Yesh Music v. Amazon - First Amended Complaint PDF

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 1 of 41 PageID #: 405
Richard M. Garbarini (RG 5496)

GARBARINI FITZGERALD P.C.
250 Park Avenue 7th Floor
New York, New York 10177
Telephone: (212) 300-5358
Facsimile: (347) 218-9478
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
YESH MUSIC, LLC, and JOHN K. EMANUELE,
individually and on behalf of all other similarly
situated copyright holders,
Plaintiffs,
v.
Index No.: 16-cv-1406 (BMC)

FIRST AMENDED CLASS ACTION
COMPLAINT AND JURY DEMAND
FOR DAMAGES FOR COPYRIGHT
INFRINGEMENT AND
UNDERPAYMENT OF ROYALTIES
AMAZON.COM, INC., and AMAZON DIGITAL

SERVICES, INC.,
Defendants.
--------------------------------------------------------------x
Plaintiffs YESH MUSIC, LLC and JOHN EMANELE, by and through their attorneys at
GARBARINI FITZGERALD P.C., bring this First Amended Class Action Complaint and Jury Demand
against Defendants AMAZON.COM, INC. (AMAZON) and AMAZON DIGITAL SERVICES,
INC., (ADS) based on Defendants infringement of plaintiffs and the Putative Class
copyrighted musical works pursuant to the Copyright Act and Copyright Revisions Act, 17 U.S.C.
101 et seq. (the Copyright Act or Act), and defendants deliberate scheme to withhold
royalties owed plaintiffs and a Putative Class of copyright holders that received royalties.
NATURE OF THE ACTION

1.
Plaintiffs are the beneficial rights holders to one hundred and eighteen (118)
copyright registrations covering one hundred and forty eight (148) musical recording
2.
Defendant ADS owns and operates an internet music streaming service which is
subject to 115 of Title 17 of the United States Code (Amazon Music). As such, defendants were
required to serve a Notice of Intent to Obtain Compulsory License (NOI), in the form proscribed
by 37 CFR 201.18, within thirty (30) days from the date each copyrighted musical composition was
included on its service.
3.
Amazon Music can only be accessed through defendant AMAZONs Amazon
Prime product. Defendant AMAZON is one of the worlds largest retailers claiming it has 80
million subscribers for its Amazon Prime product.
4.
Defendants have jointly engaged in a systematic process of infringing the
copyrighted recordings of plaintiffs and the Putative Class by reproducing, publishing, and
transmitting the copyrighted recordings of plaintiffs and the Putative Class. Defendants failed to
serve a valid Notice of Intent for a Compulsory License (NOI) pursuant to Section 115 of the Act
prior to exploiting plaintiffs and the Putative Class recordings.
5.
When defendants launched Amazon Music in June 2014, they entered into blanket
agreements with the major and minor record labels for the rights, including the publishing rights, to their
catalogue of recordings. The major and minor record labels represent approximately 70% of the
recordings in the Amazon Music library.
6.
Defendants simply ignored their obligations to independent artists like plaintiffs
and the Putative Class.

7.
Defendants also artificially deflated their royalty payment obligations to almost
nothing by: (i) illegally manipulating the per stream royalty rate, (ii) miscalculating the all-in
payable royalty pool, (iii) obfuscating the nature of its service to qualify for a lower statutory per
user rate, (iv) deleting the run-times of 25-45% of the recordings on its service by classifying
them as unknown, (v) physically changed the run-times of some recordings to avoid paying
extra royalties, (vi) illegally allowing six month royalty free periods to students, (vii) failing to
include revenue in certain calculations and illegally excluded revenue in others, and (viii)
deleting stream information, or failing to report stream data, to the Professional Rights Organizations
(PROs) prior to payment.
8.
The laundry list of frauds, and misdeeds, perpetrated by the defendants shocks
the conscious. Defendants altered records, misstated information, and systematically infringed
the copyrighted recordings of plaintiffs and the Putative Class, while simultaneously engaging
in an illegal scheme to reduce its royalty obligations to almost nothing in violation of the
Copyright Act.
PARTIES
9.
At all times material hereto, Plaintiff Yesh Music, LLC (YESH) was, and is, a
limited liability company organized under the laws of the State of New York, with its principal
offices located at 75-10 197th Street, Flushing, New York. YESH is engaged in, among other
things, the business of music publishing and otherwise commercially exploiting its copyrighted
sound recordings of the band The American Dollar. The sole members of Plaintiff are Richard Cupolo
and John Emanuele, who are also the sole composers of the Copyrighted Compositions.
10.
At all times material hereto, Plaintiff John K. Emanuele (EMANUELE) was,
and is, an individual and resident of Queens. EMANUELE released two albums under the name
Zero Bedroom Apartment, which Defendant elected to exploit without service of an NOI or
payment of royalties.
11.
Upon information and belief, defendant AMAZON.COM, INC. (AMAZON), is
a Delaware corporation with its principal place of business in Seattle, Washington. AMAZON
owns and operates the Amazon.com website, and equivalent international websites. AMAZON
claims to have more than two hundred and fifty million active customers, and nearly eighty million
monthly subscribers who are allowed to access to Amazon Music purportedly for free.
12.
Upon information and belief, defendant AMAZON DIGITAL SEVICES, INC.
(ADS) is a Delaware corporation with its principal place of business in Seattle, Washington.
ADS owns and operates the Amazon Music website. ADS has no independent operation.
Instead, it is completely controlled in every manner by defendant AMAZON.
JURISDICTION AND VENUE
13.
The jurisdiction of this Court is based upon 28 U.S.C. 1331 and 1338 in that
this controversy arises under the Copyright Act and Copyright Revision Act of 1976 (17 U.S.C
101 et seq.). This action is a civil action over which this court has original jurisdiction.
14.
On information and belief, a substantial part of the facts of infringement
complained of herein occurs or has occurred in this district, and defendant is subject to personal
jurisdiction in this district because they maintain a headquarters in this district located at 7 West
34th Street, New York, NY.
15.
Personal jurisdiction over defendants is proper in this Court, among other reasons,
on the grounds that defendants, through their interactive web-based subscription service, caused the
unlicensed distribution of the plaintiffs and the Putative Class copyrighted recordings throughout the
State of New York, including within this judicial district.
16.
This Court has personal jurisdiction over defendants pursuant to CPLR 302
(New Yorks long-arm statute) due to their continuous and systematic business activities within
New York as described below. Defendants have conducted and do conduct business within New York.
Defendants, directly or through intermediaries (including distributors, retailers, and others), ship,
distribute, offer for sale, sell, and advertise products in the United States, and specifically to New York.
Defendants purposefully and voluntarily distributed and reproduce plaintiffs and the Putative Class
recordings in New York.
17.
Venue in this District is proper under 28 U.S.C. 1391(b) and (c) and/or 28
U.S.C. 1400(a).
18.
Plaintiffs have the right to bring the within action pursuant to 17 U.S.C. 501(b).
19.
The copyright in every musical composition at issue was registered in the United
States Copyright Office. 17 U.S.C. 409-412.

20.
Copies of each certificate issued by the U.S. Copyright Office to plaintiffs and
assignments registered with the U.S. Copyright Office are annexed and incorporated hereto
respectively as Exhibits A and B. Alternatively, the registrations for the groupings are attached
as Exhibit C.
21.
Each of plaintiffs copyrighted compositions was registered within three months
of publication, or thirty days prior to the infringement, and satisfy the registration prerequisite
under 17 U.S.C. 412(c).
CLASS ALLEGATIONS PUBLISHING CLASS
22.
Plaintiffs bring this action on behalf of themselves and on behalf of all other
similarly situated owners of the publishing a/k/a mechanical rights for registered musical
compositions, which were published on Defendants Amazon Music product on or after March
22, 2016.
23.
The Publishing Class is comprised of and defined as follows:

(a)
Plaintiffs and a Putative Class of artists are not subject to a blanket

license and who own the publishing rights to their recordings, and
submitted those recordings to defendant ADS through a third party

aggregator, and defendants elected to exploit the recordings on or after
March 22, 2013 (the "Putative Publishing Class").
24.
This action may be properly brought and maintained as a class action because
there is a well-defined community of interest in the litigation and the members of the proposed
class are clearly and easily ascertainable and identifiable.
25.
The class for whose benefit this action is brought is so numerous that joinder of
all class members is impracticable. Plaintiffs are informed and believe that there are thousands
of class members and that those class members can be readily ascertained from defendants
database files and records, and via discovery in this action.
26.
Upon information and belief, defendants have maintained records of the musical
compositions it publishes and/or distributes.

27.
The Putative Class Members can be readily located and notified of this action.
28.
The claims of plaintiffs are typical of the claims of the members of the Putative
Class, and their interests are consistent with and not antagonistic to those of the other Putative
Class members they seek to represent.
29.
Plaintiffs hold the rights to many copyrighted musical compositions which
Defendants have reproduced and/or distributed on or after March 22, 2013.

30.
Plaintiffs, and all members of the Putative Class, have sustained actual pecuniary
loss and face irreparable harm arising out of defendants continued infringement as complained
of herein.
31.
Plaintiffs have raised a viable copyright infringement claim of the type reasonably
expected to be raised by members of the Putative Class, and will vigorously pursue those claims.
32.
If necessary, plaintiffs may seek leave of the Court to amend this First Amended
Complaint to include additional class representatives to represent the Putative Class or additional
claims as may be appropriate.
33.
Plaintiffs are represented by experienced, qualified and competent counsel who is
committed to prosecuting this action.

34.
Common questions of fact and law exist as to all members of the class that
predominate over any questions affecting only individual members of the class.
35.
These common legal and factual questions, which do not vary from class member
to class member, and which may be determined without reference to the individual
circumstances of any class member include, without limitation, the following:
(a)
whether defendants have reproduced or distributed or otherwise exploited

via their Amazon Music service on or after March 22, 2013;
(b)
whether defendants have reproduced or distributed or otherwise exploited

plaintiffs and the Putative Class recordings via their Amazon Music service
without first obtaining a license or other required authorization;
(c)
whether defendants engaged in a system of materially altering

documents to obfuscate the infringements;
whether defendants unauthorized reproduction, distribution or other
exploitation of registered musical compositions was done willfully,
thereby entitling the members of the class to increased statutory
damages;
whether defendant AMAZON infringed the rights of all copyright
holders by offering albums for free if the subscriber applies for a credit
card;
the basis and method for determining and computing damages; and,
whether defendants conduct is continuing, thereby entitling
plaintiffs and members of the class to injunctive or other
relief.
(d)
(e)
(f)
(g)
36.
A class action is superior to other available methods for the fair and efficient
adjudication of this controversy since individual litigation of the claims of all class members is
impracticable.
37.
The claims of the individual members of the class may range from smaller sums to
larger sums, depending upon the number of infringements. Thus, for those Putative Class
members with smaller claims, the expense and burden of individual litigation may not justify
pursuing the claims individually. Even if every member of the class could afford to pursue
individual litigation, which is highly unlikely in the independent artist community, the court
system could not.
38.
It would be unduly burdensome to the courts in which individual litigation
of numerous cases would proceed. Individualized litigation would also present the potential
for varying, contradictory, or inconsistent judgments and would magnify the delay and
expense to all parties and to the court system resulting from multiple trials of the same
factual issues.
39.
On the other hand, the maintenance of this action as a class action presents
few management difficulties, conserves the resources of the parties and of the court system,
and protects the rights of each member of the class.
40.
Plaintiffs anticipate no difficulty in the management of this action as a class
action.
CLASS ALLEGATIONS ROYALTY CLASS
41.
Plaintiffs bring this action on behalf of themselves and on behalf of all other
similarly situated owners of mechanical rights for registered musical compositions, which
rights were improperly infringed by defendants systematic and unlawful reduction in the all-in
royalty pool, payable pool, and per-stream allocation.
42.
The Royalty Class is comprised of, and defined, as follows:

All owners of mechanical distribution and reproduction rights in
musical compositions registered under United States federal law, which
compositions were reproduced or distributed by defendants on or after
March 22, 2013.
43.
This action may be properly brought and maintained as a class action because
there is a well-defined community of interest in the litigation and the members of the proposed
class are clearly and easily ascertainable and identifiable.
44.
The Putative Class for whose benefit this action is brought is so numerous that
joinder of all class members is impracticable. Plaintiffs are informed and believe that there are
thousands of class members and that those class members can be readily ascertained from
defendants database files and records, and via discovery in this action.
45.
The members of the Royalty Class are so numerous that joinder of all members is
impracticable. While the exact number of Putative Class members is unknown at the present
time, it is estimated that there are thousands of members in the Putative Class.
46.
Despite the numerical size of the Putative Class, the identities of the Putative
Class members can be ascertained by mapping. Plaintiffs and their counsel do not anticipate any
difficulties in the management of this action as a class action.
47.
Plaintiffs will fairly and adequately represent the interests of the Class and are
committed to vigorously prosecute this action and have retained competent counsel experienced
in class action litigation.
48.
Plaintiffs are class members and have no interests antagonistic to or in conflict
with other Putative Class members.

49.
Plaintiffs are represented by attorneys who have extensive experience in
prosecuting class actions and will adequately represent the Putative Class in this action.
50.
Upon information and belief, defendants maintained records of the musical
compositions it distributed and the royalties paid.

51.
The Putative Class Members can be readily located from these records and
notified of this action.
52.
Plaintiffs and all members of the Royalty Class have sustained actual pecuniary
loss and face irreparable harm arising out of defendants systematic and unlawful diminution of
the royalty payments with accounting for those payments as described herein.
53.
Plaintiffs have raised a viable claim of the type reasonably expected to be raised
by members of the class, and will vigorously pursue those claims.

54.
If necessary, plaintiffs may seek leave of the Court to amend this First Amended
Complaint to include additional class representatives to represent the class or additional claims
as may be appropriate.
55.
Common questions of fact and law exist as to all members of the class that
predominate over any questions affecting only individual members of the class.
56.
These common legal and factual questions, which do not vary from class member
to class member, and which may be determined without reference to the individual
circumstances of any class member include, without limitation, the following:
(a)
(b)
(c)
whether defendants made accurate royalty payments for the

musical compositions it reproduced or distributed;
whether defendants routinely violates the promotional royalty rate
by allowing free streaming well in excess of 30 days, in fact, up to
180 days;
whether defendants failed to make the royalty calculations required in
good faith and on the basis of the best knowledge, information and
belief of the licensee at the time payment is due, and subject to the additional
accounting and certification requirements of 17 U.S.C. 115(c)(5) and
201.19;
(d)
(e)
(f)
(g)
whether defendants failed to provide a statement of account which

shall set forth each step of its calculations with sufficient information
to allow the copyright owner to assess the accuracy and manner in
which the licensee determined the payable royalty pool and per-play
allocations;
whether defendants failed to provide an accurate list of every stream of
a sound recording that occurred in the digital music service in that month
to these third party companies;
the basis and method for determining and computing damages; and,
whether defendants conduct is continuing, thereby entitling plaintiffs
and the members of the Putative Class to injunctive or other relief.
57.
A class action is superior to other available methods for the fair and efficient
adjudication of this controversy since individual litigation of the claims of all class members is
impracticable.
58.
The claims of the individual members of the class may range from smaller sums
to larger sums, depending upon the number of infringements. Thus, for those class members
with smaller claims, the expense and burden of individual litigation may not justify pursuing the
claims individually. Even if every member of the class could afford to pursue individual
litigation-which is highly unlikely in the independent artist community-the court system could
not.
59.
It would be unduly burdensome to the courts in which individual litigation of
numerous cases would proceed. Individualized litigation would also present the potential for
varying, contradictory, or inconsistent judgments and would magnify the delay and expense to
all parties and to the court system resulting from multiple trials of the same factual issues.
60.
On the other hand, the maintenance of this action as a class action presents few
management difficulties, conserves the resources of the parties and of the court system, and
protects the rights of each member of the class.
61.
Plaintiffs anticipate no difficulty in the management of this action as a class action.

GENERAL FACTS
62.
As a general proposition, a copyright confers on the owner the exclusive right to
reproduce the copyrighted Composition.
63.
Absent a license from the copyright owner, which the owner is free to grant or deny,
reproduction of the composition by another constitutes copyright infringement.
64.
When Congress enacted the Copyright Act of 1909, it was concerned that exclusivity
with respect to musical compositions would give rise to a great music monopoly. It therefore modified
the principle of exclusivity in the case of nondramatic musical Compositions by enacting a compulsory
license provision which, in defined circumstances, imposed upon the copyright owner a license permitting
the mechanical recording of the copyrighted song on such media as a phonograph record or a piano roll.
65.
Although recording technology has changed since 1909, licenses to record musical
compositions on such media continue to be called mechanical licenses.
66.
The compulsory mechanical license concept was carried forward in Section 115 of the
Copyright Act of 1976 which, generally speaking, permits one wishing to record a copyrighted
nondramatic musical Composition to do so in the absence of the copyright owner's consent in exchange
for payment of a statutory royalty.
67.
But the availability of compulsory mechanical licenses is dependent on the strict
limitations of Section 115(b)(1) of the Act which requires in pertinent part that [a]ny person who wishes
to obtain a compulsory license under this section shall, before or within thirty days after making, and
before distributing any phonorecords of the Composition, serve notice of intention to do so on the
copyright owner.
68.
Under section 115, those who seek to make and distribute reproductions of a musical
Composition may obtain a license to do so by serving a NOI on the copyright owner, no later than thirty
days after making, and before distributing, any phonorecords. 17 U.S.C. 115(b)(1). Once an entity has
served the NOI, which entity must provide statements of account and pay the statutorily prescribed
royalties on a monthly basis. 17 U.S.C. 115(c)(5).
69.
The name and address of the owner of the publishing rights is readily ascertained from
the third party aggregator who submits same with the recordings for review.
70.
If, for some reason, the name and address of the owner of a given composition cannot be
readily identified from the submission records, or the public records of the Copyright Office, the user may
file the NOI with the Copyright Office. 17 U.S.C. 115(b)(1). In that case, the user must pay a filing fee
to the Copyright Office but does not need to deposit royalties. See 17 U.S.C. 115(c)(1); 37 C.F.R.
201.18(f)(3).
71.
The content and method of service of the notice are prescribed by statute and regulation.
See 17 U.S.C. 115(b); 37 CFR 201.18. Defendants could have included all of the recordings submitted
by each plaintiff or member of the Putative Publishing Class in a single NOI.
72.
The tremendous power granted to defendants under Section 115 is balanced by the strict
obligations regarding notice. Defendants intentionally failed to adhere to its Section 115 obligations,
while enjoying all of the benefits afforded by Section 115.
73.
Section 115 of the Copyright Act governs compulsory mechanical licenses of
musical compositions, such that an owner of a musical composition is required to grant a nonexclusive license to anyone who wants to reproduce, offer, and distribute their recordings.
74.
Although the mechanical license is compulsory, specific rules must be followed to
obtain the license under the law.

75.
As for notice, "[a]ny person who wishes to obtain a compulsory license under
[Section 115] shall, before or within thirty days after making, and before distributing and
phonorecords of the work, serve notice of intention to do so on the copyright owner." Section 1l
5(b)[ 1]. The content and method of service of the notice are prescribed by statute and
regulation. 17 U.S.C. 115(b); 37 CFR 201.18.
76.
With respect to accounting and royalties, the person or entity who obtains a
compulsory license must make royalty payments, accompanied by a monthly statement of

account, to the copyright owner or authorized agent of the owner on or before the 21st day of
each month for every phonorecord made and distributed in accordance with the license. The
royalty rates are set by the Copyright Royalty Board.
Failure to Obtain a Mechanical License
77.
When a mechanical license is not obtained, the copyright owners of the songs and
the songwriters do not get paid for the reproduction and distribution of their music. For
songwriters, like plaintiffs, whose songs are not played on the radio, the royalties earned from
streaming revenue is often substantially the largest part of their income.
78.
Moreover, reproducing a song without a mechanical license is copyright
infringement which may not be cured after the fact by attempting to obtain a compulsory license.
Section 115 further provides that [flailure to serve or file the notice required by clause [1]
forecloses the possibility of a compulsory license and, in the absence of a negotiated license,
renders the making and distribution of phonorecords actionable as acts of infringement. ..
79.
Senate Report confirms:
80.
Of course, a digital transmission service would be liable for any infringing digital
phonorecord delivery it made in the absence of a compulsory license or the authorization of the
musical work copyright owner: Senate Report No. 104-128, S. Rep. 104-128 (1995) at 27
(emphasis added).
81.
The Senate Report further states:

If a record company grants a license under its rights in the sound
recording only, and does not grant a mechanical license under the
copyright in the musical work embodied in the sound recording, it
is the transmission service's responsibility to obtain a license
under the musical work copyright. Senate Report No. 104-128,
S. Rep. 104-128 (1995) at 31.
AGGREGATORS
82.
Aggregators like TuneCore, Distro Kid, or CD Baby, function exactly like a record label
for independent artists.
83.
When Amazon Music went live in June 2014, aggregators like TuneCore submitted most
of their catalogue for review. The artists does not know their recordings were submitted for review unless
they receive an NOI.
84.
After June 2014, the artist checks any one of approximately 30 internet stores, Amazon
Music being one, and the aggregator submits the master recordings to the selected stores.
85.
Each of the aggregators make it very clear that they do not convey the publishing rights.
86.
\After receipt of the master audition recordings from the aggregator, defendant may elect
to exploit the masters, or reject one or all of the sound recordings due to "technical or editorial
specifications.".
87.
If defendants elected to exploit the recordings, they were obligated to serve an NOI
within 30 days, and before distribution.
DEFENDANTS AMAZON AND ADS

88.
Defendant ADS owns and operates Amazon Music.
89.
Amazon Prime allows the subscriber to purchase permanent digital downloads
through Amazon MP3, store music in a digital locker through Amazon Locker, and stream
music as well as create a tethered download library of temporary digital downloads through
Amazon Music.
90.
Defendant AMAZON is believed to have 60-80 million subscribers to its Amazon
Prime product.
91.
Defendant ADS launched Amazon Music on or about June 21, 2014, which gave
paying Amazon Prime subscribers access to a library of songs for no additional cost and without
ads.
92.
Theres only one way to get Prime Music, and thats through an Amazon Prime
subscription, which, in the U.S., costs $99 for the entire year.
93.
In addition to free streaming music and tethered downloads, the Prime
subscription gives the subscriber, among other things:

Free two-day shipping to anywhere in the contiguous U.S. Free same-day
delivery is available to 16 metro areas across the country as long as your order
meets a few criteria.
Prime Pantry: Purchase grocery, household, and pet items to anywhere in the
contiguous U.S. for a flat delivery fee of $6.
Free Cloud Storage: for video, photo, and document files up to a limit of 5
GB. A viable alternative to services like Dropbox, OneDrive, and Google Drive.
Prime Photos: Unlimited photo storage with Amazon Cloud Drive. Photos
uploaded to the cloud will not count towards the storage limit of your account.
Stored photos may only be used for personal, non- commercial use.
Prime Video: TV and movie streaming service, like Netflix and Hulu. Has a
wide selection, plus a number of original series, which make it a great service
for cutting the cord.
Kindle First: Every month, you renew eBooks and you can choose to
download one of them for free. This usually covers several genres so theres
always something that might interest you. Only available to members in the
U.S.
Kindle Owners Lending Library: Every month, you can borrow one Kindle
eBook for free and read it on any Kindle-compatible device. There are no due
dates for borrowed eBooks and they can be returned at any time, but you must
return them before you can borrow another.
94.
If the potential subscriber has a .edu email address, the user can get a six-month
free trial and a 50% discount when the trial ends.

AMAZONS DIRECT INFRINGEMENT
95.
Defendant AMAZON directly infringed the below registrations by offering the
Plaintiff YESHs latest release for free if the user applied for an AMAZON credit card.
AMAZON had no license or authority for this use. All eleven registrations for the grouping
Across the Oceans, including the registration for the pre-released single Mosaic, have been
infringed.
THE NOIs SERVED WERE INVALID
96.
Pursuant to regulation Section 201.18(d)(2) of Title 37, defendant ADS was
required to make (2) A clear statement of the information listed in paragraph (d)(1) of this
section requires a clearly intelligible, legible, and unambiguous statement in the Notice itself and
without incorporation by reference of facts or information contained in other documents or
records.
97.
As an initial matter, defendant ADS empowered its agent MusicReports, Inc. to
serve NOIs and calculate and pay the publishing royalties.

98.
MusicReports operates a website accessed at <www.musicreports.com> which
allows artists to review their publishing royalties, as well as the NOIs which purportedly were
served.
99.
MusicReports, on behalf of defendants, materially altered the NOIs of plaintiffs
and the Putative Class to include numerous tracks from later releases.
100.
The deception is obvious upon investigation. First, some NOIs of plaintiff YESH
were not served but just appeared on the MusicReports website. Eight of the plaintiff YESHs
NOIs contain tracks released years after the NOI was purportedly served.
101.
Moreover, all ten of the NOIs that exist on Defendant ADS agents system
pertain to locker services and do not apply to the Amazon Music service. Only three of the
NOIs were served after the launch of Amazon Music. Those NOIs covered 17 tracks. At the
time the three NOIs were purportedly served, plaintiffs had all 148 copyrighted tracks up on the
Amazon Music service for at least 6 months.
102.
All ten NOIs clearly state on their face: Digital Phonorecord Deliveries, as set
forth in 17 U.S.C. Sec. 115 including, but not limited to, interactive streams and permanent
digital downloads associated with a paid locker service and/or a purchased content locker
service. (Emphasis added).
103.
Defendant AMS cannot convert the NOIs to fit whatever purpose they choose.
When the CRB created the five new products -- Limited Offerings, Mixed Service Bundles,
Music Bundles, Paid Locker Services and Purchased Content Locker Services, it required each
to comply with Section 115.
104.
Here, the undeniable purpose stated for the use all ten NOIs are associated with a
paid locker.
105.
The fact that defendant AMS included the statement but not limited to, does not
change the legal purpose because but not limited to is not a clear an unambiguous use as
required by law.
106.
As a direct result, all ten NOIs cannot be used to secure rights for the Amazon
Music Service.
107.
Further, the NOIs were untimely. The November 2015 NOI was uploaded to the
MusicReports system, but never mailed as required by law. They are all, therefore, facially
invalid.
108.
Defendants have infringed each of Plaintiffs 118 copyright registrations, and did
so with clear intent. Intent can be inferred from Defendants actions, and includes willful
blindness and reckless disregard to Plaintiffs rights.
109.
As of the date of this First Amended Complaint, defendants still have eleven of
YESHs copyrighted recordings available for streaming.

110.
Defendant was told NOI was ever received for these works, and defendants have
deliberately flaunted the law.
THE ALTERED NOIs

111.
As an initial matter, in June 2014, all of plaintiffs recordings were being actively
streamed. See Exhibit D.

112.
The majority of the recordings never appeared on NOI, making it inarguable that
defendant infringed those recordings.

113.
The majority of the recordings that appeared on the bogus Amazon NOIs were
added years after the NOI was purportedly served. It is inarguable that defendants have
infringed the registrations for those recordings.
114.
Only eleven tracks were purportedly timely covered, but the NOI on which those
tracks appear was never served.

115.
Eight of the subject NOIs are invalid because they were materially altered in an
attempt to deceive plaintiff YESH into believing its recordings on Defendant AMS Music
Service were there subject to a valid license.
116.
Defendant ADS, through its agent MusicReports, illegally added all of the
unlicensed recordings to the NOIs electronically stored on MusicReports servers.

117.
Defendants scheme is borne out through a simple analysis of the NOIs which
shows over 25% of the identified recordings on eight of the ten NOIs come from albums that
were released years after the NOI was served.
118.
The electronic NOIs are stored on the servers of Defendant ADS agent Music
Reports. Each month Music Reports creates a royalty calculation report for each copyright
holder that purportedly details the streaming data and identifies which previously served NOI
covers each track.
119.
Every month, before the reports are released, MusicReports, at the direction of
Defendants, makes sure every track is purportedly licensed. Instead of licensing the recordings
within 30 days in which they were made available as required by law, MusicReports waits until
the unlicensed track has been streamed at least once, and then adds that track to a previous NOI.
120.
This fraudulent scheme provides a compelling cover to mask the infringements.
A rights holder would have to go through an intensively time consuming analysis, as Plaintiffs
have done here, to comprehend the full extent of the depth of the Defendants violation of their
exclusive rights under the Act.
121.
In 2014, plaintiff contacted Defendants agent, MusicReports, and requested the
actual physical NOIs from MusicReports. Music reports employee, Jon Johnson, told plaintiff
that he was delighted to provide the requested documents. Approximately ten minutes after Mr.
Johnson agreed to provide the originals, R. Johnson sent an email rescinding the prior-approval.
122.
Jon Johnson reversed his position after speaking to his supervisor.
123.
The email, went as follows:
Jon Johnson <jjohnson@musicreports.com> Mon, Sep 22, 2014 at 9:19 PM To:

rcupolo2@gmail.com
Cc: americandollarband@yahoo.com
Hi Richard
Unfortunately, after speaking with my supervisor, we have determined that it would be
unfeasible to provide previously issued physical notices to your email as previously stated.
However, you can still download any electronic notices provided to you via your web
account.
Please let me know if you have any questions. Thank you for your time,
--
Jon Johnson
Royalty Services Specialist Music Reports, Inc.
Ph: 818-558-1400 x7010
Fx: 818-558-3474
jjohnson@musicreports.com http://www.musicreports.com (Attached as Exhibit E)
124.
Defendant fabricated the NOIs in order to cover defendants infringements.
125.
The first NOI bearing number 515947 dated May 31, 2012 had a purported
release date to Defendant ADS Locker Product of June 19, 2012 (the May 31, 2012 NOI).
Attached as Exhibit F.
126.
The May 31, 2012 NOI covered one track from one release, and was altered to
include thirteen track from YESH releases made available well after the NOI date:
2 tracks from The Best Of The American Dollar Volume 2 Ambient

December 20, 2012,
4 tracks from Music For Focus And Creativity December 10,
2013,
1 track from Music for Sleep, and
6 tracks from the Five Album Set released May 5, 2014.
127.
Obviously, a 2012 NOI cannot have 2014 recordings unless it was altered.
128.
The second NOI purportedly served on April 24, 2013 bearing number 547298
appears to be the go-to NOI for fraud (the April 24, 2013 NOI). This NOI has a release
date to Defendant ADSs Locker Product of May 6, 2013.
129.
The April 24, 2013 NOI contains the following tracks from releases made well
after the NOI date. In fact, this NOI contains 46 tracks from a release made almost a year after
its service date. Attached as Exhibit G.
22 tracks from Music for Focus and Creativity released
130.
December 10, 2014.

2 tracks from Music for sleep released December 12, 2013.
Amazingly, Defendant began distributing the above tracks on May 6, 2013, well
before Plaintiff YESH recorded them.

131.
The third NOI is dated May 21, 2013 and bears number 551475. The NOI claims
a date of first distribution to Defendants Locker Product of June 3, 2013. See Exhibit H.
Twenty four tracks on the May 21, 2013 NOI were on Defendants system from 2012. The
remaining tracks were released well after the NOI service date, to wit:
11 tracks from Music for Focus and Creativity released on December
10, 2013.
132.
The fourth NOI bearing No. 554858 is dated July 9, 2013 with a purported
release date to Defendant ADSs Locker Product of July 16, 2013 (the July 9, 2013 NOI).
Attached as Exhibit I.
133.
The July 9, 2013 NOI included:

1 track from The Best Of The American Dollar Volume 2 /December
20, 2012,
3 tracks from Music For Focus And Creativity December 10, 2013,
1 track from Music For Sleep released on December 12, 2013, and
1 track from Five Album Set + Eps, released on May 5, 2014.
134.
All of these releases, of course, were after the purported date the NOI was served.
135.
The fifth NOI, bearing No. 569297 is dated October 10, 2013 with a purported
release date onto defendants Locker Product of October 18, 2013 (the October 10, 2013
NOI). Attached as Exhibit J.
136.
The October 10, 2013 NOI covers three songs, each of which appeared on
numerous releases. The NOI lists one of the releases in which each of the songs appears is the
May 5, 2014 release titled Five Album Set + Bonus Eps.

137.
This release, of course, was seven months after the purported date the NOI was
138.
The October 10, 2013 NOI was also altered to included one track Plaintiff
served.
EMANUELE for the band Zero Bedroom Apartment, for the album Filmmuzik 2 which was
released to Defendant in October 2014.
139.
All of the tracks from Filmmuzik 2, however, were reproduced by defendant
ADS and made available on its system.

140.
The sixth purported NOI bearing No. 570843 is dated October 21, 2013 has a
purported release date to defendant ADS Locker Product of October 27, 2013 (the October
21, 2013 NOI.
141.
The October 21, 2013 NOI covered five songs, each of which was re-released 2-
3 times. (Attached as Exhibit K.) The NOI was altered to include each song on the following
releases:
3 tracks from the December 10, 2013 release titled Music For Focus
And Creativity,
3 tracks from the December 12, 2013 release titled Music For Sleep,
and
1 tracks from the May 5, 2014 release titled Five Album Set + Bonus
Eps.
142.
All of these release, of course, were after the purported date the NOI was served.
143.
All of the tracks on the NOI were available on defendants locker product years
before the NOI date.

144.
The seventh NOI bearing No. 585746 is dated April 7, 2014 with a purported
release date to Defendant ADSs Locker Product of April 7, 2014 (the April 7, 2014 NOI)
appears to be unaltered.
145.
The April 7, 2014 NOI covered four tracks which were re-released an average of
2.5 times in 5 groupings. The April 7, 2014 NOI has not been altered, to the best of plaintiffs
knowledge. This was the very NOI which was the subject of Rich Cupolos conversation with
Music Reports. Defendant knew Cupolo had the physical copy of the original.
146.
Every track, however, covered by the April 7, 2014 NOI had been used in
Defendants Locker Product for at least one year prior to the service date. Accordingly, the NOI
is facially invalid.
Post Music Report Launch NOIs
147.
Defendant ADS purportedly served three NOIs after the Amazon Music product
was launched in June 2014. Attached as Exhibit L.

148.
The NOIs covered thirteen tracks in total. Defendant, however, had been
streaming all of plaintiffs recordings for six months by the time the first NOI covering one
track arrived.
149.
The language of the NOIs, however, remained unchanged, and limited the use to
services associated with a locker.

150.
The first NOI was No. 611933 dated January 7, 2015 purportedly released one
track to Defendants Locker Product on January 7, 2015 (the January 7, 2015 NOI).
151.
The track, Intro, was on Defendants streaming service for six months prior to
the NOI. Moreover, the subject track was on defendants locker product for two years prior to
the NOI, and had been actively streamed throughout that period.
152.
The Second post-Amazon Music launch was No. 671937 dated November 2,
2015 with a purported release date to Defendant ADSs Locker Product of November 2, 2015
(the November 2, 2015 NOI).
153.
The November 2, 2015 NOI covered one track which was released twice. The
track, Intro, was on Defendant ADSs system for two years prior to the NOI service date.
Consequently, the November 2, 2015 NOI is facially invalid.
154.
The final NOI was never served. Plaintiffs discovered the NOI while reviewing
the electronic records

155.
Defendants purportedly released the NOI Number 676251 dated November 16,
2015 with a purported released to Defendant ADS Locker Product on November 16, 2015 (the
November 16, 2015 NOI).
156.
The November 16, 2015 NOI covered sixteen tracks. Twelve of those tracks are
on plaintiffs latest release which came out on December 10, 2015, and was released to
Defendant on November 10, 2015.
157.
The remaining four tracks on the November 16, 2015 NOI were on Defendant ADSs
system for two years prior to the service of the NOI, and were being streamed for two years as well.
Accordingly the NOI is invalid as to that track.
158.
Defendant directed its agent, Music Reports, to change the electronically stored
NOIs to ensure future copyright royalty statements show ever track is covered by an NOI.
159.
Worse, all NOIs are invalid because they pertain to Defendants Music Locker
product, not to Prime Music. Defendant has attempted to take invalid NOIs and materially alter
them to cover all of the tracks. There is no reason for recordings from a 2014 to be on a 2012
NOI. Defendant fabricated the NOIs, and has infringed Plaintiff YESHs exclusive rights under the Act
to 116 Registrations.
160.
It is impossible to tell which tracks, other than later releases, were added to the
NOIs. Based on Defendant ADS behavior, it is safe to assume the majority of tracks.
161.
All of Plaintiff YESH music was up on ADS system by December 2012 (with
the exception of the later releases.) All of the 2013-2014 NOIs are invalid as they claim to
compel a license for those tracks.
162.
All of Plaintiff Emanueles tracks were on Defendants system with no NOI.
163.
This level of deceit warrants an award to Plaintiffs and the Putative Class at the
very top of the range.

DEFENDANTS WERE WELL AWARE OF THEIR OBLIGATIONS
164.
Defendants were well aware of their legal obligation to serve NOIs prior to
distributing Plaintiffs and the Putative Class copyrighted recording.

165.
Defendants public statement to the CRB in 2014 stated:

Section 115 requires services to clear the underlying publishing rights
for newly released sound recordings before distributing them, but such a
task is nearly impossible in many cases...
***
***
***
the specter of statutory damages for failing to timely send NOIs under the
Section 115 licensing process exposes digital music service providers to
levels of risk that are not equitable under the circumstances.
See Exhibit M.
166.
Defendant AMAZON negotiated and signed off on the CRBs 2008 Adjustment
to Mechanical Royalties. Defendant won incredible concessions in that negotiation, including

the ability to serve the US Copyright Office if the artist could not be found.
167.
Defendants knew their legal obligations but elected to break the law rather than
comply.
168.
This type of behavior, predatory in nature, can only be addressed by an award at
the highest point of the statutory scale.

169.
Defendants also knew their agent MusicReports cannot, and certainly does not,
serve NOIs for every recording on the Amazon Music Service.

170.
MusicReports admitted that fact to the Copyright Royalty board. In an official
statement to the CRB dated May 23, 2014, MusicReports stated:

Regarding the licensing coverage of the Section 115 license: it is true, as
critics have pointed out, that it is not possible to license all of the tens of
millions of musical works in the typical digital music service catalog
using the Section 115 statutory license.
171.
Defendants knew exactly what was going on, but made a tactical business
decision. This is not the first time a class-action against AMAZON has been brought to remedy
the same behavior. See Blagman v. Apple, Inc. et al, No. 1:2012cv05453 (S.D.N.Y. 2012). This
is a clear indication of intent on the part of defendants.
ADS MIS-CALCULATED THE ALL-IN ROYALTY POOL
172.
Defendant was legally obligated to provide:

a detailed and step-by-step accounting of the calculation of royalties under
385.12, 385.22, or other provisions of part 385 of this title as applicable,
sufficient to allow the copyright owner to assess the manner in which the
licensee determined the royalty owed and the accuracy of the royalty
calculations, including but not limited to the following information:
(i)
(ii)
(iii)
173.
The number of plays, constructive plays, or other payable units, of

the relevant sound recording for the month covered by the
Monthly Statement for the relevant offering.
The total royalty payable for the month for the item described by
the set of information called for, and broken down as required, by
paragraph (c)(3) of this section (i.e., the per-work royalty
allocation for the relevant sound recording and offering).
The phonorecord identification information required by paragraph
(c)(3) of this section.
Defendant ADS violated the Act and supporting regulations each month
plaintiffs and the Putative Class received a royalty calculation report from Defendants agent
MusicReports.
174.
The MusicReports royalty calculation report consists of three aspects, the first
was recently a bogus certification from a purportedly independent small accounting firm Baker
Tilly Virchow Krause LLP.
175.
The Baker Tilly certification is, however, just a rouse. Amazon is responsible
for all assertions, Baker Tilly just checks their internal controls.
176.
It must be noted that Baker Tilly prepared the repots for Amazon ADS, but
relied on all of the assertions from ADS parent company.

177.
The Baker Tilly certification makes it appear as if the royalty reports are valid
and certified is an independent auditor. Again, Baker Tilly only certifies the calculation. See
Exhibit N.
178.
The second page consists of the royalty pool and per stream calculation page.
See Exhibit O.
179.
The third page is the detail report which highlights the fraud perpetuated by the
Defendant each and every month. See Exhibit P.

180.
Plaintiffs have not received a detailed report since 2014, or royalty payment.
181.
Defendant ADS has failed to provide information sufficient to determine if the
all-in royalty pool calculation is accurate, and this is impermissible under the Statute and
enacting regulations.
182.
Defendant ADS claims it is a Music Bundle for purposes calculating the all-in
royalty pool which would be the greater of the statutory per user rate of $.25 or 11.35% of
revenue (Defendant ADS, however, claims no revenue.)
183.
Defendant ADS is not, however, a music bundle. Through the Amazon Prime
product, the user cannot access multiple music services. Defendant ADS was obligated to use
the $.50 per user rate.
184.
Defendant can also calculate the pool as 21% of the service payments to record
companies if licenses are not pass through, or 17.36% of the service payments to record
companies if songs are pass through.
185.
The all-in royalty pool minus the payments paid for performance royalties equals
the payable royalty pool. The payable royalty pool divided by the total streams equals the perstream allocation rate.
186.
The per-stream allocation rate is how most artists survive. To allow defendants
to artificially deflate their per-stream allocation is worse than theft.

187.
If every company followed the defendants in its bogus calculations, many, most
of the entertainers, who rely on this revenue would no longer be able to make music.
188.
Examining a typical example of the calculation, it is readily apparent Defendant
ADS has woefully failed to provide the statutorily required information sufficient to establish its
calculation of the all-in royalty pool.
A
Service Revenue
B Service Revenue subject to

Promotional Royalty Rate
C Service Revenue subject to All-In
Royalty Calculation
D Number of Subscribers
E Label Payments, where label pays
publishing
F Label Payments, where service
pays publishing Performance Royalties
G Performance Royalties
H Applicable Service Revenue Rate
I
All-In Royalty, by Revenue
Calculation
J Applicable Per Subscriber Rate
K All-In Royalty, by Subscriber
Calculation
L Applicable Label Rate, where
label pays publishing
$0.00
N/A
AB
$0.00
4,435,288
$0.00
$4,664,503.00
C*H
D*J
$405,629.25
10.50%
$0.00
N/A
N/A
17.36%
M Applicable Label Rate, where

service pays publishing
N All-In Royalty, by Label Payment
M)
Calculation
O Applicable Service Type
Minimum Lesser of K or N
P All-In Royalty
O
Q Payable Pool, by All-In Royalty,
less Performance Royalties
R Subscriber Based Royalty Floor
Rate
S Payable Pool, by Subscriber
Based Royalty Floor
T Payable Royalty Pool
U Total Number of Plays, All
Musical Works
V Number of Plays subject to
Promotional Royalty Rate
W Number of Plays subject to
effective Per Play Rate
X Promotional Royalty Rate
155.
21.00%
(E * L) + (F *
$979,545.63
$979,545.63
Greater of I or
$979,545.63
PG
$573,916.38
D*R
25.00%
$1,108,822.00
Greater of Q
or S
$1,108,822.00
961,241,639.6
0.0
UV
961,241,639.6
$0.00
It is simply impossible for any individual receiving a royalty calculation report
from Defendant to ascertain whether Defendant ADS calculations are correct. Every calculation
Defendant made is predicated on the amount it pays for the sound recording royalties (Line F on
the chart).
156.
Defendant ADS offers no information about how it arrived at this number, and
no way to verify if it is correct.

157.
Plaintiff contacted TuneCore, the PRO that issues the sound recording royalties,
and requested back up information on how Defendant calculated the sound-recording pool.
158.
TuneCore informed Plaintiffs that this information cannot be provided, and is
confidential.
159.
So Defendant ADS bases every calculation concerning publishing royalties on a
number that is confidential. This does not satisfy the statute and Defendants obligations.
160.
Plaintiffs and the Putative Class also question the near extortionate reduction in
the royalties paid to the major labels. See http://www.billboard.com/biz/articles/news/digital- andmobile/5930330/amazon-lowballs-labels-with-insane-ly-puny-offer.

ZERO REVENUE MISCALCULATION
161.
Defendant AMAZON claims $0 revenue for the service, which is criminal. In or
around March 2014, AMAZON increased the price of its Prime Service from $79.00 to $99.00.
162.
The $20.00 increase was directly due to Prime Music and the planned Prime
163.
The $20.00 increase was the only way AMAZON could add the new services.
164.
AMAZON had to roll out the increase before Prime Music was released so it could offer
Video.
it as a free service months later.
165.
In February 2014, UBS analysts surveyed Amazon customers about Amazon
Prime renewal likelihood. Results showed 94 percent of Amazon Prime customers were likely to
renew at the $79 price point, but if price increased by $20, only 58 percent were likely to renew.
166.
What the UBS analysts were unaware of, is the fact that the increase would be
followed by the roll-out of free music and video services. The services were, of course, .not
free, they cost $20 per year.
167.
Rolling out Prime Music took six months in programing time alone. Defendants
had Prime Music in the testing phase on the date of the increase, and Prime Video in the
programming phase. Moving the increase to before the services were made available offers
significant benefits. First, it avoids subscribers trying to opt-out of the new service. It also
avoids the ill-will of associating the service with the increase. Finally, the defendant can create good-will
by offering a new free product for free.
168.
Splitting the increase between video and music, the actual revenue generated, and
all-in royalty pool would be:

65,000,0001 X 10
169.
54,166,666
11.35%
$6,147,916
The payable royalty pool is the all-in royalty pool minus the performance
royalties: $6,147,916 - $405,629.25 = $5,742,286.75

170.
The per-stream allocation is calculated equals .006.
171.
Defendant AMAZON reduced its lawful payable royalty pool from
$5,742,286.75 to $1,108,822.00.
172.
Defendant also availed itself of the incorrect per user statutory rate.
173.
All of the forgoing damaged the plaintiffs and the Putative Class.
AMAZON MIS-REPORTED STREAM DATA
174.
Defendant ADS goes to amazing lengths to avoid paying royalties.
175.
Defendant ADS made Plaintiff YESHs new single Mosaic and album Across
the Oceans available for streaming on November 10, 2015 and December 10, 2015 respectively.
176.
In the four months since the release of the single and ten other tracks they have
cumulatively been streamed over 1,000,000 times on other digital platforms.

177.
Defendant ADS has failed to report a single track was streamed on its Amazon
Music service in five months.

178.
This is an mpossibility because plaintiffs counsel has streamed the eleven
recordings multiple times on Amazon Music.
179.
A comparison of the information supplied by Defendant ADS to the two PROs
yields a dramatic difference in what ADS reports. See Exhibit Q.

Date
July 2015
180.
Sound Record Streams

(TuneCore)
13,383
Publishing Streams
(MusicReport)
6,371
August 2015
19,302
14,305
September 2015
19,296
15,736.2
October 2015
27,159
22,128
November 2015
10,693.60
December 2015
7,995
January 2016
2,714.60
The disparity in the numbers is from the systematic manipulation of track
information by MusicReports to eliminate those tracks related to recordings which no NOI was
served.
181.
182.
The numbers in the chart should be identical.

For example, in August 2015, TuneCore reported 7 entries for the song Age of
Wonder totaling 349 streams. Music Reports reported 156.6 streams.

183.
MusicReports is Defendant ADSs agent for NOI service. In addition to adding
new tracks, to old NOIs, MusicReports simply deleted the data from tracks not covered by an
NOI. It also attempted, at times, to add the stream information from an uncovered song to one
that was.
184.
Staying with August 2016, TuneCore reported 61 additional songs that were
streamed that MusicReports did not report. This means either Amazon directly, or Music Reports
on its behalf, deleted the stream data from 25% of the streams.
185.
In a transparent attempt to limit its liability, Defendant ADS, removed Plaintiffs
tracks from its library (with the exception of the latest group) at the apex of success for Plaintiff
YESHs tracks. The removal of the tracks coincides with the wave of publicity over Plaintiffs
case against Tidal. A guilty conscience is a terrible thing.
AMAZON REMOVED RUN-TIME INORMATION
186.
The run-time is the length of time it takes to play a given recording.
187.
Run times must be submitted with the recordings to AMAZON.
188.
Every sound recording on Prime Music shows the run-time.
189.
Mysteriously, defendant classifies the run times for over 30% of the recordings on
defendant ADS system as unknown.

190.
Taking Exhibit P as an example, the first of many glaring errors is the bogus
unknown playing time appears in 58 of the 263 entries.

191.
Defendant simply ignores the information its own system in order to reduce the
royalties paid to plaintiffs and the Putative Class.

192.
The run-time is important because, by statute, streaming rates increase for all
recordings over 5:00 minutes as follows:

d) Overtime adjustment. For purposes of the calculations in step 4 in
paragraph (b)(4) of this section only, for sound recordings of musical
works with a playing time of over 5 minutes, adjust the number of plays as
follows:
5:01 to 6:00 minutesEach play = 1.2 plays

193.
Plaintiff has eighteen recordings over 5:01 seconds (qualifying each one of those
eighteen tracks to the bonuses above).

194.
It is readily apparent that Defendant systematically deletes, alters, and marks as
unknown a large percentage of Plaintiffs recordings over 5:01 minutes.

195.
Defendant is well-aware that every recording on its Music System shows the run
196.
Plaintiffs and the Putative Class have been damaged by Defendant ADS
time.
manipulation of the run-time data in an amount to be proved at trial.

Defendant Impermissibly Provided Six Months Free Trial for Students
197.
Defendant AMAZON offers six months of free service to anyone with an .edu
198.
After the six months, the service is half of the normal price.
199.
This is a per se violation of 37 CFR 385.14(b) (3) which provides: The free trial
email.
period does not exceed 30 consecutive days per subscriber per two-year period.
200.
Plaintiffs and the Putative Class have been damaged by this in an amount to be
proven at trial.
FIRST CLAIM FOR RELIEF
COPYRIGHT INFRINGEMENT
201.
Plaintiffs and the Putative Class incorporate the allegations contained in the
preceding paragraphs as if set forth at length here.
202.
Defendants have, without a mechanical license under Section 115 from
plaintiffs or the Putative Class, reproduced and publicly performed and/or publicly distributed
plaintiffs Copyrighted Compositions through its interactive web-based subscription streaming
service.
203.
It cannot be disputed that the plaintiffs and the Putative Class have valid,
registered copyrights, and that defendants have reproduced and offered the Copyrighted
Compositions for streaming, including permanent and temporary digital download, without a
license, thus infringing plaintiffs and the Putative Class rights under Section 115 of the
Copyright Act. Irreparable injury is presumed here as plaintiffs and the Putative Class have
established a prima facie case of copyright infringement.
204.
Even after defendants were put on notice in a previous action in this Court just
three years ago, defendant elected to continue to reproduce and publicly perform and/or publicly
distribute plaintiffs Copyrighted Compositions through its subscription service.
205.
The making or the distribution, or both, of all Copyrighted Compositions without
the payment of royalties is actionable as acts of infringement under section 501 and fully subject
to the remedies provided by sections 502 through 506 and 509.
206.
Each time plaintiffs and Putative Class were deprived of their statutory royalty
entitlement, e.g., by non-payment of royalties, a distinct harm was done to Plaintiffs and the
Putative Class property interest.
207.
Defendants predatory conduct was clearly intentional within the meaning of
504(c)(2) for purposes of enhancing statutory damages. Defendants knew that their actions
constituted an infringement each time it failed to serve an NOI or make a royalty payment.
208.
Defendants knowledge may also be inferred from its conduct including the
reckless disregard of the Plaintiffs and Putative Class rights (rather than actual knowledge of
infringement), which suffices to warrant award of the enhanced damages.
209.
Every time defendants materially altered documents to cover their illegal
activity, they demonstrated the clear knowledge of the import of their acts.
210.
As a direct and proximate result of each of the Defendants infringement,
plaintiffs and the Putative Class have incurred damages, as described more fully above. Pursuant
to 37 C.F.R. 385, plaintiffs and the Putative Class are entitled to a per stream statutory
royalty rate of $.01 for interactive web-based streaming services like Defendant.
211.
Plaintiffs and the Putative Class may also elect to recover statutory damages
pursuant to 17 U.S.C. 504(c)(2) for willful infringement of up to $150,000, but not less than
$30,000, for each infringement of each copyright registration identified in Exhibit A and those
that will be produced for the Putative Class, as available under the law.
THERE IS A TREMENDOUS D
SECOND CLAIM FOR RELIEF COPYRIGHT INFRINGEMENT
212.
Plaintiffs incorporate the allegations contained in the preceding paragraphs as if
set forth at length here.

213.
Alternatively, while plaintiff YESH does not release traditional albums, in the
event this Honorable Court finds it does, Defendants have intentionally infringed the Copyright
Registrations identified in Exhibit B for the collections of compositions registered to plaintiffs.
214.
Defendant has, without a mechanical license under Section 115 from plaintiffs,
reproduced and publicly performed and/or publicly distributed plaintiffs Copyrighted

Compositions through its interactive web-based subscription streaming service.
215.
It cannot be disputed that the plaintiffs have valid, registered copyrights, and that
defendant has reproduced and offered the Copyrighted Compositions for streaming, including
permanent and temporary digital download, without a license, thus infringing plaintiffs rights
under Section 115 of the Copyright Act. Irreparable injury is presumed here as plaintiffs have
216.
Plaintiffs may also elect to recover statutory damages pursuant to 17 U.S.C.
504(c)(2) for willful infringement of up to $150,000, but not less than $30,000, for each
infringement of each copyright registration identified in Exhibit B, as available under the law.
SECOND CLAIM FOR RELIEF

COPYRIGHT INFRINGEMENT
217.
Plaintiffs incorporate the allegations contained in the preceding paragraphs as if
set forth at length here.

218.
Alternatively, while plaintiff YESH does not release traditional albums, in the
event this Honorable Court finds it does, Defendants have intentionally infringed the Copyright
Registrations identified in Exhibit B for the collections of compositions registered to plaintiffs.
219.
Defendant has, without a mechanical license under Section 115 from
plaintiffs, reproduced and publicly performed and/or publicly distributed plaintiffs Copyrighted
Compositions through its interactive web-based subscription streaming service.
220.
It cannot be disputed that the plaintiffs have valid, registered copyrights, and that
defendant has reproduced and offered the Copyrighted Compositions for streaming, including
permanent and temporary digital download, without a license, thus infringing plaintiffs rights
under Section 115 of the Copyright Act. Irreparable injury is presumed here as plaintiffs have
221.
Plaintiffs may also elect to recover statutory damages pursuant to 17 U.S.C.
504(c)(2) for willful infringement of up to $150,000, but not less than $30,000, for each
infringement of each copyright registration identified in Exhibit B, as available under the law.
THIRD CLAIM FOR RELIEF

(CONTRIBUTORY AND VICAROUS INFRINGEMENT
222.
Plaintiffs and the Putative Class reallege and incorporate by reference each and
every allegation contained in the preceding paragraphs with the same force and effect as if fully
set for that length herein.
223.
Defendant AMAZON had knowledge of the infringing activity, and induced,
caused or materially contributed to the infringing conduct of Defendant ADS.

224.
Defendant ADS had knowledge of the infringing activity, and induced, caused
or materially contributed to the infringing conduct of MusicReports.

225.
Defendant AMAZON has the right and ability to supervise the infringing
activity and also has a direct financial interest in the activity.

226.
Defendant ADS has the right and ability to supervise the infringing activity and
also has a direct financial interest in the activity.

227.
Plaintiffs and the Class Members have been damaged, and defendants have been
unjustly enriched, in an amount that is not as yet fully ascertained but which plaintiffs are
informed and believe is not less than $150,000 according to proof at trial.
PRAYER FOR
RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and on behalf of all other persons
similarly situated, respectfully prays for relief against Defendant as follows:
1.
Certify this matter as a class action;
2.
Enter an order appointing plaintiffs as class representative and plaintiffs
counsel as class counsel;

3.
Enter judgment in favor of plaintiffs and the Class;
4.
Enter injunctive and/or declaratory relief as is necessary to protect the

interests of plaintiffs and the Class (17 U.S.C. 502), including
enjoining defendant from continued copyright infringement and violations of
the relevant provisions of the Copyright Act;
5.
A temporary, preliminary, and permanent injunction enjoining and

restraining AMAZON and ADS, and their respective agents, servants,
directors, officers, principals, employees, representatives, subsidiaries and
affiliates, companies, successors, assigns, and those acting in concert with
them or at their direction, from further violations.
6.
Injunctive relief that requires AMAZON and ADS to pay for the services of a
third party auditor to identify the owners of all works reproduced and/or
distributed by defendants despite defendants failure to first obtain a mechanical
license prior to reproducing and/or distributing the Works, and further requiring
defendant ADS to remove all such unlicensed tracks from its services until it
obtains proper licenses for them;
7.
Restitution of Defendants unlawful proceeds, including Defendants gross

profits;
8.
Award compensatory damages to plaintiffs and the Putative Class in an amount

to be ascertained at trial;
9.
Award statutory damages to plaintiffs and the Putative Class according to

proof, including but not limited to all penalties authorized by the Copyright
Act (17 U.S.C. 504(c)(1), 504(c)(2));

10.
Award reasonable attorneys fees and costs (17 U.S.C. 505);
11.
Award plaintiffs and the putative Class pre- and post-judgment interest to
the extent allowable; and,
12.
Award such other and further relief that the Court may deem just
and proper.
JURY DEMAND
Plaintiffs hereby demand a trial by jury of all issues so triable.
Dated: May 27, 2016
GARBARINI FITZGERALD P.C.
__________________________
By: Richard M. Garbarini (RG 5496)
250 Park Avenue, 7th Floor
New York, New York 10177
Telephone: (212) 300-5358
Facsimile: (347) 218-9479

Yesh Music v. Amazon - First Amended Complaint PDF

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Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 1 of 41 PageID #: 405

Richard M. Garbarini (RG 5496)

Index No.: 16-cv-1406 (BMC)

AMAZON.COM, INC., and AMAZON DIGITAL

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 2 of 41 PageID #: 406

NATURE OF THE ACTION

Amazon Music can only be accessed through defendant AMAZONs Amazon

Defendants have jointly engaged in a systematic process of infringing the

Defendants simply ignored their obligations to independent artists like plaintiffs

and the Putative Class.

Defendants also artificially deflated their royalty payment obligations to almost

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 3 of 41 PageID #: 407

At all times material hereto, Plaintiff John K. Emanuele (EMANUELE) was,

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 4 of 41 PageID #: 408

Upon information and belief, defendant AMAZON.COM, INC. (AMAZON), is

Upon information and belief, defendant AMAZON DIGITAL SEVICES, INC.

On information and belief, a substantial part of the facts of infringement

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 5 of 41 PageID #: 409

States Copyright Office. 17 U.S.C. 409-412.

Each of plaintiffs copyrighted compositions was registered within three months

The Publishing Class is comprised of and defined as follows:

Plaintiffs and a Putative Class of artists are not subject to a blanket

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 6 of 41 PageID #: 410

submitted those recordings to defendant ADS through a third party

compositions it publishes and/or distributes.

Plaintiffs hold the rights to many copyrighted musical compositions which

Defendants have reproduced and/or distributed on or after March 22, 2013.

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 7 of 41 PageID #: 411

Plaintiffs are represented by experienced, qualified and competent counsel who is

committed to prosecuting this action.

whether defendants have reproduced or distributed or otherwise exploited

whether defendants have reproduced or distributed or otherwise exploited

whether defendants engaged in a system of materially altering

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 8 of 41 PageID #: 412

It would be unduly burdensome to the courts in which individual litigation

Plaintiffs anticipate no difficulty in the management of this action as a class

The Royalty Class is comprised of, and defined, as follows:

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 9 of 41 PageID #: 413

Plaintiffs are class members and have no interests antagonistic to or in conflict

with other Putative Class members.

Plaintiffs are represented by attorneys who have extensive experience in

Upon information and belief, defendants maintained records of the musical

compositions it distributed and the royalties paid.

notified of this action.

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 10 of 41 PageID #: 414

by members of the class, and will vigorously pursue those claims.

whether defendants made accurate royalty payments for the

whether defendants failed to provide a statement of account which

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 11 of 41 PageID #: 415

It would be unduly burdensome to the courts in which individual litigation of

Plaintiffs anticipate no difficulty in the management of this action as a class action.

As a general proposition, a copyright confers on the owner the exclusive right to

reproduce the copyrighted Composition.

reproduction of the composition by another constitutes copyright infringement.

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 12 of 41 PageID #: 416

compositions on such media continue to be called mechanical licenses.

But the availability of compulsory mechanical licenses is dependent on the strict

Case 1:16-cv-01406-BMC Document 15 Filed 05/27/16 Page 13 of 41 PageID #: 417

Section 115 of the Copyright Act governs compulsory mechanical licenses of

Although the mechanical license is compulsory, specific rules must be followed to

obtain the license under the law.

compulsory license must make royalty payments, accompanied by a monthly statement of