(2), 24 violation of Cal. Bus. & Prof. Code §§ 17200, et seq., misappropriation, and conversion. 25 5. Zenbu owns all right, title, and interest in and to a library of pre-1972 sound 26 recordings, several of which Sony has reproduced, distributed, and performed without paying 27 Zenbu any royalties or licensing fees. Zenbu brings this action on behalf of itself and 28 1 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page3 of 13 1 similarly-situated owners of pre-1972 recordings that have been reproduced, distributed, and 2 performed by Sony without paying royalties or licensing fees. 3 4 5 6 THE PARTIES 6. Plaintiff Zenbu Magazines LLC is a New York limited liability company with its principal place of business in Brooklyn, New York. 7. Defendant Sony Computer Entertainment America LLC is a Delaware limited 7 liability company with its principal place of business at 2207 Bridgepointe Parkway, San 8 Mateo, California 94404. 9 8. Defendant Sony Entertainment Network International LLC is a Delaware 10 limited liability company with its principal place of business at 6080 Center Drive, 10th Floor, 11 Los Angeles, California 90045. 12 9. 13 14 The Sony defendants together own and operate Music Unlimited. JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 15 1332(d)(2)(A), the Class Action Fairness Act, because the matter in controversy exceeds the 16 sum or value of $5,000,000 exclusive of interest and costs and at least one member of the 17 class of plaintiffs is a citizen of a State different from defendant. In addition, more than two- 18 thirds of the members of the class reside in states other than the state in which defendant is a 19 citizen and in which this case is filed, and therefore any exceptions to jurisdiction under 28 20 U.S.C. § 1332(d) do not apply. 21 11. The Court has personal jurisdiction over defendant pursuant to Cal. Code Civ. 22 P. § 410.10, as a result of defendant’s substantial, continuous and systematic contacts with 23 the State, and because defendant has purposely availed itself of the benefits and privileges of 24 conducting business activities within the State. 25 26 12. Venue is proper in this Northern District of California pursuant to 28 U.S.C. § 1391(b) and (c), because defendant resides (i.e., is subject to personal jurisdiction) in this 27 28 2 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page4 of 13 1 district, and a substantial part of the events or omissions giving rise to the claims occurred in 2 this district. 3 4 INTRADISTRICT ASSIGNMENT 13. Pursuant to N.D. Cal. Civ. L.R. 3-2(c), (d) & 3-5(b), this action is properly 5 assigned to the San Francisco or Oakland Division because the action arises in San Mateo 6 County in that a substantial part of the events or omissions which give rise to plaintiff’s claims 7 occurred in San Mateo, the principal location of defendant Sony Computer Entertainment 8 America LLC. 9 10 FACTS 14. Music Unlimited is provided by Sony to paying and non-paying members of the 11 public throughout the United States. Sony delivers and streams music through its website 12 (www.playstation.com/en-us/explore/playstationnetwork/musicunlimited), 13 PlayStation video game consoles, and via downloadable applications for certain Android, 14 Apple (iOS), and Windows smartphones and tablets. In marketing the Sony Music service, 15 Sony represents that subscribers have access to millions of songs. 16 15. through its Sony provides the Music Unlimited on a one-month free trial basis for new users, 17 and on a subscription basis for $4.99 per month (the so-called “Access Plan,” which allows a 18 subscriber to “enjoy at home,” by using the service on a PlayStation or online on a PC or Mac 19 computer), or $9.99 per month (the so-called “Premium Plan,” which allows a subscriber to 20 “listen on the go,” by using the service on a PlayStation or Sony Blu-Ray Disc player, online 21 on a PC or Mac, or on certain mobile devices). 22 16. Among the sound recordings that Sony publicly performs, reproduces, and 23 distributes on an ongoing and regular basis are pre-1972 recordings, including recordings 24 owned by Zenbu (the “Zenbu Recordings”), specifically: 25 26 27 Artist The Flying Burrito Brothers Album The Gilded Palace of Sin Song(s) Sin City Date of Recording 1969 28 3 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page5 of 13 1 Artist 2 3 New Song (for the Morning) April 30, 1971 Hot Tuna Historic Live Tuna (taken from Classic Hot Tuna Acoustic) Been So Long April 30, 1971 Hot Tuna Historic Live Tuna (taken from Classic Hot Tuna Acoustic) Oh Lord, Search My Heart April 30, 1971 Hot Tuna Historic Live Tuna (taken from Classic Hot Tuna Acoustic) True Religion April 30, 1971 Hot Tuna Historic Live Tuna (taken from Classic Hot Tuna Acoustic) Space Jam April 30, 1971 Hot Tuna Historic Live Tuna (taken from Classic Hot Tuna Electric) Intro by Bill Graham/Rock Me Baby July 3, 1971 Hot Tuna Historic Live Tuna (taken from Classic Hot Tuna Electric) Want You to Know July 3, 1971 Hot Tuna Historic Live Tuna (taken from Classic Hot Tuna Electric) Come Back Baby July 3, 1971 New Riders of the Purple Sage Before Time Began Henry 1968-69 New Riders of the Purple Sage Before Time Began All I Ever Wanted 1968-69 New Riders of the Purple Sage Before Time Began Last Lonely Eagle 1968-69 New Riders of the Purple Sage Before Time Began Cecilia 1968-69 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Date of Recording Hot Tuna 6 8 Song(s) Historic Live Tuna (taken from Classic Hot Tuna Acoustic) 4 5 Album 24 25 26 27 28 4 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page6 of 13 1 2 3 4 5 6 Artist Album Song(s) Date of Recording New Riders of the Purple Sage Before Time Began Garden of Eden 1968-69 New Riders of the Purple Sage Before Time Began Superman 1968-69 17. In order to stream music recordings to the public, Sony has reproduced and 7 copied, and continues to reproduce and copy, pre-1972 sound recordings, including to one or 8 more servers and storage devices, and uses technology or systems that result in a copy of pre- 9 1972 recordings being distributed to its subscribers’ computers or storage devices. 10 18. Sony is aware that it does not have any license, right, or authority to reproduce, 11 perform, distribute, or otherwise exploit via Music Unlimited any pre-1972 sound recordings, 12 including the Zenbu Recordings. 13 14 19. distributes or otherwise exploits via the Music Unlimited are pre-1972 sound recordings. CLASS ACTION ALLEGATIONS 15 16 Sony is also aware which of the recordings it reproduces, performs, and 20. Zenbu seeks to represent a class comprised of all owners of sound recordings of 17 musical performances that initially were “fixed” (i.e., recorded) prior to February 15, 1972, 18 which sound recordings were reproduced, performed, distributed, and/or otherwise exploited 19 by Sony via its Sony Music service, and for which Sony was not authorized or licensed to 20 reproduce, perform, distribute, or otherwise exploit. 21 21. Numerosity – The members in the proposed class are so numerous that 22 individual joinder of all members is impracticable, and the disposition of the claims of all 23 class members in a single action will provide substantial benefits to the parties and Court. 24 22. Commonality – Common questions of law and fact exist as to all members of 25 the putative class and subclass, which do not vary from member to member, and which may 26 be resolved without reference to individual facts and circumstances include, without 27 limitation: 28 5 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page7 of 13 1 a. 2 3 Whether Sony reproduced, performed, distributed or otherwise exploited via the Music Unlimited pre-1972 sound recordings; b. Whether Sony was authorized by the owners of the sound recording 4 copyrights to reproduce, perform, distribute, or otherwise exploit via 5 Music Unlimited pre-1972 sound recordings; 6 c. Whether Sony paid royalties or licensing fees for pre-1972 sound 7 recordings that it reproduced, performed, distributed, or otherwise 8 exploited via the Music Unlimited; 9 d. Whether Sony’s reproduction, performance, distribution, or other 10 exploitation via the Music Unlimited of pre-1972 sound recordings 11 constitutes a violation of Cal. Civ. Code § 980(a)(2); 12 e. Whether Sony’s reproduction, performance, distribution or other 13 exploitation via the Music Unlimited of pre-1972 sound recordings 14 constitutes an unfair business practice in violation of Cal. Bus. & Prof. 15 Code §§ 17200, et seq.; 16 f. Whether Sony’s reproduction, performance, distribution or other 17 exploitation via the Music Unlimited of pre-1972 sound recordings 18 constitutes misappropriation; 19 g. Whether Sony’s reproduction, performance, distribution or other 20 exploitation via the Music Unlimited of pre-1972 sound recordings 21 constitutes conversion; 22 h. The proper equitable, injunctive, and prospective relief; 23 i. The proper amount of actual or compensatory damages; 24 j. The proper amount of restitution or disgorgement; 25 k. The proper amount of punitive damages; and 26 l. The proper amount of reasonable litigation expenses and attorneys’ fees. 27 28 6 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page8 of 13 1 23. Typicality – Zenbu’s claims are typical of the claims of members of the class in 2 that they are based on the same underlying facts, events, and circumstances relating to Sony’s 3 conduct. Zenbu’s interests are consistent with, and not antagonistic to, those of the other class 4 members it seeks to represent. 5 24. Adequacy – Zenbu will fairly and adequately represent and protect the interests 6 of the class, has no interests incompatible with the interests of the class, and has retained 7 counsel competent and experienced in class action and music copyright litigation. 8 9 10 25. Predominance – Questions of law and fact common to the class predominate over any questions affecting only individual class members. 26. Superiority – Class treatment is superior to other options for resolution of the 11 controversy because individual litigation of the claims of all class members is impracticable. 12 The claims of the individual members of the class may range from small sums to larger sums. 13 For those class members with smaller claims, the expense and burden of individual litigation 14 may not justify pursuing the claims individually. Moreover, even if every class member could 15 afford to pursue individual litigation, that would greatly tax the court system, as well as 16 present potential for varying, inconsistent, or contradictory judgments, and magnify the delay 17 and expense to all parties and the court system resulting from multiple trials of the same 18 factual issues. 19 CAUSES OF ACTION 20 FIRST CAUSE OF ACTION 21 VIOLATION OF CAL. CIV. CODE § 980(a)(2) 22 23 24 27. Zenbu realleges and incorporates the allegations elsewhere in the Complaint as if fully set forth herein. 28. Pursuant to Cal. Civ. Code § 980(a)(2), Zenbu and members of the putative class 25 possess exclusive ownership interests in and to pre-1972 sound recordings, including the 26 artistic performances embodied in those recordings. 27 28 7 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page9 of 13 1 29. Through its unauthorized reproduction, performance, distribution, or other 2 exploitation via its Music Unlimited of pre-1972 sound recordings (including the Zenbu 3 Recordings), Sony has infringed Zenbu’s and the class members’ exclusive ownership 4 interests in and to the pre-1972 recordings, in violation of Cal. Civ. Code § 980(a)(2). 5 30. As a direct and proximate consequence of Sony’s violation of Cal. Civ. Code § 6 980(a)(2), Sony has received and retained money and value that rightfully belong to Zenbu 7 and members of the class. 8 9 10 31. As a direct and proximate consequence of Sony’s violation of Cal. Civ. Code § 980(a)(2), Zenbu and members of the class have been damaged in an amount that is not yet fully ascertained, but which likely is many millions of dollars. 11 SECOND CAUSE OF ACTION 12 VIOLATION OF CAL. BUS. & PROF. CODE §§ 17200 ET SEQ. 13 14 15 16 32. Zenbu realleges and incorporates the allegations elsewhere in the Complaint as if fully set forth herein. 33. The Unfair Competition Law prohibits any “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. 17 18 Unfair 34. Sony’s conduct as alleged herein was unfair because its conduct was immoral, 19 unethical, unscrupulous, or substantially injurious and the utility of its conduct, if any, did 20 not outweigh the gravity of the harm to its victims. 21 35. Sony’s conduct as alleged herein was also unfair because it violates public policy 22 as declared by specific constitutional, statutory, or regulatory provisions, including without 23 limitation Cal. Civ. Code § 980(a)(2). 24 25 26 Unlawful 36. Sony’s conduct as alleged herein was “unlawful” within the meaning of the UCL because it was in violation of Cal. Civ. Code § 980(a)(2). 27 28 8 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page10 of 13 1 THIRD CAUSE OF ACTION 2 MISAPPROPRIATION 3 4 37. Zenbu realleges and incorporates the allegations elsewhere in the Complaint as if fully set forth herein. 38. 5 Pursuant to Cal. Civ. Code § 980(a)(2) and California common law, Zenbu and 6 members of the class possess exclusive ownership interests in and to the pre-1972 sound 7 recordings, including the artistic performances embodied in those recordings. 39. 8 9 10 Zenbu and members of the class, and their predecessors in interest, invested substantial time and money developing the pre-1972 sound recordings reproduced, performed, distributed, and otherwise exploited by Sony via Music Unlimited. 40. 11 Because Sony does not obtain licenses to pre-1972 sound recordings, it does not 12 incur any of the costs that a licensee is otherwise obligated to pay in order to reproduce, 13 perform, distribute or otherwise exploit via the Music Unlimited pre-1972 recordings. 41. 14 Sony has misappropriated, and continues to misappropriate, for its own 15 commercial benefit, the exclusive ownership interests in and to the pre-1972 sound 16 recordings, by reproducing, performing, distributing, or otherwise exploiting via the Music 17 Unlimited pre-1972 recordings. 42. 18 As a direct and proximate consequence of Sony’s misappropriation, Sony has 19 received and retained money and value that rightfully belongs to Zenbu and members of the 20 class. 21 43. As a direct and proximate consequence of Sony’s violation of Cal. Civ. Code § 22 980(a)(2), Zenbu and members of the class have been damaged in an amount that is not yet 23 fully ascertained, but which likely is many millions of dollars. 24 44. Sony acted with oppression, fraud, or malice. Sony’s conduct was undertaken in 25 conscious disregard of the rights of Zenbu and each member of the class. Accordingly, Zenbu 26 and each member of the class is entitled to an award of punitive damages against Sony in an 27 28 9 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page11 of 13 1 amount sufficient to punish and make an example of Sony, so as to discourage Sony and 2 others from engaging in the same behavior in the future. 3 FOURTH CAUSE OF ACTION 4 CONVERSION 5 6 7 45. Zenbu realleges and incorporates the allegations elsewhere in the Complaint as if fully set forth herein. 46. Pursuant to Cal. Civ. Code § 980(a)(2) and California common law, Zenbu and 8 members of the class possess exclusive ownership interests in and to the pre-1972 sound 9 recordings, including the artistic performances embodied in those recordings. 10 47. By reproducing, performing, distributing or otherwise exploiting via the Music 11 Unlimited pre-1972 sound recordings, Sony has converted for its own use the property rights 12 of Zenbu and each member of the class, in the pre-1972 recordings, and has dispossessed 13 Zenbu and each member of the class of their property rights. 14 15 16 48. As a direct and proximate result of its conversion, Sony has received and retained money and value that rightfully belongs to Zenbu and members of the class. 49. As a direct and proximate consequence of Sony’s violation of Cal. Civ. Code § 17 980(a)(2), Zenbu and members of the class have been damaged in an amount that is not yet 18 fully ascertained, but which likely is many millions of dollars. 19 50. Sony acted with oppression, fraud, or malice. Sony’s conduct was undertaken in 20 conscious disregard of the rights of Zenbu and each member of the class. Accordingly, Zenbu 21 and each member of the class is entitled to an award of punitive damages against Sony in an 22 amount sufficient to punish and make an example of Sony, so as to discourage Sony and 23 others from engaging in the same behavior in the future. 24 25 PRAYER FOR RELIEF 51. Wherefore, Zenbu, on behalf of itself, all others similarly situated, and the 26 general public, prays for judgment against Sony as to each and every cause of action, 27 including: 28 10 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page12 of 13 1 a. An Order declaring this action to be a proper class action, appointing 2 Zenbu and its counsel to represent the class, and requiring Sony to bear 3 the cost of class notice; 4 b. An Order permanently enjoining Sony from, without license, reproducing, 5 performing, distributing, or otherwise exploiting via the Music Unlimited 6 pre-1972 sound recordings; 7 c. An Order permanently enjoining Sony, and its agents, servants, directors, 8 officers, principals, employees, representative, subsidiaries, parents, 9 affiliates, successors, assigns, and those acting in concert with them or at 10 their direction, from infringing, misappropriating, or converting, directly 11 or indirectly, Zenbu’s and the class members’ exclusive ownership 12 interests in and to the pre-1972 sound recordings, including the artistic 13 performances embodied in those recordings, including without limitation 14 by directly or indirectly reproducing, performing, distributing, or 15 otherwise exploiting via the Music Unlimited the pre-1972 recordings; 16 d. damages on any cause of action where such damages are allowable; 17 18 An Order requiring Sony to pay Zenbu and the class compensatory e. An Order requiring Sony to pay Zenbu and the class restitution to restore 19 all funds acquired by means of any act or practice declared by the Court 20 to be unlawful or unfair; 21 f. profits obtained by means of any wrongful or unlawful act or practice; 22 23 An Order requiring Sony to disgorge or return all monies, revenues, and g. An Order requiring Sony to pay punitive damages on any causes of action 24 so allowable if Zenbu proves Sony’s conduct was knowing, willful, 25 malicious, oppressive, or reckless; 26 27 h. An Order requiring Sony to pay pre- and post-judgment interest on any monetary amounts awarded; 28 11 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT Case3:15-cv-00310-EDL Document1 Filed01/22/15 Page13 of 13 1 i. 2 An Order requiring Sony to pay fees and costs, including reasonable attorneys’ fees, incurred in pursuing this action; and 3 j. An Order providing for all other such equitable relief as may be just and proper. 4 5 6 JURY DEMAND 52. Zenbu hereby demands a trial by jury on all issues so triable. 7 8 9 10 11 12 13 14 15 16 17 18 19 Dated: January 22, 2015 /s/ Jack Fitzgerald By: Jack Fitzgerald THE LAW OFFICE OF JACK FITZGERALD, PC JACK FITZGERALD (SBN 257370) jack@jackfitzgeraldlaw.com TREVOR M. FLYNN (SBN 253362) trevor@jackfitzgeraldlaw.com TRAN NGUYEN (SBN 301593) tran@jackfitzgeraldlaw.com Hillcrest Professional Building 3636 Fourth Avenue, Suite 202 San Diego, California 92103 Phone: (619) 692-3840 Fax: (619) 362-9555 Counsel for Plaintiff Zenbu Magazines LLC and the Putative Class 20 21 22 23 24 25 26 27 28 12 Zenbu Magazines LLC v. Sony Computer Entertainment America LLC et al., No. 15-cv-310 CLASS ACTION COMPLAINT