united states district court southern district of …case 1:13-cv-23182-kmm document 1 entered on...

1 HELLER WALDMAN, P.L.

3250 MARY STREET, SUITE 102 ● COCONUT GROVE, FLORIDA 33133

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No.______________________________-CV-____________________

FLO & EDDIE, INC., a California corporation, individually and on behalf of all others similarly situated,

Plaintiff, v. SIRIUS XM RADIO, INC., a Delaware corporation; and DOES 1 through 10,

Defendants.

/

CLASS ACTION COMPLAINT

Plaintiff FLO & EDDIE, INC. (“Plaintiff” or “Flo & Eddie”) files this class action

Complaint on behalf of itself and on behalf of all other similarly situated owners of sound

recordings of musical performances that initially were “fixed” (i.e., recorded) prior to February

15, 1972 (the “Pre-1972 Recordings”) against Defendants SIRIUS XM RADIO, INC.

(“Defendant” or “SiriusXM”) and DOES 1-10, and alleges as follows:

NATURE OF THE ACTION

1. Florida common law and statutory law provide protection for Pre-1972 Recordings

from their unauthorized reproduction, performance, distribution or other exploitation, and permit

the owners of Pre-1972 Recordings the right to bring the following separate claims for relief

against parties who engage in such unauthorized actions: (a) common law copyright

infringement; (b) common law misappropriation / unfair competition; (c) common law

conversion; and (d) civil theft under Fla. Stat. § 772.11 for violations of Fla. Stat. § 812.014(1).

A person commits common law copyright infringement of a sound recording not protected by the

US Copyright Act in Florida by doing, without the consent of the owner, anything which is the

sole right of the owner to do, including reproducing, distributing, performing or otherwise

exploiting such recording. The elements of a misappropriation / unfair competition claim

Case 1:13-cv-23182-KMM Document 1 Entered on FLSD Docket 09/03/2013 of 18

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HELLER WALDMAN, P.L.


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involving record piracy in Florida are: (A) time, labor and money expended by the Plaintiff; (B)

competition; and (C) commercial damage. A claim for conversion exists for a wrongful taking

of intangible interests in a business venture. Finally, Fla. Stat. § 812.014(1) provides that one is

liable for theft if one “knowingly obtains or uses the property of another with intent to

appropriate the property to his or her own use.” 1

2. The principals of Flo & Eddie, Mark Volman and Howard Kaylan, have been

performing together as The Turtles since 1965 and have recorded numerous iconic hits including

“Happy Together,” “It Ain’t Me Babe,” “She’d Rather Be With Me,” “You Baby,” “She’s My

Girl,” “Elenore,” and many others. Since approximately 1971, Flo & Eddie has owned the entire

catalog of 100 original master recordings by The Turtles, all of which were recorded prior to

February 15, 1972. Notwithstanding the absence of any license or authorization from Plaintiff,

The Turtles recordings can be heard every hour of every day by subscribers in Florida to the

satellite and Internet services owned by Defendant known as “Sirius Satellite Radio,” “XM

Satellite Radio” and “SiriusXM Satellite Radio” (individually and collectively, the “Service”).

Plaintiff Flo & Eddie brings this class action on its own behalf and on behalf of all other

similarly situated owners of Pre-1972 Recordings (the “Class” or “Class Members”) to put an

end to SiriusXM’s wholesale infringement, misappropriation / unfair competition, conversion

and civil theft of their Pre-1972 Recordings and to obtain damages, including punitive damages,

and injunctive relief.

3. The Service is a highly profitable business that engages in the large-scale

distribution and public performance of sound recordings to over 24 million subscribers. The

1 As set forth below, Plaintiff intends to amend this Complaint to add a claim for civil theft

pursuant to Fla. Stat. § 722.11 for violating Fla. Stat. § 812.014(1) in the event the letter attached

hereto as Exhibit B does not result in a return of the monies described therein.


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Service is distributed in Florida to its subscribers through (a) satellite digital transmission

directly to subscribers via digital radios manufactured or licensed by SiriusXM; (b) satellite

digital transmission to subscribers of other services, such as DIRECTV Satellite Television

Service and Dish Network Satellite Television Service via digital set top boxes manufactured or

licensed by DIRECTV or Dish; and (c) the Internet, by way of (i) digital media streaming

devices, such as Roku, digital radios and home audio systems, such as Sonos; (ii) its website at

www.SiriusXM.com; or (iii) computer, smart phone and other mobile applications for various

operating systems, including Apple iOS, Android, Windows, Blackberry and HP webOS. In

furtherance of the Service, SiriusXM, without any license or authority, has copied Plaintiff’s and

each Class Members’ Pre-1972 Recordings onto the Service’s central server(s) and makes such

copies available to its subscribers in Florida. SiriusXM publicly performs these recordings in

Florida via streaming audio transmission through the Service for a fee as part of a subscription

plan that currently includes up to 72 different music channels. As part of the Service, many

subscribers in Florida are also able to: (A) download the stream of a selected channel on the

Service, allowing later or multiple listenings of the sound recordings previously streamed during

the selected time period; (B) download particular sound recordings, allowing later or multiple

listenings of such sound recordings; (C) download particular programs incorporating sound

recordings as part of the Service’s “On Demand” feature, allowing later or multiple listenings of

such sound recordings; and (D) allow subscribers to pause, rewind and replay sound recordings

using the Service’s “Replay” feature.

4. Simply stated, SiriusXM has disregarded the Plaintiff’s and other Class Members’

exclusive ownership of their Pre-1972 Recordings in Florida, impaired their ability to sell,

license, lawfully exploit, or otherwise control their Pre-1972 Recordings as permitted under

Florida law, and misappropriated / unfairly competed, converted and stolen same for its own

financial gain. SiriusXM’s conduct is causing, and will continue to cause, enormous and


http://www.pandora.com/

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irreparable harm to Plaintiff and the other Class Members unless compensatory and punitive

damages are awarded against SiriusXM and it is enjoined and restrained from engaging in further

infringement, misappropriation / unfair competition, conversion and civil theft of the Pre-1972

Recordings.

THE PARTIES, JURISDICTION AND VENUE

5. Plaintiff Flo & Eddie is a corporation duly organized and existing under the laws of

California, with its principal place of business in Los Angeles, California. Plaintiff is engaged in

the business of distributing, selling, and/or licensing the reproduction, distribution, sale, and

performance of its Pre-1972 Recordings in phonorecords, in audiovisual works, and for

streaming (i.e., performing) and downloading over the Internet. Plaintiff invests substantial

money, time, effort, and creative talent in creating, advertising, promoting, selling and licensing

its unique and valuable sound recordings.

6. Plaintiff possesses exclusive ownership rights in The Turtles Pre-1972 Recordings,

the titles of which are specified on the schedule attached hereto as Exhibit A and incorporated

herein by reference (“Plaintiff’s Recordings”). The United States Congress expressly has

recognized that the states provide exclusive protection through various state law doctrines to

recordings initially “fixed” before February 15, 1972, and that the federal Copyright Act does not

“annul[] or limit[]those rights until February 15, 2067.” 17 U.S.C. § 301(c). Accordingly, as

quoted above, Florida law protects the exclusive ownership of Plaintiff and the other Class

Members to their Pre-1972 Recordings in Florida.

7. Upon information and belief, Defendant SiriusXM is a corporation duly organized

and existing under the laws of Delaware, with its principal place of business in New York, New

York. The Court has personal jurisdiction over Defendant in that Defendant has offices

throughout Florida, including, without limitation, in Miami, Jupiter, Deerfield Beach and Boca


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Raton, Defendant is engaged in tortious conduct in Florida, and Defendant’s conduct causes

injury to Plaintiff and the other Class Members in Florida.

8. This court has subject matter jurisdiction over the subject matter of this class action

pursuant to 28 U.S.C. § 1332(d). The amount in controversy exceeds Five Million Dollars

($5,000,000), there are more than one thousand (1,000) putative Class Members, and the

requisite minimal diversity of citizenship exists because Plaintiff and Defendant are citizens of

different States.

9. Venue of this action is proper in this jurisdiction under 28 U.S.C. § 1391(b) in that

Defendant maintains several offices in the Southern District of Florida and a substantial part of

the events giving rise to the claims alleged herein occurred in the Southern District of Florida.

10. The true names and capacities, whether individual, corporate, associate or

otherwise, of defendants named herein as Does 1 through 10, inclusive, are unknown to Plaintiff

who therefore sues said defendants by such fictitious names (the “Doe Defendants”). Plaintiff

will amend this Complaint to allege their true names and capacities when such have been

ascertained. Upon information and belief, each of the Doe Defendants herein is responsible in

some manner for the occurrences herein alleged, and Plaintiff’s injuries and those of the other

Class Members as herein alleged were proximately caused by such defendants’ acts or

omissions. (All of the Defendants, including the Doe Defendants, collectively are referred to as

“Defendants”).

CLASS ACTION ALLEGATIONS

11. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil

Procedure 23 on behalf of itself and the other Class Members defined as the owners of Pre-1972

Recordings reproduced, performed, distributed or otherwise exploited by Defendants in Florida

without a license or authorization to do so during the period from August 29, 2009 to the present.

Plaintiff reserves the right to modify this definition of the Class after further discovery; the Court


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may also be requested to utilize and certify subclasses in the interests of ascertainability,

manageability, justice and/or judicial economy.

12. 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 Class Members are readily and

easily ascertainable and identifiable from Defendant SiriusXM’s database files and records.

Plaintiff is informed and believes, and on that basis alleges, that Defendants have engaged a third

party to supply the metadata, including the metadata relating to Pre-1972 Recordings unlawfully

streamed to subscribers in Florida, and that such metadata contains the name and location of the

owners thereof. The Class members are further ascertainable through methods typical of class

action practice and procedure.

13. Plaintiff is informed and believes, and alleges thereon, that the Pre-1972

Recordings infringed, misappropriated / unfairly competed, converted and/or stolen in Florida by

Defendants number in the millions and are owned by many thousands of Class Members. It is

therefore impractical to join all of the Class Members as named Plaintiffs. Further, the claims of

the Class Members may range from smaller sums to larger sums. Accordingly, using the class

action mechanism is the most economically feasible means of determining and adjudicating the

merits of this litigation.

14. The claims of Plaintiff are typical of the claims of the Class Members, and

Plaintiff’s interests are consistent with and not antagonistic to those of the other Class Members

it seeks to represent. Plaintiff and the other Class Members have all been subject to

infringement, misappropriation / unfair competition, conversion and theft of their Pre-1972

Recordings in Florida, have sustained actual pecuniary loss and face irreparable harm from

Defendants’ continued infringement, misappropriation / unfair competition, conversion and theft

of their Pre-1972 Recordings.


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15. Plaintiff has no interests that are adverse to, or which conflict with, the interests of

the other Class Members and is ready and able to fairly and adequately represent and protect the

interests of the other Class Members. Plaintiff believes strongly in the protection of artists’

rights in connection with their creative work. Plaintiff has raised viable claims for infringement,

misappropriation / unfair competition, conversion and theft of the type well established in

Florida and reasonably expected to be raised by Class Members. Plaintiff will diligently pursue

those claims. If necessary, Plaintiff may seek leave of the Court to amend this Complaint to

include additional class representatives to represent the Class or additional claims as may be

appropriate. Plaintiff is represented by experienced, qualified and competent counsel who are

committed to prosecuting this action.

16. Common questions of fact and law exist as to all Class Members that plainly

predominate over any questions affecting only individual Class Members. 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 Defendant SiriusXM reproduced, performed, distributed or

otherwise exploited Pre-1972 Recordings in Florida;

(B) Whether Defendant SiriusXM’s reproduction, performance, distribution or

other exploitation of Pre-1972 Recordings in Florida constitutes common law copyright

infringement under Florida law;

(C) Whether Defendant SiriusXM’s reproduction, performance, distribution or

other exploitation of Pre-1972 Recordings in Florida constitutes misappropriation / unfair

competition under Florida law;


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(D) Whether Defendant SiriusXM’s reproduction, performance, distribution or

other exploitation of Pre-1972 Recordings in Florida constitutes conversion under Florida

law;

(E) Whether Defendant SiriusXM’s reproduction, performance, distribution or

other exploitation of Pre-1972 Recordings in Florida constitutes civil theft in violation of

Fla. Stat. §§ 722.11 and 812.014(1);

(F) The basis on which restitution and/or damages to all injured members of

the Class can be computed;

(G) Whether Defendant SiriusXM’s violation of Florida common law for

copyright infringement entitles the Class Members to recover punitive damages;

(H) Whether Defendant SiriusXM’s violation of Florida common law for

copyright infringement is continuing, thereby entitling Class Members to injunctive or

other equitable relief;

(I) Whether Defendant SiriusXM’s violation of Florida’s laws against

misappropriation / unfair competition entitles the Class Members to recover punitive

damages;

(J) Whether Defendant SiriusXM’s violation of Florida’s laws against

misappropriation / unfair competition is continuing, thereby entitling Class Members to

injunctive or other relief;

(K) Whether Defendant SiriusXM’s violation of Florida’s laws against

conversion entitles the Class Members to recover punitive damages;

(L) Whether Defendant SiriusXM’s violation of Florida’s laws against

conversion is continuing, thereby entitling Class Members to injunctive or other relief;


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(M) Whether Defendant SiriusXM’s violation of Fla. Stat. § 812.014(1) for

civil theft entitles the Class Members to recover treble the amount of compensatory

damages in accordance with Fla. Stat. § 772.11; and

(N) Whether Defendant SiriusXM’s violation of Fla. Stat. § 812.014(1) for

civil theft is continuing, thereby entitling Class Members to injunctive or other relief.

17. A class action is superior to all other available methods for the fair and efficient

adjudication of this controversy, since individual litigation of the claims of all Class Members is

highly impractical. Even if every Class Member could afford to pursue individual litigation, the

Court system could not. 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, inconsistent or contradictory 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. By contrast, maintenance of this action as a class action, with respect to some or all of

the issues presented herein, presents few management difficulties, conserves the resources of the

parties and of the court system, and protects the rights of each Class Member. Plaintiff

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

18. Additionally, the prosecution of separate actions by individual Class Members may

create a risk of adjudications with respect to them that would, as a practical matter, be dispositive

of the interests of the other Class Members not parties to such adjudications or that would

substantially impair or impede the ability of such nonparty Class Members to protect their

interests. The prosecution of individual actions by Class Members could establish inconsistent

results and incompatible standards of conduct for Defendant SiriusXM.

19. Defendants have engaged in common law copyright infringement, misappropriation

/ unfair competition, conversion and civil theft, which has affected all of the Class Members such

that final and injunctive relief on behalf of the Class as a whole is efficient and appropriate.


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FIRST CLAIM FOR RELIEF

(Common Law Copyright Infringement)

20. Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 19,

above, as though set forth in full herein.

21. The Pre-1972 Recordings are unique intellectual property subject to common law

copyright protection under the law of the State of Florida.

22. As the owners of valid common law copyrights or exclusive licensees in and to the

Pre-1972 Recordings, Plaintiff and the other Class Members possess the exclusive rights to

reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings, and license, or

refrain from licensing, others to do so.

23. Plaintiff and the other Class Members have not authorized or licensed Defendants

to reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings in any manner.

Defendants are not, and at all relevant times were not, entitled to or authorized to reproduce,

perform, distribute or otherwise exploit the Pre-1972 Recordings.

24. The reproduction, performance, distribution or other exploitation by Defendants of

unauthorized copies of the Pre-1972 Recordings, including, without limitation, Plaintiff’s

Recordings, constitute infringement of Plaintiff and the Other Class Member’s common law

copyrights in such recordings and violation of their exclusive rights therein. The Plaintiff and

Class Members have invested substantial time and money in the development of their Pre-1972

Recordings.

25. The Defendants have infringed the copyrights to the Pre-1972 Recordings at little

or no cost and without license or authority. They have copied the Pre-1972 Recordings owned

by Plaintiff and the other Class Members and publicly perform these recordings in Florida for

their subscribers as set forth in paragraph 3, above. Defendants have disregarded the Plaintiff’s

and other Class Members’ copyrights in and exclusive ownership of their Pre-1972 Recordings,


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impaired their ability to sell, lawfully exploit, or otherwise control their Pre-1972 Recordings, all

for their own financial gain.

26. As a direct and proximate consequence of Defendants’ copyright infringement of

the Pre-1972 Recordings owned by Plaintiff and the Class Members, Plaintiff and the Class

Members have been damaged in an amount that is not as yet fully ascertained but which Plaintiff

is informed and believes, and alleges thereon, exceeds $100,000,000, according to proof.

27. Plaintiff is informed and believes, and alleges thereon, that in engaging in the

conduct described above, the Defendants acted with oppression, fraud and/or malice. The

conduct of the Defendants has been despicable and undertaken in conscious disregard of the

Plaintiff’s and each Class Member’s rights. Accordingly, Plaintiff and the Class Members are

entitled to an award of punitive damages against Defendants in an amount sufficient to punish

and make an example of them according to proof.

28. Defendants’ conduct is causing, and unless enjoined and restrained by this Court,

will continue to cause, Plaintiff and each Class Member great and irreparable injury that cannot

fully be compensated or measured in money, and for which Plaintiff and each Class Member has

no adequate remedy at law. Plaintiff and the other Class Members are entitled to temporary,

preliminary and permanent injunctions, prohibiting further violation of Plaintiff’s and Class

Members’ rights in and exclusive ownership of their Pre-1972 Recordings in Florida.

SECOND CLAIM FOR RELIEF

(Misappropriation / Unfair Competition)


above, as though set forth herein.

30. Plaintiff and each Class Member are, and at relevant times were, the exclusive

owner of all right, title and interest in and to their Pre-1972 Recordings and possession thereof in

Florida.


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Defendants are not, and at all relevant times were not, entitled to or authorized to to reproduce,


32. Plaintiff and the Other Class Members have expended significant time, labor and

money in the making, marketing and distributing the Pre-1972 Recordings. Defendants have

paid nothing to Plaintiff or the Other Class Members for reproducing, performing, distributing or

otherwise exploiting the Pre-1972 Recordings. Without expending any time, labor or money of

its own, Defendants have simply appropriated the commercial qualities, reputation and salable

properties of the Pre-1972 Recordings, including, without limitation Plaintiff’s Recordings, by

unfairly and directly competing with Plaintiff and the other Class Members’ use, sale,

distribution and exploitation of the Pre-1972 Recordings. In so doing, Defendants have

undermined Plaintiff and the other Class Members’ substantial creative and financial investment

for Defendants’ own commercial benefit and have commercially damaged the market value of

the licenses Plaintiff and the Other Class Members are now and had been able to negotiate with

third parties to reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings.

33. Defendants have usurped for itself the fruits of Plaintiff and the other Class

Members’ financial and creative investments. Defendants are profiting from the results of

Plaintiff and the other Class Members’ expenditures and skill without having to incur any

expense or risk of its own in relation to the Pre-1972 Recordings. Furthermore, Defendants’

unauthorized use of the Pre-1972 Recordings is likely to cause confusion, mistake or deception

as to the source, sponsorship, affiliation or connection between Plaintiff and the other Class

Members, and Defendants.


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34. Defendants’ acts constitute a misappropriation of Plaintiff and the other Class

Members’ rights in and to the Pre-1972 Recordings, and constitute misappropriation and unfair

competition involving record piracy under Florida law.

35. As a direct and proximate result of Defendants’ misappropriation and unfair

competition, Plaintiff and the Class Members are entitled to recover all proceeds and other

compensation received or to be received by Defendants from their misappropriation and unfair

competition of the Pre-1972 Recordings. Plaintiff and the members of the Class have been

damaged, and Defendants have been unjustly enriched, in an amount that is not as yet fully

ascertained but which Plaintiff is informed and believes, and alleges thereon, exceeds

$100,000,000, according to proof at trial. Such damages and/or restitution and disgorgement

should include a declaration by this Court that Defendants are constructive trustees for the

benefit of Plaintiff and the other Class Members, and an order that Defendants convey to

Plaintiff and Class Members the gross receipts received or to be received that are attributable to

Defendants misappropriation of the Pre-1972 Recordings.


conduct as described above, the Defendants acted with oppression, fraud and/or malice. The

conduct of the Defendants has been despicable and undertaken in conscious disregard of

Plaintiff’s rights. Accordingly, Plaintiff and the Class Members are entitled to an award of

punitive damages against Defendants, and each of them, in an amount sufficient to punish and

make an example of them according to proof at trial.


will continue to cause, Plaintiff and the Class Members great and irreparable injury that cannot

fully be compensated or measured in money. Plaintiff and the other Class Members are entitled

to temporary, preliminary and permanent injunctions, prohibiting further violation of Plaintiff’s


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and the other Class Members right to exclusive ownership of their Pre-1972 Recordings and

further acts of unfair competition and misappropriation.

THIRD CLAIM FOR RELIEF

(Conversion)


above, as though set forth in full herein.



Florida.

40. Plaintiff and each Class Member have, and for all times relevant herein has had, an

intangible property interest in the time, effort and expense of producing the Pre-1972

Recordings. Additionally, as set forth in paragraphs 20 through 24 above, Plaintiff and each

Class Member have a common law copyright in each of the Pre-1972 Recordings.

41. Plaintiff and the Class Members created and produced the Pre-1972 Recordings as

part of a business venture to commercially reproduce, perform, distribute and otherwise exploit

the Pre-1972 Recordings.

42. By their acts and conduct alleged above, Defendants have converted Plaintiff’s and

the Class Members’ property rights in their Pre-1972 Recordings, including, without limitation

Plaintiff’s Recordings, for Defendants’ own use and wrongful disposition for financial gain.

43. As a direct and proximate result of Defendants’ conversion, Plaintiff and the

members of the Class have been damaged, and Defendants have been unjustly enriched, in an

amount that is not as yet fully ascertained but which Plaintiff is informed and believes, and

alleges thereon, exceeds $100,000,000 according to proof at trial. Defendants are constructive

trustees for the benefit of Plaintiff and Class Members, and the Court should order Defendants to


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convey to Plaintiff and the Class Members the gross receipts received or to be received from

Defendants conversion of the Pre-1972 Recordings.

44. Plaintiff is informed and believes, and based thereon alleges, that in engaging in the






45. Defendants’ conduct is causing, and unless enjoined and restrained by this Court


fully be compensated or measured in money. Plaintiff and each Class Member are entitled to

temporary, preliminary and permanent injunctions prohibiting further acts of conversion of their

Pre-1972 Recordings.

FOURTH CLAIM FOR RELIEF

(Civil Theft under Fla. Stat. § 772.11 for violations of Fla. Stat. § 812.014)

46. Plaintiff has submitted the demand letter attached hereto as Exhibit B required by

Fla. Stat. §772.11(1) before it can bring a claim for Civil Theft. As soon as the thirty (30) days

have run and assuming Defendants have not agreed to pay the amounts contained in that demand,

Plaintiff will amend this Complaint to add a claim for Civil Theft pursuant to Fla. Stat. §772.11.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of itself and the other Class Members, prays for

Judgment against Defendants, and each of them, as follows:

Regarding the Class Action:

1. That this is a proper class action maintainable pursuant to the applicable provisions of the

Federal Rules of Civil Procedure; and


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2. That the named Plaintiff is appropriate to be appointed representative of the respective

Class.

On The First Claim For Relief For Common Law Copyright Infringement against all

Defendants:

1. For compensatory damages in excess of $100,000,000 according to proof at trial;

2. Punitive and exemplary damages according to proof trial; and

3. A temporary, preliminary, and permanent injunction enjoining and restraining

Defendants, and their respective agents, servants, directors, officers, principals,

employees, representatives, subsidiaries and affiliated companies, successors, assigns,

and those acting in concert with them or at their direction, from directly or indirectly

infringing in any manner the copyrights in the Pre-1972 Recordings in Florida, including

without limitation by directly or indirectly copying, reproducing, downloading,

distributing, communicating to the public, uploading, linking to, transmitting, publicly

performing, or otherwise exploiting in any manner any of the Pre-1972 Recordings.

On The Second Claim For Relief For Misappropriation / Unfair Competition against all

Defendants:


2. Punitive and exemplary damages according to proof at trial;

3. Imposition of a constructive trust;

4. Restitution of Defendants’ unlawful proceeds, including Defendants’ gross profits; and






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misappropriating and/or unfairly competing in any manner the Pre-1972 Recordings in

Florida, including without limitation by directly or indirectly copying, reproducing,

downloading, distributing, communicating to the public, uploading, linking to,

transmitting, publicly performing, or otherwise exploiting in any manner any of the Pre-

1972 Recordings.

On the Third Claim For Relief For Conversion against all Defendants:









converting in any manner the Pre-1972 Recordings in Florida, including without

limitation by directly or indirectly copying, reproducing, downloading, distributing,

communicating to the public, uploading, linking to, transmitting, publicly performing, or

otherwise exploiting in any manner any of the Pre-1972 Recordings.

On All Causes of Action:

1. For reasonable attorneys’ fees and costs as permitted by law;

2. For prejudgement interest at the legal rate; and

3. For such other and further relief as the Court deems just and proper.


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JURY TRIAL DEMAND

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff and the Class

Members demand a trial by jury on claims alleged in this Complaint.

DATED: September 3, 2013

Respectfully submitted,


Attorneys for FLO & EDDIE, INC.

3250 Mary Street, Suite 102

Coconut Grove, Florida 33133

Telephone: (305) 448-4144 Telecopier: (305) 448-4155 By: s/Glen H. Waldman

Glen H. Waldman, Esq. Fla. Bar No. 618624 Eleanor T. Barnett, Esq. Fla. Bar No. 0355630 Jason Gordon, Esq. Fla. Bar No. 0012973

Henry Gradstein (pro hac vice motion will be filed once a case number has been assigned) Maryann R. Marzano (pro hac vice motion will be filed once a case number has been assigned) Robert E. Allen (pro hac vice motion will be filed once a case number has been assigned) GRADSTEIN & MARZANO, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, California 90048 Telephone: (323) 776-3100 Fax: (323) 931-4990 And

Evan S. Cohen (pro hac vice motion will be filed once a case number has been assigned) 1180 South Beverly Drive, Suite 510 Los Angeles, California 90035 Telephone: (310) 556-9800 Fax: (310) 556-9801


US_ACTIVE:\44367133\10\76061.0012

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION Case 1:13-CV-23182 (Moore)

-----------------------------------------------------------------x FLO & EDDIE, INC., individually and on behalf of all others similarly situated, Plaintiff, -against- SIRIUS XM RADIO INC., and DOES 1 through 10, Defendants. -----------------------------------------------------------------x

DEFENDANT SIRIUS XM’S PARTIAL MOTION TO DISMISS PLA INTIFF’S COMPLAINT AND SUPPORTING MEMORANDUM OF LAW

Case 1:13-cv-23182-KMM Document 27 Entered on FLSD Docket 11/14/2013 Page 1 of 29

TABLE OF CONTENTS

Page

i US_ACTIVE:\44367133\10\76061.0012

MOTION..........................................................................................................................................1

MEMORANDUM OF LAW ...........................................................................................................1

I. PRELIMINARY STATEMENT ...............................................................................................1

II. BACKGROUND .......................................................................................................................3

III. ARGUMENT .............................................................................................................................6

THERE IS NO PUBLIC PERFORMANCE RIGHT FOR PRE-1972 RECORDINGS UNDER FLORIDA LAW ............................................................................6

A. The History of Failed Efforts by the Recording Industry To Obtain a Right of Public Performance for Sound Recordings................................................7

B. Sirius XM’s Public Performance of Plaintiff’s Pre-1972 Recordings Does Not Constitute Common Law Copyright Infringement ................................10

C. Sirius XM’s Public Performance of Plaintiff’s Pre-1972 Recordings Does Not Constitute Unfair Competition ..............................................................12

1. Plaintiff Has Failed to Plead Deceptive or Fraudulent Conduct or a Likelihood of Consumer Confusion ...................................................13

2. Plaintiff Has Failed to Plead That It Competes With Sirius XM as a Broadcaster .........................................................................................14

D. Sirius XM’s Public Performance of Plaintiff’s Pre-1972 Recordings Does Not Constitute Conversion ...........................................................................18

IV. CONCLUSION ........................................................................................................................20


ii US_ACTIVE:\44367133\10\76061.0012

TABLE OF AUTHORITIES

Page(s)

Cases

Agee v. Paramount Commc’ns, 59 F.3d 317 (2d Cir. 1995).................................................................................................17, 18

Arista Records, LLC v. Launch Media, Inc., 578 F.3d 148 (2d Cir. 2009).......................................................................................................4

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................................... passim

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .....................................................................................................13, 16, 20

Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 444 F.3d 1356 (Fed. Cir. 2006)................................................................................................16

Carnival Corp. v. Rolls-Royce PLC, No. 08-23318-CIV, 2009 WL 3861450 (S.D. Fla. Nov. 17, 2009) ...........................................7

CBS, Inc. v. Garrod, 622 F. Supp. 532 (M.D. Fla. 1985) .................................................................................. passim

Clever Covers, Inc. v. Storm Guard, Inc., No. 806CV1062T27MAP, 2006 WL 2691759 (M.D. Fla. Sept. 20, 2006) ............................15

DeSilva Constr. Corp. v. Herrald, 213 F. Supp. 184 (M.D. Fla. 1962) ....................................................................................11, 12

Donald Frederick Evans & Assocs., Inc. v. Cont’l Homes, Inc., 785 F.2d 897 (11th Cir. 1986) .................................................................................................12

Ediciones Musicales Y Representaciones Internacionales, S.A. v. San Martin, 582 F. Supp. 2d 1358 (S.D. Fla. 2008) ....................................................................................14

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-CV-5784 (CM) (S.D.N.Y. Aug. 15, 2013) ....................................................................6

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. BC 517032 (Cal. Super. Ct. L.A. Cnty. Aug. 1, 2013) .......................................................6

Gary v. D. Agustini & Asociados, S.A., 865 F. Supp. 818 (S.D. Fla. 1994) .............................................................................................8


TABLE OF AUTHORITIES (continued)

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Hill v. Celebrity Cruises, Inc., No. 09–23815–CIV, 2011 WL 9379007 (S.D. Fla. July 11, 2011) ...........................................7

Hill v. Opus Corp., 841 F. Supp. 2d 1070 (C.D. Cal. 2011) .....................................................................................7

Hogan v. Provident Life & Acc. Ins. Co., No. 6:08-cv-1897-Orl-19KRS, 2009 WL 2169850 (M.D. Fla. July 20, 2009) .......................20

Home Design Servs., Inc. v. Park Square Enters., Inc., No. 6:02-CV-637-ORL28JGG, 6:03-CV-595-ORL28JGG, 2005 WL 1027370 (M.D. Fla. May 2, 2005) ...............................................................................................................15, 16

In re Aqua Clear Techs., Inc., 361 B.R. 567 (Bankr. S.D. Fla. 2007)......................................................................................20

In re Corbin’s Estate, 391 So. 2d 731 (Fla. Dist. Ct. App. 1980) ...............................................................................20

Int’l Tape Mfrs. Ass’n v. Gerstein, 344 F. Supp. 38 (S.D. Fla. 1972) .............................................................................................11

Kisling v. Rothschild, 388 So. 2d 1310 (Fla. Dist. Ct. App. 1980) .............................................................................11

Larach v. Standard Chartered Bank Int’l (Am.) Ltd., 724 F. Supp. 2d 1228 (S.D. Fla. 2010) ......................................................................................8

Leggins v. Orlando Hous. Auth., No. 6:13-cv-232-Orl-37DAB, 2013 WL 937739 (M.D. Fla. Mar. 11, 2013)............................8

M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990) ...............................................................................................12

Magical Mile, Inc. v. Benowitz, 510 F. Supp. 2d 1085 (S.D. Fla. 2007) ..............................................................................12, 13

Manasa v. Univ. of Miami, 320 So. 2d 467 (Fla. Dist. Ct. App. 1975) ...............................................................................11

Mfg. Research Corp. v. Greenlee Tool Co., 693 F.2d 1037 (11th Cir. 1982) ...............................................................................................17



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Marine Transp. Servs. Sea-Barge Grp., Inc. v. Python High Performance Marine Corp., 16 F.3d 1133 (11th Cir. 1994) .................................................................................................19

Murrell v. Trio Towing Serv., Inc., 294 So. 2d 331 (Fla. Dist. Ct. App. 1974) ...............................................................................19

Nat’l Union Fire Ins. Co. v. Carib Aviation, Inc., 759 F.2d 873 (11th Cir. 1985) .................................................................................................18

Neva, Inc. v. Christian Duplications Int'l, Inc., 743 F. Supp. 1533 (M.D. Fla. 1990) ........................................................................................11

Practice Mgmt. Assocs., Inc. v. Old Dominion Ins. Co., 601 So. 2d 587 (Fla. Dist. Ct. App. 1992) (per curiam) ..........................................................15

Rochelle Asparagus Co. v. Princeville Canning Co., 170 F. Supp. 809 (D.C. Ill. 1959) ............................................................................................12

Schism v. United States, 972 F. Supp. 1398 (N.D. Fla. 1997)...........................................................................................8

Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd., 450 So. 2d 1157 (Fla. Dist. Ct. App. 1984) .............................................................................19

Shelby Mut. Ins. Co. of Shelby, Ohio v. Crain Press, Inc., 481 So. 2d 501 (Fla. Dist. Ct. App. 1985) ...............................................................................18

Small Bus. Admin. v. Echevarria, 864 F. Supp. 1254 (S.D. Fla. 1994) ...................................................................................18, 19

SmokEnders, Inc. v. Smoke No More, Inc., 184 U.S.P.Q. 309 (S.D. Fla. 1974) ..........................................................................................12

Stagg Shop of Miami, Inc. v. Moss, 120 So. 2d 39 (Fla. Dist. Ct. App. 1960) .................................................................................13

Star Fruit Co. v. Eagle Lake Growers, 33 So. 2d 858 (Fla. 1948)...................................................................................................18, 19

Third Party Verification v. Signaturelink, 492 F. Supp. 2d 1314 (M.D. Fla. 2007) ...................................................................................15



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Van Dusen v. Se. First Nat’l Bank, 478 So. 2d 82 (Fla. Dist. Ct. App. 1985) .................................................................................12

Workplace Corp. v. Office Depot, Inc., No. 89-1485-CIV-T-13A, 1990 WL 106727 (M.D. Fla. June 5, 1990) ............................14, 15

Statutes

17 U.S.C. § 102 ................................................................................................................................4

17 U.S.C. § 106 ..................................................................................................................4, 5, 8, 10

17 U.S.C. § 114 ............................................................................................................................5, 8

17 U.S.C. § 301 ............................................................................................................................4, 5

Act of Jan. 6, 1897, 29 Stat. 481 ......................................................................................................4

Fla. Stat. § 768.72 ..........................................................................................................................20

Pub. L. No. 92-140, 85 Stat. 391 (1971) ......................................................................................4, 8

Pub. L. No. 104-39 § 2(3), 109 Stat. 336 (1995) .......................................................................5, 10

Other Authorities

117 Cong. Rec. 2002 (Feb. 8, 1971) ................................................................................................8

55 Fla. Jur. 2d Trademarks & Unfair Competition § 22 ................................................................12

Authorizing a Composer’s Royalty in Revenues from Coin-operated Machines and to Establish a Right of Copyright in Artistic Interpretations: Hearings Before Subcomm. on Patents, Trade-marks, and Copyrights of the Comm. on the Judiciary on H.R. 1269, H.R. 1207, and H.R. 2570, 80th Cong., 1st Sess. (Comm. Print 1947) ...........................9

Economic Conditions in the Performing Arts: Hearings Before the Select Subcomm. on Ed. of the Comm. on Ed. and Labor, 87th Cong., 1st & 2d Sess. (Comm. Print 1962) ............9

Fed. R. Civ. P. 8 .............................................................................................................................13

Fed. R. Civ. P. 12 .........................................................................................................................1, 7

Fed. R. Civ. P. 56 .............................................................................................................................7



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H.R. Rep. No. 92-487 (1971) ...........................................................................................................8

H.R. Rep. No. 104-274 (1995) .....................................................................................................8, 9

Plaintiff’s Response to Defendant, Sirius XM Inc.’s, Motion to Transfer Venue, Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 1:13-cv-23182 (KMM) (S.D. Fla. Oct. 28, 2013), ECF No. 23 ...........................................................................................................2, 3, 14

Revision of Copyright Laws: Hearings Before the Comm. on Patents, 74th Cong., 2d Sess. (Comm. Print 1936) ..........................................................................................................9

S. Rep. No. 92-72 (1971) .................................................................................................................8

Second Supplementary Register’s Report on the General Revision of the U.S. Copyright Law (1975), available at Melville B. Nimmer & David Nimmer, 9 Nimmer on Copyright, App. 16 (Lexis 2013) .............................................................................................10

Testimony of Jason S. Berman Chairman and CEO of RIAA Before the Judiciary Subcomm. on Counts & Intellectual Property: Hearing on H.R. 1506, (June 21, 1995) 1995 WL 371088 (Westlaw) ....................................................................................................10

Testimony of the NAB Before the House Judiciary Comm. Subcomm. on Courts & Intellectual Property on H.R. 1506 (June 21, 1995), 1995 WL 371107 (Westlaw) ................10


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MOTION

Defendant Sirius XM Radio Inc. (“Sirius XM”) hereby respectfully moves the Court to

dismiss the Complaint of Flo & Eddie, Inc. (“Plaintiff”) pursuant to Federal Rule of Civil

Procedure 12(b)(6) to the extent the Complaint is premised on Sirius XM’s public performance

of Plaintiff’s sound recordings. Since Florida law does not provide, and has never provided,

owners of sound recordings with a right of public performance, for the reasons set forth in more

detail in the Memorandum of Law below, partial dismissal is warranted.

MEMORANDUM OF LAW

I. PRELIMINARY STATEMENT

By this action, Plaintiff, the owner of sound recordings made nearly fifty years ago and

publicly performed widely ever since by myriad broadcast and other outlets, asks this Court to

radically transform the scope of protection accorded to sound recordings under Florida law.

Plaintiff asks the Court to recognize an exclusive right of public performance under Florida law

for sound recordings created before February 15, 1972 (“Pre-1972 Recordings”) in the absence

of any authority recognizing such a right. The result Plaintiff seeks would dramatically expand

Florida law and unravel a century of contrary understandings between the music and

broadcasting industries. Worse, it would immediately turn each radio and television broadcaster,

webcaster, nightclub, retail establishment, fitness center, and the like that performs such

recordings in Florida into a serial copyright infringer. This overt effort to use Florida law as a

means of providing record companies with windfall recoveries from broadcasters or other music

users arising out of performances of such sound recordings, having no basis in law, should be

rejected at the outset of this litigation. Doing so will avoid both needless expense and Plaintiff’s

hoped-for in terrorem effect associated with retaining this critical element of Plaintiff’s case.


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Plaintiff alleges that since 1971 it has owned some 100 master recordings of songs by

The Turtles. Compl. ¶ 2. It concedes that none of these sound recordings is entitled to

protection under federal copyright law, as the Copyright Act only affords certain protections to

sound recordings made on or after February 15, 1972, and each of the sound recordings at issue

here was made before that date. Id. Bereft of rights under federal law, Plaintiff (a) asserts that

Sirius XM’s broadcasts of Pre-1972 Recordings infringe a purported performance right under

Florida common law and (b) alleges that the performances at issue support a recovery in excess

of $100 million in damages supposedly sustained by Plaintiff and members of a putative class of

similarly situated owners of Pre-1972 Recordings. Id. ¶¶ 24, 26, 35, 43. The Complaint leaves

unanswered why, if a state-law performance right in Pre-1972 Recordings in fact exists, Plaintiff

waited more than four decades to assert it, let alone why Plaintiff has asserted this supposed right

against just one broadcaster out of many thousands of music users. Nothing about Sirius XM’s

operations either distinguishes it from other music users in this regard or otherwise overcomes

the legal vacuum in which Plaintiff’s performance right-based claims have been fashioned.

While the Complaint contends that the claimed injury to Plaintiff and the putative class

derives from multiple asserted unauthorized acts on the part of Sirius XM—to wit, the

“unauthorized reproduction, performance, distribution, or other exploitation” of Pre-1972

Recordings (id. ¶ 1)—it is unquestionably the asserted performance right that is central to this

action. See id. ¶ 2 (adverting to Sirius XM’s performances of Turtles recordings “every hour of

every day” to subscribers in Florida); id. ¶ 3 (describing various platforms by which Sirius XM

programming allegedly is transmitted); Pl.’s Resp. to Def.’s Mot. To Transfer Venue at 11 & n.2,

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 1:13-cv-23182 (KMM) (S.D. Fla. Oct. 28, 2013),

ECF No. 23 (asserting that “transmissions” are “gravamen of the Complaint” and conceding that


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allegations regarding copying are “secondary to the larger claim involving Sirius’ transmissions

of the Masters in Florida to Sirius’ Florida subscribers”). Sirius XM therefore brings this motion

for partial dismissal of the Complaint at the threshold of this action because there is no

performance right for sound recordings under Florida law. A ruling in Sirius XM’s favor would

materially narrow this dispute, resulting in more efficient litigation of the case and conservation

of judicial resources, impacting, among other matters, the propriety of class treatment, the

identity of prospective class members should class treatment be determined appropriate, as well

as the scope of fact and putative damages discovery more generally. What would remain is the

balance of Plaintiff’s claims premised on alleged reproductions made by Sirius XM via server

copies of sound recordings in aid of its broadcast transmissions and copies offered for sale or

distribution via download. Sirius XM intends to seek disposition of that part of Plaintiff’s claims

on a motion for summary judgment on the basis that Sirius XM makes no such copies of sound

recordings in Florida (and in the case of downloads, makes no such copies at all), but recognizes

that limited discovery must first be completed before it addresses those claims.1

II. BACKGROUND

Terminology and Statutory Background

Plaintiff alleges in the preamble to the Complaint that it owns “sound recordings of

musical performances that initially were ‘fixed’ (i.e., recorded) prior to February 15, 1972,” and

later alleges that it engages in the business of licensing, inter alia, the “performance of its Pre-

1972 Recordings.” Id. ¶ 5. Although the Complaint asserts claims only under Florida law, the

allegations of the Complaint as well as the arguments made below addressing those allegations

are best understood in relation to certain definitions and rights found in the federal Copyright

1 This motion does not address Plaintiff’s civil theft claim. Although the Complaint stated Plaintiff’s intention to amend to add such a claim, Compl. ¶ 46, Plaintiff has not done so.


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Act, which are briefly summarized here.

The Copyright Act recognizes two separate copyrights associated with recorded music:

one copyright in the music and lyrics (together, a “musical composition”) and another in a

recorded rendition of that song, e.g., when it is recorded by a particular singing group or

orchestra (a “sound recording”). See 17 U.S.C. § 102(a)(2), (7). While musical compositions

have enjoyed copyright protection since 1897, see Act of Jan. 6, 1897, 29 Stat. 481, sound

recordings—the only category of works at issue in this case—were not covered by the federal

Copyright Act until February 15, 1972, the effective date of the Sound Recording Act of 1971.

See Pub. L. No. 92-140, 85 Stat. 391 (1971) (“Sound Recording Act”). The Sound Recording

Act afforded only prospective protection, such that only recordings created on or after the

effective date would be protected under federal law, and it limited that protection to the right

“[t]o reproduce and distribute” “tangible” copies of sounds recordings. Id.

The upshot of the Sound Recording Act was twofold. First, Pre-1972 Recordings like

those at issue in this case remained subject to state law and whatever protections such law did (or

did not) provide. See 17 U.S.C. § 301(c) (preserving unspecified state law remedies for Pre-

1972 Recordings). Second, even as to those “post-1972” recordings granted federal copyright

protection for the first time, the copyright owners (usually record companies) received no right

of public performance, and therefore “no right to extract licensing fees from radio stations and

other broadcasters of recorded music.” Arista Records, LLC v. Launch Media, Inc., 578 F.3d

148, 152 (2d Cir. 2009). Congress thus left sound recordings on a distinctly different footing

than musical compositions, which had long enjoyed a public performance right. See 17 U.S.C. §

106(4); Arista Records, 578 F.3d at 152.


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Effective February 1, 1996, the Digital Performance Right in Sound Recordings Act of

1995 granted owners of federally copyrighted sound recordings (i.e., those created on or after

February 15, 1972) the limited right “to perform the copyrighted work publicly by means of a

digital audio transmission.” Pub. L. No. 104-39 § 2(3), 109 Stat. 336 (1995) (codified at 17

U.S.C. §§ 106(6), 114). Pursuant to section 106(6), Sirius XM is required to pay royalties for its

digital audio transmissions of post-1972 sound recordings. Because Congress has never afforded

copyright protection to Pre-1972 Recordings, they remain protected, if at all, under state law.

The Complaint

Plaintiff’s principals have been performing together as The Turtles since 1965. Compl. ¶

2. Since approximately 1971, Plaintiff has owned the entire catalog of 100 master recordings

made by The Turtles. Id. Each of these master recordings was made prior to February 15, 1972,

and therefore each falls outside of the scope of federal copyright protection. Id.; 17 U.S.C. §

301(c). While the Complaint includes allegations that Sirius XM has copied Plaintiff’s Pre-1972

Recordings onto central servers and enables subscribers to download streams of sound

recordings for later listening, Compl. ¶ 3, the gravamen of the Complaint is that Sirius XM

performs Turtles recordings “every hour of every day” to subscribers in Florida. Id. ¶ 2. Apart

from the bare allegation that Plaintiff “is engaged in the business of distributing, selling, and/or

licensing the reproduction, distribution, sale, and performance of its Pre-1972 Recordings,” id. ¶

5, and notwithstanding its contention that its recordings include “numerous iconic hits,” id. ¶ 2,

Plaintiff fails to allege a single instance in which it has licensed the public performance of its

recordings, that any radio broadcaster or other performer of music has ever requested such a

license from it, or that any third party has refused to take a license from Plaintiff because of

Sirius XM’s use of the recordings.


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Plaintiff also alleges that Sirius XM’s “use of the Pre-1972 Recordings is likely to cause

confusion, mistake or deception as to the source, sponsorship, affiliation or connection between

Plaintiff and the other Class Members, and Defendants.” Id. ¶ 33. Even though Sirius XM

(together with its predecessors) has been offering its service continuously since 2001, Plaintiff

neither identifies a single instance of actual confusion by anyone, nor alleges how Sirius XM’s

inclusion of Plaintiff’s songs among the millions of tracks it performs each year by thousands of

recording artists could possibly deceive or confuse the public into the mistaken belief that

Plaintiff is somehow sponsoring or affiliated with Sirius XM.

Related Actions

Plaintiff has filed nearly identical suits against Sirius XM in California and New York on

behalf of the same putative class, the only meaningful difference being that Plaintiff seeks relief

in those cases under California and New York law, rather than Florida law. Flo & Eddie, Inc. v.

Sirius XM Radio, Inc., No. BC 517032 (Cal. Super. Ct. L.A. Cnty. Aug. 1, 2013) (subsequently

removed to federal court); Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-CV-5784 (CM)

(S.D.N.Y. Aug. 15, 2013). Sirius XM has moved to transfer this case and the California action

to the Southern District of New York, and to stay Sirius XM’s time to respond until the transfer

motions are decided. Those motions are pending. Sirius XM has filed a partial motion to

dismiss the complaint in the New York action on grounds similar to those argued in this motion.

III. ARGUMENT

THERE IS NO PUBLIC PERFORMANCE RIGHT FOR PRE-1972 RECORDINGS UNDER FLORIDA LAW

The Complaint hinges on the mistaken notion that Florida law affords to the owner of a

Pre-1972 Recording the exclusive right of public performance. Because no such right exists, no

liability arises out of Sirius XM’s broadcasting of Pre-1972 Recordings. This conclusion is


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compelled by (i) the decades-long efforts of the record industry to secure a first-ever

performance right for sound recordings in any venue, the legislative history of which confirms

the absence of state law, in Florida or elsewhere, providing for such a right (see infra, Section A)

and (ii) the lack of any cases finding an exclusive right of public performance for sound

recordings under the causes of action asserted by Plaintiff or Florida law more generally (see

infra, Sections B-D).

Insofar as those portions of the Complaint premised on a public performance right for

Pre-1972 Recordings fail to state a claim upon which relief may be granted, partial dismissal of

the Complaint is warranted. See, e.g., Hill v. Opus Corp., 841 F. Supp. 2d 1070, 1082 (C.D. Cal.

2011) (granting motion to dismiss parts of plaintiff’s claims); Hill v. Celebrity Cruises, Inc., No.

09–23815–CIV, 2011 WL 9379007, at *1, *3 (S.D. Fla. July 11, 2011); Carnival Corp. v. Rolls-

Royce PLC, No. 08-23318-CIV, 2009 WL 3861450, at *6 (S.D. Fla. Nov. 17, 2009). In the

alternative, pursuant to Rules 12(d) and 56(a) of the Federal Rules of Civil Procedure, the Court

could convert this motion to a partial motion for summary judgment addressed to that part of

each claim premised on an exclusive right of public performance.

A. The History of Failed Efforts by the Recording Industry To Obtain a Right of Public Performance for Sound Recordings

For nearly a century, the recording industry tried, and failed, to obtain a public

performance right for sound recordings. The legislative history of those efforts to amend the

Copyright Act to provide this sought-after right reflects the widespread and uniform

understanding, shared by Congress, the United States Copyright Office, the recording industry,


8 US_ACTIVE:\44367133\10\76061.0012

and broadcasters alike as to the historic absence of such a right under state law, whether in

Florida or elsewhere.2

The words “sound recording” appeared for the first time in the Copyright Act in 1971,

following passage of the Sound Recording Act. This new grant of rights was limited: Federal

copyright protection was afforded only to recordings created on or after February 15, 1972, and

the scope of that protection was circumscribed. See Sound Recording Act §§ 1, 3. The stated

goal of the Sound Recording Act was to address the problem of rampant record piracy, which

had “rapid[ly] increase[d]” in preceding years due to technological advances. 117 Cong. Rec.

2002 (Feb. 8, 1971); see also H.R. Rep. No. 92-487, at 2 (1971); S. Rep. No. 92-72, at 1, 7

(1971). In furtherance of those goals, owners of qualifying sound recordings were granted

exclusive rights of reproduction and commercial distribution of their works. See 17 U.S.C. §

106(1), (3). At the same time, however, Congress determined not to extend to owners of sound

recordings the right to prevent others from publicly performing those recordings without license

authority. See Sound Recording Act §§ 1(a), 3; 17 U.S.C. § 114(a) (stating that sound recording

rights “do not include any right of performance under section 106(4)”); see also H.R. Rep. No.

92-487, at 14 (1971) (“[T]he exclusive right accorded by this bill does not extend to the

reproduction of the sounds themselves, as, for example, by playing a sound recording over the

radio.”). The record industry’s advocacy for a performance right was viewed by Congress as an

unnecessary augmentation of the rights needed to accomplish the main goal of the legislation.

See H.R. Rep. No. 104-274, at 11 (1995) (explaining that sound recordings “were not granted the

2 The Court may consider such legislative history on a motion to dismiss for failure to state a claim. See, e.g., Larach v. Standard Chartered Bank Int’l (Am.) Ltd., 724 F. Supp. 2d 1228 (S.D. Fla. 2010); Gary v. D. Agustini & Asociados, S.A., 865 F. Supp. 818 (S.D. Fla. 1994); Leggins v. Orlando Hous. Auth., No. 6:13-cv-232-Orl-37DAB, 2013 WL 937739 (M.D. Fla. Mar. 11, 2013); Schism v. United States, 972 F. Supp. 1398 (N.D. Fla. 1997).


9 US_ACTIVE:\44367133\10\76061.0012

rights of public performance, on the presumption that the granted rights would suffice to protect

against record piracy”).

Congress’s denial of a performance right comported with the uniform understanding that,

unlike for the rights of reproduction and distribution, where a patchwork of state laws had

existed to address record piracy, there was no existing protection for public performance of

sound recordings at the state level. This recognition permeates repeated legislative efforts by the

record industry to expand legal protections to encompass public performances of sound

recordings. As early as the 1930s, record producers acknowledged that “the law up to date has

not granted” protection against radio stations’ “indiscriminate use of phonograph records.”

Revision of Copyright Laws: Hearings Before the Comm. on Patents, 74th Cong., 2d Sess. 622

(Comm. Print 1936) (Ex. A).3 This lament was repeated during 1947 hearings, with record

industry representatives noting that while “use of records . . . has become standard practice with

hundreds of radio stations,” the performing artist “has no rights at all beyond an original

agreement with the manufacturer.” Authorizing a Composer’s Royalty in Revenues from Coin-

operated Machines and to Establish a Right of Copyright in Artistic Interpretations: Hearings

Before Subcomm. on Patents, Trade-marks, and Copyrights of the Comm. on the Judiciary on

H.R. 1269, H.R. 1207, and H.R. 2570, 80th Cong., 1st Sess. 6 (Comm. Print 1947) (Ex. B).

During 1961 and 1962, performing artists similarly complained to Congress as to the absence of

royalties “from repeated use” of “[p]laying [records] on radios.” Economic Conditions in the

Performing Arts: Hearings Before the Select Subcomm. on Ed. of the Comm. on Ed. and Labor,

87th Cong., 1st & 2d Sess. 64-65 (Comm. Print 1962) (Ex. C).

3 Relevant excerpts of several older authorities cited herein are appended as Exhibits A to C.


10 US_ACTIVE:\44367133\10\76061.0012

In connection with efforts by the recording industry to obtain a right of public

performance during the overhaul of the copyright laws that led to the Copyright Act of 1976, the

Register of Copyrights reported to Congress that a sound recording performance right had been

removed from the proposed general revision of federal copyright law because such change, in

practice, would “impose severe financial burdens on broadcasters.” Second Supplementary

Register’s Report on the General Revision of the U.S. Copyright Law, 218-21 (1975), available

at Melville B. Nimmer & David Nimmer, 9 Nimmer on Copyright, App. 16 (Lexis 2013). Prior

to enactment of the Digital Performance Rights in Sound Recordings Act of 1995, Pub. L. No.

104-39 § 3(3), 109 Stat. 336, which created a limited right in “digital audio transmissions” of

sound recordings at 17 U.S.C. § 106(6), the Recording Industry Association of America

acknowledged that, “[u]nder existing law, record companies and performers . . . have no rights to

authorize or be compensated for the broadcast or other public performance of their works.”

Testimony of Jason S. Berman Chairman and CEO of RIAA Before the Judiciary Subcomm. on

Counts & Intellectual Property: Hearing on H.R. 1506, (June 21, 1995) 1995 WL 371088

(Westlaw) (emphasis added). This was echoed by the broadcast industry’s trade association, the

National Association of Broadcasters, which testified that “public performance rights” in sound

recordings are “essentially alien to ways we have conducted our business for over 60 years” and

that their imposition “would be enormously disruptive and harmful.” Testimony of the NAB

Before the House Judiciary Comm. Subcomm. on Courts & Intellectual Property on H.R. 1506, §

C (June 21, 1995), 1995 WL 371107 (Westlaw).

B. Sirius XM’s Public Performance of Plaintiff’s Pre-1972 Recordings Does Not Constitute Common Law Copyright Infringement

Plaintiff asserts that: (1) it is the owner of common law copyrights in its Pre-1972

Recordings; (2) as the purported owner of such common law copyrights, Plaintiff possesses the


11 US_ACTIVE:\44367133\10\76061.0012

exclusive right to perform its Pre-1972 Recordings; and (3) Sirius XM infringes these purported

common law copyrights by broadcasting Plaintiff’s Pre-1972 Recordings without a license.

Compl. ¶¶ 21-24. These assertions are incorrect.

First, to the extent Plaintiff ever owned any common law copyrights in its Pre-1972

Recordings, it no longer does. Plaintiff does not (and cannot) allege that any of its Pre-1972

Recordings have not been published. Under Florida law, “common law copyrights are lost

through publication.” DeSilva Constr. Corp. v. Herrald, 213 F. Supp. 184, 194 (M.D. Fla.

1962); see also Manasa v. Univ. of Miami, 320 So. 2d 467, 468 (Fla. Dist. Ct. App. 1975)

(affirming dismissal of common law copyright infringement claim because work at issue was

published, and “therefore, not subject to common law copyright”). As the appellate court in

Kisling v. Rothschild, 388 So. 2d 1310 (Fla. Dist. Ct. App. 1980), observed: “[t]he umbrella of

protection afforded by a common law copyright folds up and vanishes when the owner of the

product ‘publishes’ it, or in some manner dedicates it to the public.” Id. at 1312. This principle

applies to sound recordings like any other form of work otherwise capable of protection under

common law copyright. Once a sound recording has been disseminated to the public—and

Plaintiff’s “numerous iconic hits” unquestionably have been—“the performances embodied

within the recorded sounds lose common law copyright protection.” Int’l Tape Mfrs. Ass’n v.

Gerstein, 344 F. Supp. 38, 57 (S.D. Fla. 1972), vacated on other grounds, 494 F.2d 25 (5th Cir.

1974); see also Neva, Inc. v. Christian Duplications Int'l, Inc., 743 F. Supp. 1533, 1544 (M.D.

Fla. 1990) (explaining that “[u]pon the creation of a work, the author of the work is vested with a

copyright under state common law until the work is published”) (emphasis added).4

4 In CBS, Inc. v. Garrod, 622 F. Supp. 532 (M.D. Fla. 1985) (“CBS”), a case involving record piracy rather than broadcasting activities, the court concluded that sound recordings that had


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Second, even for unpublished works, the scope of protection afforded to common law

copyrights is limited to acts of reproduction and distribution. It does not extend to public

performance. As stated in DeSilva Construction, “there is not copyright infringement unless the

copyrighted work itself had been copied.” 213 F. Supp. at 198 (quoting Rochelle Asparagus Co.

v. Princeville Canning Co., 170 F. Supp. 809 (D.C. Ill. 1959)); see also Van Dusen v. Se. First

Nat’l Bank, 478 So. 2d 82, 87-88 (Fla. Dist. Ct. App. 1985) (limiting infringement to cases

where defendant publishes copies of a work in violation of the plaintiff’s right of first

publication); SmokEnders, Inc. v. Smoke No More, Inc., 184 U.S.P.Q. 309, 318 (S.D. Fla. 1974)

(noting need to prove “actual copying” in case involving unpublished teaching manuals). In

short, no Florida court has ever held that unlicensed public performances of Pre-1972

Recordings constitute copyright infringement. Nothing in the history or controlling body of

Florida law in any way cuts against the common understanding described in detail in Section A,

supra, that no such performance right exists.

C. Sirius XM’s Public Performance of Plaintiff’s Pre-1972 Recordings Does Not Constitute Unfair Competition

The elements of a Florida common-law unfair competition claim are most typically stated

as (1) deceptive or fraudulent conduct of a competitor, and (2) a likelihood of consumer

confusion. See 55 Fla. Jur. 2d Trademarks & Unfair Competition § 22; M.G.B. Homes, Inc. v.

Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990) (“Florida law requires that [plaintiff]

establish deceptive or fraudulent conduct of a competitor and likelihood of consumer

confusion.”) (citing Donald Frederick Evans & Assocs., Inc. v. Cont’l Homes, Inc., 785 F.2d

897, 914 (11th Cir. 1986)); Magical Mile, Inc. v. Benowitz, 510 F. Supp. 2d 1085, 1089-90 (S.D.

been published could nonetheless be protected under other common law doctrines, including unfair competition and conversion. We address CBS in more detail below. See, infra, Section C.


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Fla. 2007) (citing Stagg Shop of Miami, Inc. v. Moss, 120 So. 2d 39 (Fla. Dist. Ct. App. 1960)).

No Florida court has ever found unauthorized public performances of sound recordings to

constitute unfair competition under this test. Plaintiff’s woefully deficient unfair competition

claim must be dismissed because its threadbare and implausible allegations of deceptive or

fraudulent conduct by Sirius XM, consumer confusion, and competition between Plaintiff and

Sirius XM fail to satisfy the pleading standards under Rule 8 of the Federal Rules of Civil

Procedure as articulated by the U.S. Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009) (“Iqbal”) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (“Twombly”).

1. Plaintiff Has Failed to Plead Deceptive or Fraudulent Conduct or a Likelihood of Consumer Confusion

Plaintiff’s sole allegation concerning deceptive conduct or a likelihood of consumer

confusion is the conclusory assertion that Sirius XM’s “unauthorized use of the Pre-1972

Recordings is likely to cause confusion, mistake or deception as to the source, sponsorship,

affiliation or connection between Plaintiff and the other Class Members, and Defendants.”

Compl. ¶ 33. That statement does not come close to satisfying the pleading standards established

in Iqbal:

[T]he pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . We “are not bound to accept as true a legal conclusion couched as a factual allegation.”

556 U.S. 662, 678-79 (2009) (quoting Twombly, 550 U.S. at 555-57).

Plaintiff does not allege any facts to support the legal conclusions concerning deceptive

conduct, fraud, and the likelihood of consumer confusion it hopes this Court will reach. There is

no factual allegation concerning Sirius XM’s open and notorious broadcasting of sound


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recordings that could be construed as evidencing deception or fraud. Plaintiff cannot allege even

a single instance of actual consumer confusion despite alleging that Sirius XM has been playing

its sound recordings “every hour of every day.” Compl. ¶ 2. Moreover, there is no factual

allegation that attempts to explain how anything Sirius XM does might cause confusion as to an

affiliation between Sirius XM and Plaintiff or the owners of other Pre-1972 Recordings

broadcast by Sirius XM. The Complaint simply gives no basis on which this Court could credit

Plaintiff’s naked assertion about fraud or a purported likelihood of consumer confusion. It is at

best a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678.

2. Plaintiff Has Failed to Plead That It Competes With Sirius XM as a Broadcaster

Perhaps in recognition of its inability to meet the pleading standards for a typical Florida

unfair competition claim, Plaintiff contends that it need only show “(A) time, labor and money

expended by the Plaintiff; (B) competition; and (C) commercial damage.” Compl. ¶ 1. To the

extent Plaintiff’s unfair competition claim is directed at Sirius XM’s broadcast activities, i.e., the

activities it contends are “the gravamen of the dispute,”5 Plaintiff is relying on an inapposite test

from a single outlier case involving the copying and sale of bootlegged records rather than

performances by a broadcaster. See CBS, 622 F. Supp. at 536. The CBS court adopted its

alternative formulation solely to deal with the specific problem of record piracy, and subsequent

cases have recognized its application is limited to that factual setting. See, e.g., Ediciones

Musicales Y Representaciones Internacionales, S.A. v. San Martin, 582 F. Supp. 2d 1358, 1361

(S.D. Fla. 2008) (“[I]n CBS, the court limited the availability of these elements to state a cause of

action for unfair competition to those cases involving record piracy.”); Workplace Corp. v. Office

Depot, Inc., No. 89-1485-CIV-T-13A, 1990 WL 106727, at *1 & n.2 (M.D. Fla. June 5, 1990)

5 Pl.’s Resp. to Def.’s Mot. To Transfer Venue at 11.


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(“As specifically stated in CBS, [the court’s] list of requisite elements extend[] only to cases

involving record piracy.”); Clever Covers, Inc. v. Storm Guard, Inc., No. 806CV1062T27MAP,

2006 WL 2691759, at *1 n.1 (M.D. Fla. Sept. 20, 2006). No case has ever applied CBS to public

performances like those made every day by Sirius XM and other radio broadcasters.

Even if the Court were to adopt this inapposite set of elements, Plaintiff’s performance-

based claims would still fail. Plaintiff does not adequately allege either (a) competition with

Sirius XM’s broadcast activities, or (b) any commercial damage that flows from them. As the

Florida appellate court has recognized:

The phrase “unfair competition” . . . refers unambiguously only to actions affecting competitors. This is consistent with the Florida case law that requires injury to a competitor as an essential element of any claim of unfair competition. Even giving the phrase “unfair competition” its broadest ordinary meaning, the offense must include at least two elements, “unfairness” and “competition.” This requirement that the offense include an element of rivalry is consistent with the plain meaning of the words and with recognized definitions. To define “unfair competition” simply to mean any act of a commercial enterprise which is unfair would be to expand the phrase to include all alleged wrongdoing by business and therefore include all manner of breach of contract, torts and violations of statutes, administrative regulations and the like. Such a boundless definition is therefore unreasonable.

Practice Mgmt. Assocs., Inc. v. Old Dominion Ins. Co., 601 So. 2d 587, 587-88 (Fla. Dist. Ct.

App. 1992) (per curiam). Numerous other courts are in accord. See, e.g., Third Party

Verification v. Signaturelink, 492 F. Supp. 2d 1314, 1325 (M.D. Fla. 2007) (“To state [a] claim

for unfair competition, the pleading party must allege that it competes with its opponent for a

common pool of customers.”); Home Design Servs., Inc. v. Park Square Enters., Inc., No. 6:02-

CV-637-ORL28JGG, 6:03-CV-595-ORL28JGG, 2005 WL 1027370, at *14 (M.D. Fla. May 2,

2005) (“Although Park Square might reasonably be seen as both a homebuilder and home

designer, there is no indication in the record that it competes with Home Design for a common

pool of customers. While Home Design is exclusively an architectural design firm which


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develops house plans for homebuilders, Park Square designs architectural plans for its own

purposes as a homebuilder.”); Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 444 F.3d

1356, 1362 (Fed. Cir. 2006) (“A claim of unfair competition in Florida arises under the common

law and, while elusive of precise definition, requires a plaintiff to prove, at minimum,

competition and unfairness.” (emphasis removed)).

Plaintiff does not plead competition between it and Sirius XM in a manner consistent

with the Iqbal/Twombly standard. The Complaint contains only the conclusory statement that

Sirius XM “unfairly and directly compet[es]” with Plaintiff and other members of the putative

class, Compl. ¶ 32, without a single factual allegation to support this “[t]hreadbare recital[] of the

elements of [the] cause of action.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

The Complaint does not, for example, allege that Sirius XM competes with the Plaintiff as a

creator, seller, or licensor of sound recordings, nor does it allege that Plaintiff offers a satellite

radio broadcast service (or any other broadcast service) in competition with Sirius XM. The

Complaint is devoid even of any allegations that Plaintiff has ever licensed a competitor of Sirius

XM to make public performances of Pre-1972 Recordings, or that Sirius XM has paid another

record company (that is, one of Plaintiff’s competitors) for the right to publicly perform its Pre-

1972 Recordings. Although each of the 100 works at issue was recorded more than 40 years

ago, Plaintiff does not point to a single broadcaster, bar, restaurant, retail establishment or other

third party that has ever taken a license from it for the right to perform any of its “numerous

iconic hits.” These shortcomings are fatal to the pleading.

Plaintiff fares no better with its attempt to plead “commercial damage.” In CBS, the

“damage” was the plaintiff’s failure to make a sale it would have made but for the record piracy.

No comparable damage is alleged to arise from the public performance of Pre-1972 Recordings


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here. While no subsequent Florida case has interpreted the “commercial damage” prong of the

CBS standard, cases from analogous settings suggest that commercial damage requires either

diminution of the value of the plaintiff’s product, or some loss suffered by the plaintiff that

would not have occurred absent defendant’s actions – i.e., something more than the defendant’s

failure to pay for its own use of the property. For example, in Manufacturing Research Corp. v.

Greenlee Tool Co., 693 F.2d 1037 (11th Cir. 1982), the Eleventh Circuit explained that

cognizable damage under an unfair competition claim (there based on tortious interference)

could result from statements by the defendant “either calculated to diminish the market for

[plaintiff’s product] or made knowing the market was substantially certain to be diminished.” Id.

at 1040. In Agee v. Paramount Communications, 59 F.3d 317 (2d Cir. 1995), the court dismissed

the sound recording owner’s unfair competition claim as “baseless” because the plaintiff “failed

to plead facts indicating that his record sales or licensing revenues have in any way been affected

by [defendants’] use of the recording.” Id. at 327. Consequently, “[t]here is no reasonable

ground for believing that [plaintiff] has suffered economic losses as a result of [the defendants’]

actions, or that consumers think less of the recording.” Id.

The Complaint here fails for similar reasons. Plaintiff alleges that Sirius XM has

“impaired [its] ability to sell, license, lawfully exploit, or otherwise control [its] pre-1972

Recordings” (Compl. ¶ 4) and done “enormous and irreparable harm” (id.) in an amount

exceeding $100 million (id. ¶¶ 26, 33). But these conclusory and unsupported allegations fail to

describe any actual financial losses or lost dealings Plaintiff has suffered due to Sirius XM’s

broadcasting of its Pre-1972 Recordings. Unlike in Manufacturing Research Corp., Plaintiff has

failed to allege any actual facts as to how its market has been “diminished” (that is, how its

ability to sell its Pre-1972 Recordings has been “impaired”) by Sirius XM’s performances. And


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just as in Agee, Plaintiff has “failed to plead facts indicating that [its] record sales or licensing

revenues have in any way been affected by [Sirius XM’s] use of the recordings” – or that

Plaintiff “has suffered economic losses . . . or that consumers think less of the recording[s].” See

Agee, 59 F.3d at 327. Again, Plaintiff’s claimed injury is merely that Sirius XM (like every

other broadcaster) does not pay license fees to perform Plaintiff’s recordings. This is not a

legally cognizable injury under Florida unfair competition law. Accordingly, Plaintiff’s claim

should be dismissed insofar as it is based on unauthorized performances of its works.

D. Sirius XM’s Public Performance of Plaintiff’s Pre-1972 Recordings Does Not Constitute Conversion

Plaintiff does not allege facts sufficient to state a claim for conversion. Under Florida

law, “conversion is an unauthorized act which deprives another of his property permanently or

for an indefinite time.” Small Bus. Admin. v. Echevarria, 864 F. Supp. 1254 (S.D. Fla. 1994)

(Moore, J.) (citing Nat’l Union Fire Ins. Co. v. Carib Aviation, Inc., 759 F.2d 873 (11th Cir.

1985)); see Shelby Mut. Ins. Co. of Shelby, Ohio v. Crain Press, Inc., 481 So. 2d 501, 503 (Fla.

Dist. Ct. App. 1985). Dispossession or deprivation of the property is essential to the tort, and it

is absent here. As the Florida Supreme Court explained nearly 60 years ago:

[The] [e]ssential element of a conversion is a wrongful deprivation of property to the owner…. The gist of a conversion has been declared to be not the acquisition of the property of the wrongdoer, but the wrongful deprivation of a person of property to the possession of which he is entitled. A conversion consists of an act in derogation of the plaintiff’s possessory rights, and any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time.

Star Fruit Co. v. Eagle Lake Growers, 33 So. 2d 858, 860 (Fla. 1948) (en banc) (internal

quotation marks and citations omitted); see also id. (describing conversion as “detaining goods

so as to deprive the person entitled to the possession of them his dominion over them” and

“exercise of dominion to the exclusion and in defiance of the plaintiff’s right” (internal quotation


19 US_ACTIVE:\44367133\10\76061.0012

marks and citations omitted)). Moreover, to state a claim for conversion, a plaintiff must show

not just that it was deprived of its property, but that the defendant intended to deprive the

plaintiff of possession:

The Court has examined the cases addressing this issue and concludes that if the Supreme Court chose to revisit the issue, it would not disturb its prior rulings holding that intent is a necessary element of conversion. Specifically, the Court follows the Third District Court of Appeals decision in Senfeld, which found that “the essence of conversion is not the possession of property by the wrongdoer but rather such possession in conjunction with a present intent … to deprive the person entitled to possession of the property.”

Small Business Admin., 864 F. Supp. at 1262-63 (quoting Senfeld v. Bank of Nova Scotia Trust

Co. (Cayman) Ltd., 450 So. 2d 1157, 1161 (Fla. Dist. Ct. App. 1984)).

In other words, conversion does not arise merely where a defendant benefits by the use of

property without paying for it, but only where that use deprives the property owner of its

possession. As this Court has explained: “Acquisition of the property is unimportant. The

essence of the tort of conversion is a party’s refusal to surrender the property after demand has

been made.” Small Business Admin., 864 F. Supp. at 1262 (citing Murrell v. Trio Towing Serv.,

Inc., 294 So. 2d 331 (Fla. Dist. Ct. App. 1974) and Star Fruit Co., supra); see also Marine

Transp. Servs. Sea-Barge Grp., Inc. v. Python High Performance Marine Corp., 16 F.3d 1133,

1140 (11th Cir. 1994) (explaining that “the essence of the tort is not the acquisition of the

property; rather, it is the wrongful deprivation” (internal quotation marks and citations omitted)).

Here, no demand was made and there is nothing to surrender. Not surprisingly, no Florida court

has ever held the unlicensed public performance of sound recordings to constitute conversion of

those recordings. Plaintiff cannot state a conversion claim because Sirius XM’s performances of

copies of the Plaintiff’s recordings do not deprive or dispossess Plaintiff of its master recordings.

Plaintiff does not even attempt to allege that it does (much less that Sirius XM acts intentionally


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to deprive Plaintiff of its recordings).6

Again, CBS is not to the contrary. As noted above, the case involved record piracy—that

is to say, a defendant whose sale of bootleg records interfered with and deprived the plaintiff of

the opportunity to sell its own copies. Thus, while the case does represent an extension of the

traditional conversion tort from tangible items to the conversion of “intangible interests in a

business venture,” see Compl. ¶ 1, the logic of the decision puts it squarely in line with the

requirements outlined above: namely, that the defendant be deprived of its property as a result of

the defendant’s actions (in that case, sales revenue the plaintiff otherwise could have earned and

“possessed” itself).7 That logic does not extend to unauthorized performances that do not

interfere with any of Plaintiff’s existing business activities.

IV. CONCLUSION

For the foregoing reasons, the Complaint should be dismissed with prejudice to the extent

it is premised on a public performance right for Pre-1972 Recordings under Florida law.

6 As to the latter, the closest Plaintiff comes is the boilerplate recitation of the required elements for obtaining punitive damages, i.e., that Sirius XM acted with “oppression, fraud and/or malice.” Compl. ¶ 44. As Iqbal instructs, however, courts “‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also Hogan v. Provident Life & Acc. Ins. Co., No. 6:08-cv-1897-Orl-19KRS, 2009 WL 2169850, at *5-7 (M.D. Fla. July 20, 2009) (rejecting punitive damage claim as “merely conclusory” and thus in violation of Iqbal as well as substantive punitive damage pleading standard of Fla. Stat. § 768.72, which requires “reasonable showing” that demonstrates “a reasonable basis for recovery of such damages”). 7 This interpretation is confirmed by the cases on which CBS relies. In re Corbin’s Estate, for example, involved a defendant who sold a deceased’s entire business to a third party in a way that deprived the heirs of possession of the business and its income stream and profits. 391 So. 2d 731, 731-32 (Fla. Dist. Ct. App. 1980). Similarly, In re Aqua Clear Techs., Inc. involved the taking of a business phone number whereby calls to the number would be diverted to the defendant rather than to the estate of the original “owner” of the phone number. 361 B.R. 567, 574-75 (Bankr. S.D. Fla. 2007). Unlike these situations, where the “business interest” could be possessed by one, and only one, person at a time, Sirius XM’s performance of its copies of the class members’ recordings does not deprive them of anything.


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Dated: November 14, 2013 Respectfully submitted,

/s/ Edward Soto Edward Soto (Fla. Bar No. 0265144) [email protected] Weil, Gotshal & Manges LLP 1395 Brickell Ave, Suite 1200 Miami, FL 33131 (305) 577-3100 R. Bruce Rich (pro hac vice pending) Bruce S. Meyer (pro hac vice pending) Benjamin E. Marks (pro hac vice pending) Todd Larson (pro hac vice pending) John R. Gerba (pro hac vice pending) Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 Tel: 212-310-8000 Michael S. Oberman (pro hac vice pending) Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York 10036 Tel: 212-715-9294

Attorneys for Defendant Sirius XM Radio Inc.


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CERTIFICATE OF SERVICE I hereby certify that on November 14, 2013, I electronically filed the foregoing with the

Clerk of the Court for the United States District Court for the Southern District of Florida by

using the CM/ECF system, which sent notification of such filing to all CM/ECF participants. All

other counsel shall be served by United States mail.

Plaintiff Flo & Eddie, Inc.’s Counsel: Glen H. Waldman Eleanor T. Barnett Jason Gordon Heller Waldman, P.L. 3250 Mary Street, Suite 102 Coconut Grove, Florida 33133 Henry Gradstein Maryann R. Marzano Robert E. Allen Gradstein & Marzano, P.C. 6310 San Vincente Blvd., Suite 510 Los Angeles, California 90048

/s/ Edward Soto________________ Edward Soto (Fla. Bar No. 0265144) [email protected] WEIL, GOTSHAL & MANGES LLP 1395 Brickell Ave, Suite 1200 Miami, FL 33131 (305) 577-3100 Attorneys for Defendant Sirius XM Radio Inc.



3250 MARY STREET, SUITE 102 ● COCONUT GROVE, FLORIDA 33133 {00110481.DOCX }

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 13-CV-23182

FLO & EDDIE, INC., a California corporation, individually and on behalf of all others similarly situated,

Plaintiff, v. SIRIUS XM RADIO, INC., a Delaware corporation; and DOES 1 through 10,

Defendants.

/

AMENDED CLASS ACTION COMPLAINT1

Plaintiff FLO & EDDIE, INC. (“Plaintiff” or “Flo & Eddie”), by and through its

undersigned counsel, files this class action Amended Complaint on behalf of itself and on behalf

of all other similarly situated owners of sound recordings of musical performances that initially

were “fixed” (i.e., recorded) prior to February 15, 1972 (the “Pre-1972 Recordings”) against

Defendants SIRIUS XM RADIO, INC. (“Defendant” or “SiriusXM”) and DOES 1-10, and

alleges as follows:

NATURE OF THE ACTION

1. Florida common law and statutory law provide protection for Pre-1972 Recordings

from their unauthorized reproduction, performance, distribution or other exploitation, and permit

the owners of Pre-1972 Recordings the right to bring the following separate claims for relief

1 Pursuant to Fed. R. Civ. P. 15(a)(1)(B), Plaintiff is filing this Amended Complaint as a matter of course in lieu of filing a Response to Defendant, SIRIUS XM RADIO, INC.’s Partial Motion to Dismiss, since the Amended Complaint is being filed within twenty-one (21) days of the date of the Motion.




against parties who engage in such unauthorized actions: (a) common law copyright

infringement; (b) common law misappropriation/unfair competition; (c) common law

conversion; (d) civil theft under Fla. Stat. § 772.11 for violations of Fla. Stat. § 812.014(1); and

(e) preliminary injunction and permanent injunction. A person commits common law copyright

infringement of a sound recording not protected by the US Copyright Act in Florida by doing,

without the consent of the owner, anything which is the sole right of the owner to do, including

reproducing, distributing, performing or otherwise exploiting such recording. The elements of a

misappropriation/unfair competition claim involving record piracy in Florida are: (A) time,

labor and money expended by the Plaintiff; (B) competition; and (C) commercial damage. A

claim for conversion exists for a wrongful taking of intangible interests in a business venture.

Finally, Fla. Stat. § 812.014(1) provides that one is liable for theft if one “knowingly obtains or

uses the property of another with intent to appropriate the property to his or her own use.”

“Property” is defined under Section 812.012(4)(b) as “anything of value” including “[t]angible

or intangible personal property.”

2. The principals of Flo & Eddie, Mark Volman and Howard Kaylan, have been

performing together as The Turtles since 1965 and have recorded numerous iconic hits including

“Happy Together,” “It Ain’t Me Babe,” “She’d Rather Be With Me,” “You Baby,” “She’s My

Girl,” “Elenore,” and many others. Since approximately 1971, Flo & Eddie has owned the entire

catalog of 100 original master recordings by The Turtles, all of which were recorded prior to

February 15, 1972, and which have been and remain popular and valuable, notwithstanding

changes in how recordings are made, distributed and performed. Plaintiff’s Pre-1972 Recordings

are the product of a significant investment of time, effort, money and creative talent in creating,




manufacturing, advertising, promoting, selling and licensing its recordings. In return, Plaintiff

receives revenues, royalties and other compensation from its ongoing licensing and exploitation

of these works.

3. Plaintiff receives payments for, among other uses, the distribution, reproduction

and digital public performance of its Pre-72 Recordings, including by offering for sale (directly

or through licenses) compact discs and digital music files for download, by licensing them to

digital services (including for digital streaming to the public), and licensing them for use in

motion pictures, television programs and commercials. The payments that Plaintiff receives are

a main source of revenue used to pay Plaintiff’s ongoing investment and expenses, and to

compensate its principals, employees and representatives for their talent and work in creating the

Pre-72 Recordings and for administering and collecting revenue generated by such works.

4. Digital music streaming is becoming integral to the dissemination of music. As

technology changes and greater numbers of people listen to music via digital transmissions in

lieu of purchasing music on CDs or digital music files, Plaintiff relies increasingly on revenues

from the digital public performance of music, including Pre-72 Recordings. It is extremely

important to Plaintiff’s business that those who make a commercial use of Plaintiff’s Pre-72

Recordings obtain licenses and pay Plaintiff for their use of Pre-72 Recordings.

5. Defendant SiriusXM is the sole provider of satellite radio service in the United

States, known as “Sirius Satellite Radio,” “XM Satellite Radio” and “SiriusXM Satellite Radio”

(individually and collectively, the “Service”). SiriusXM uses satellite technology to transmit the

Service to its subscribers. SiriusXM’s channels are beamed from the ground to satellites, which

then transmit digital audio files to SiriusXM receivers possessed by its subscribers. Over the




past few years, SiriusXM has expanded into Internet-based digital streaming transmissions,

increasing the number of its subscribers to over 25 million and earning billions of dollars in

revenue.

6. The Service is distributed in Florida to its subscribers through (a) satellite digital

transmission directly to subscribers via digital radios manufactured or licensed by SiriusXM; (b)

satellite digital transmission to subscribers of other services, such as DIRECTV Satellite

Television Service and Dish Network Satellite Television Service via digital set top boxes

manufactured or licensed by DIRECTV or Dish; and (c) the Internet, by way of (i) digital media

streaming devices, such as Roku, digital radios and home audio systems, such as Sonos; (ii) its

website at www.SiriusXM.com; or (iii) computer, smart phone and other mobile applications for

various operating systems, including Apple iOS, Android, Windows, Blackberry and HP webOS.

As part of the Service, many subscribers in Florida are also able to: (A) download the stream of

a selected channel on the Service, allowing later or multiple listenings of the sound recordings

previously streamed during the selected time period; (B) download particular sound recordings,

allowing later or multiple listenings of such sound recordings; (C) download particular programs

incorporating sound recordings as part of the Service’s “On Demand” feature, allowing later or

multiple listenings of such sound recordings; and (D) allow subscribers to pause, rewind and

replay sound recordings using the Service’s “Replay” feature or its “My SXM” feature.

7. SiriusXM sells the Service to subscribers for $14.49 per month for its “Select”

package and $17.99 per month for its “Premier” package. The “Select” package provides over

165 satellite radio channels to its subscribers, including around-the-clock “commercial-free

music, sports, talk, and entertainment.” Of the seven categories into which SiriusXM




characterizes its channels (for example, “Sports Talk/Play-by-Play,” “News & Issues,” and

“Comedy”), by far the largest category is “Commercial-Free Music,” which SiriusXM claims has

72 channels (The second-largest category, “Talk & Entertainment,” has only 22 channels.).

8. The significant value of Pre-72 Recordings to SiriusXM’s business and the

popularity of Pre-72 Recordings among its paying subscribers is evidenced by, among other

things, its advertising and promotion of the availability of Pre-72 Recordings on the Service. A

significant portion of SiriusXM’s channels feature classic recordings, including channels

exclusively devoted to continuous public performances of the most popular Pre-72 Recordings

by well-known recording artists.

9. SiriusXM uses Plaintiff’s Pre-72 Recordings by distributing, reproducing and then

publicly performing them to millions of SiriusXM subscribers. Additionally, SiriusXM has

copied Plaintiffs’ Pre-72 Recordings without Plaintiff’s consent. Plaintiff is informed and

believes, and on that basis alleges, that SiriusXM has done so, among other ways, by obtaining

Plaintiff’s recordings and copying them to its servers and to its satellites. SiriusXM then uses

those unauthorized copies of Plaintiff’s Pre-72 Recordings to transmit the performances

embodied thereon to its subscribers. Plaintiff is informed and believes, and on that basis alleges,

that in such way, SiriusXM has distributed, reproduced and publicly performed Plaintiff’s Pre-72

Recordings numerous times throughout the United States, including in Florida.

10. SiriusXM has never been licensed or authorized to duplicate, distribute, reproduce

or publicly perform any of Plaintiff’s Pre-72 Recordings. Although a significant portion of

SiriusXM’s $3.4 billion in revenue earned in 2012 is attributable to Pre-72 Recordings, and

though SiriusXM capitalizes on its customers’ desire to listen to these recordings, SiriusXM




refuses to seek licenses from Plaintiff or pay to Plaintiff any royalties or other compensation.

Conversely, SiriusXM pays digital public performance royalties for the performance of post-

1972 sound recordings that are covered by the federal Copyright Act.

11. By its conduct, SiriusXM not only deprives Plaintiff of the revenues to which it and

others are entitled, but also places those streaming services that do obtain licenses from, account

to, and pay Plaintiff for the performance of Plaintiff’s Pre-72 Recordings in a competitive

disadvantage. SiriusXM’s refusal to pay for its continued use of Pre-72 Recordings directly

contravenes Florida law and policy, which always have provided equal, if not greater, rights to

owners of sound recordings than the federal Copyright Act.

12. In 1972, Congress amended the United States Copyright Act to add for the first

time “sound recordings” to the list of works protected under federal copyright law. 17 U.S.C. §

102(a)(7) (2013). At the same time, Congress also preserved “any rights or remedies under the

common law or statutes of any State” with respect to sound recordings “fixed” before February

15, 1972. 17 U.S.C. § 301(c) (2013). As a result, pre-existing Florida protection for Pre-72

Recordings was left untouched and subject to evolution and refinement by the courts. Congress

initially limited the federal sound recording copyright to include certain of the exclusive rights

conferred on other works – namely, the rights of reproduction, adaptation, and distribution – and

to exclude the right to publicly perform sound recordings. Florida law has never delimited,

either explicitly or implicitly, the scope of common law protection of Pre-72 Recordings, and did

not exclude the right of public performance from the rights of owners in Pre-72 Recordings.

13. This broad protection afforded to Pre-72 Recordings is consistent with the

recognition by Florida courts of critical, important public policy interests in providing strong




state law protection for sound recordings. These interests include ensuring that record

companies receive compensation from their substantial expenditure of effort, skill and money in

creating, marketing and exploiting recorded performances, as well as ensuring that the owners of

sound recordings possess adequate remedies against those who misappropriate and profit from

such performances. Florida’s protections for sound recordings thus are complete, providing

exclusive ownership and rights in Pre-72 Recordings that are not limited in any way, and that

include any conduct by which individuals or entities seek to unfairly compete and profit from the

skill and labor of Plaintiff by appropriating and exploiting Pre-72 Recordings for their own

benefit, including by unauthorized and unlicensed reproduction and public performance of these

recordings.

14. The need for effective state law protection of Pre-72 Recordings is especially great

today. Pre-72 Recordings comprise a significant and important share of the overall body of

existing musical recordings, and include some of the most popular and valued recordings in

history. Many digital radio channels and services are dedicated entirely to the dissemination and

performance of Pre-72 Recordings, such as classic rock, jazz, R&B, and classical recordings.

The rise of digital media has made the threat to Pre-72 Recordings acute, as virtually anyone

with a computer and an Internet connection can copy and then distribute and perform high-

quality music instantaneously to millions. As digital technology has improved, the cost of digital

services has diminished, and, as a result music consumption habits have changed. Music

consumers increasingly obtain and enjoy music via online or satellite “radio” or digital streaming

services instead of purchasing CDs or digital music files.




15. To address the anticipated shift in music consumption habits and the rise of digital

radio services and, therefore, the need to provide federal protection for the performance of

copyrighted sound recordings, Congress passed the Digital Performance Rights in Sound

Recordings Act (“DPRA”), granting owners of post-72 copyrighted sound recordings the right to

“perform the copyrighted work publicly by means of a digital audio transmission.” 17 U.S.C.

§ 106(6) (2013).

16. Florida’s protection for Pre-72 Recordings has never been less extensive than

federal copyright protection for post-72 recordings. Florida had provided common law

protection for Pre-72 Recordings without any exclusions and including the right of public

performance. Those, like SiriusXM, who build their business and make money from the

copying, reproduction and public performance of Pre-72 Recordings must obtain the right under

Florida law to use them and must compensate their owners.

17. SiriusXM has never been licensed or authorized to duplicate, distribute, reproduce

or publicly perform any of Plaintiff’s Pre-72 Recordings. Although a significant portion of

SiriusXM’s $3.4 billion in revenue earned in 2012 is attributable to Pre-72 Recordings, and

though SiriusXM capitalizes on its customers’ desire to listen to these recordings, SiriusXM

refuses to seek licenses from Plaintiff or pay to Plaintiff any royalties or other compensation.

Conversely, SiriusXM pays digital public performance royalties for the performance of post-

1972 sound recordings that are covered by the federal Copyright Act.

18. Simply stated, SiriusXM has disregarded the Plaintiff’s and other Class Members’

exclusive ownership of their Pre-1972 Recordings in Florida, impaired their ability to sell,

license, lawfully exploit, or otherwise control their Pre-1972 Recordings as permitted under




Florida law, and misappropriated/unfairly competed, converted and stolen same for its own

financial gain. SiriusXM’s conduct is causing, and will continue to cause, enormous and

irreparable harm to Plaintiff and the other Class Members unless compensatory and punitive

damages are awarded against SiriusXM and it is enjoined and restrained from engaging in further

infringement, misappropriation/unfair competition, conversion and civil theft of the Pre-1972

Recordings.

THE PARTIES, JURISDICTION AND VENUE

19. Plaintiff Flo & Eddie is a corporation duly organized and existing under the laws of

California, with its principal place of business in Los Angeles, California. Plaintiff is engaged in

the business of distributing, selling, and/or licensing the reproduction, distribution, sale, and

performance of its Pre-1972 Recordings in phonorecords, in audiovisual works, and for

streaming (i.e., performing) and downloading over the Internet. Plaintiff invests substantial

money, time, effort, and creative talent in creating, advertising, promoting, selling and licensing

its unique and valuable sound recordings.

20. Plaintiff possesses exclusive ownership rights in The Turtles Pre-1972 Recordings,

the titles of which are specified on the schedule attached hereto as Exhibit A and incorporated

herein by reference (“Plaintiff’s Recordings”). The United States Congress expressly has

recognized that the states provide exclusive protection through various state law doctrines to

recordings initially “fixed” before February 15, 1972, and that the federal Copyright Act does not

“annul[] or limit[]those rights until February 15, 2067.” 17 U.S.C. § 301(c). Accordingly, as

quoted above, Florida law protects the exclusive ownership of Plaintiff and the other Class

Members to their Pre-1972 Recordings in Florida.




21. Upon information and belief, Defendant SiriusXM is a corporation duly organized

and existing under the laws of Delaware, with its principal place of business in New York, New

York. The Court has personal jurisdiction over Defendant in that Defendant has offices

throughout Florida, including, without limitation, in Miami, Jupiter, Deerfield Beach and Boca

Raton, Defendant is engaged in tortious conduct in Florida, and Defendant’s conduct causes

injury to Plaintiff and the other Class Members in Florida.

22. This court has subject matter jurisdiction over the subject matter of this class action

pursuant to 28 U.S.C. § 1332(d). The amount in controversy exceeds Five Million Dollars

($5,000,000), there are more than one thousand (1,000) putative Class Members, and the

requisite minimal diversity of citizenship exists because Plaintiff and Defendant are citizens of

different States.

23. Venue of this action is proper in this jurisdiction under 28 U.S.C. § 1391(b) in that

Defendant maintains several offices in the Southern District of Florida and a substantial part of

the events giving rise to the claims alleged herein occurred in the Southern District of Florida.

24. The true names and capacities, whether individual, corporate, associate or

otherwise, of defendants named herein as Does 1 through 10, inclusive, are unknown to Plaintiff

who therefore sues said defendants by such fictitious names (the “Doe Defendants”). Plaintiff

will amend this Complaint to allege their true names and capacities when such have been

ascertained. Upon information and belief, each of the Doe Defendants herein is responsible in

some manner for the occurrences herein alleged, and Plaintiff’s injuries and those of the other

Class Members as herein alleged were proximately caused by such defendants’ acts or




omissions. (All of the Defendants, including the Doe Defendants, collectively are referred to as

“Defendants”).

CLASS ACTION ALLEGATIONS

25. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil

Procedure 23 on behalf of itself and the other Class Members defined as the owners of Pre-1972

Recordings reproduced, performed, distributed or otherwise exploited by Defendants in Florida

without a license or authorization to do so during the period from August 29, 2009 to the present.

Plaintiff reserves the right to modify this definition of the Class after further discovery; the Court

may also be requested to utilize and certify subclasses in the interests of ascertainability,

manageability, justice and/or judicial economy.

26. 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 Class Members are readily and

easily ascertainable and identifiable from Defendant SiriusXM’s database files and records.

Plaintiff is informed and believes, and on that basis alleges, that Defendants have engaged a third

party to supply the metadata, including the metadata relating to Pre-1972 Recordings unlawfully

streamed to subscribers in Florida, and that such metadata contains the name and location of the

owners thereof. The Class members are further ascertainable through methods typical of class

action practice and procedure.

27. Plaintiff is informed and believes, and alleges thereon, that the Pre-1972

Recordings infringed, misappropriated/unfairly competed, converted and/or stolen in Florida by

Defendants number in the millions and are owned by many thousands of Class Members. It is

therefore impractical to join all of the Class Members as named Plaintiffs. Further, the claims of




the Class Members may range from smaller sums to larger sums. Accordingly, using the class

action mechanism is the most economically feasible means of determining and adjudicating the

merits of this litigation.

28. The claims of Plaintiff are typical of the claims of the Class Members, and

Plaintiff’s interests are consistent with and not antagonistic to those of the other Class Members

it seeks to represent. Plaintiff and the other Class Members have all been subject to

infringement, misappropriation / unfair competition, conversion and theft of their Pre-1972

Recordings in Florida, have sustained actual pecuniary loss and face irreparable harm from

Defendants’ continued infringement, misappropriation / unfair competition, conversion and theft

of their Pre-1972 Recordings.

29. Plaintiff has no interests that are adverse to, or which conflict with, the interests of

the other Class Members and is ready and able to fairly and adequately represent and protect the

interests of the other Class Members. Plaintiff believes strongly in the protection of artists’

rights in connection with their creative work. Plaintiff has raised viable claims for infringement,

misappropriation/unfair competition, conversion and theft of the type well established in Florida

and reasonably expected to be raised by Class Members. Plaintiff will diligently pursue those

claims. If necessary, Plaintiff may seek leave of the Court to amend this Complaint to include

additional class representatives to represent the Class or additional claims as may be appropriate.

Plaintiff is represented by experienced, qualified and competent counsel who are committed to

prosecuting this action.

30. Common questions of fact and law exist as to all Class Members that plainly

predominate over any questions affecting only individual Class Members. 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 Defendant SiriusXM reproduced, performed, distributed or

otherwise exploited Pre-1972 Recordings in Florida;

(B) Whether Defendant SiriusXM’s reproduction, performance, distribution or

other exploitation of Pre-1972 Recordings in Florida constitutes common law copyright

infringement under Florida law;

(C) Whether Defendant SiriusXM’s reproduction, performance, distribution or

other exploitation of Pre-1972 Recordings in Florida constitutes misappropriation / unfair

competition under Florida law;

(D) Whether Defendant SiriusXM’s reproduction, performance, distribution or

other exploitation of Pre-1972 Recordings in Florida constitutes conversion under Florida

law;

(E) Whether Defendant SiriusXM’s reproduction, performance, distribution or

other exploitation of Pre-1972 Recordings in Florida constitutes civil theft in violation of

Fla. Stat. §§ 722.11 and 812.014(1);

(F) The basis on which restitution and/or damages to all injured members of

the Class can be computed;

(G) Whether Defendant SiriusXM’s violation of Florida common law for

copyright infringement entitles the Class Members to recover punitive damages;




(H) Whether Defendant SiriusXM’s violation of Florida common law for

copyright infringement is continuing, thereby entitling Class Members to injunctive or

other equitable relief;

(I) Whether Defendant SiriusXM’s violation of Florida’s laws against

misappropriation/unfair competition entitles the Class Members to recover punitive

damages;

(J) Whether Defendant SiriusXM’s violation of Florida’s laws against

misappropriation / unfair competition is continuing, thereby entitling Class Members to

injunctive or other relief;

(K) Whether Defendant SiriusXM’s violation of Florida’s laws against

conversion entitles the Class Members to recover punitive damages;

(L) Whether Defendant SiriusXM’s violation of Florida’s laws against

conversion is continuing, thereby entitling Class Members to injunctive or other relief;

(M) Whether Defendant SiriusXM’s violation of Fla. Stat. § 812.014(1) for

civil theft entitles the Class Members to recover treble the amount of compensatory

damages in accordance with Fla. Stat. § 772.11; and

(N) Whether Defendant SiriusXM’s violation of Fla. Stat. § 812.014(1) for

civil theft is continuing, thereby entitling Class Members to injunctive or other relief.

31. A class action is superior to all other available methods for the fair and efficient

adjudication of this controversy, since individual litigation of the claims of all Class Members is

highly impractical. Even if every Class Member could afford to pursue individual litigation, the

Court system could not. 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, inconsistent or contradictory 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. By contrast, maintenance of this action as a class action, with respect to some or all of

the issues presented herein, presents few management difficulties, conserves the resources of the

parties and of the court system, and protects the rights of each Class Member. Plaintiff

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

32. Additionally, the prosecution of separate actions by individual Class Members may

create a risk of adjudications with respect to them that would, as a practical matter, be dispositive

of the interests of the other Class Members not parties to such adjudications or that would

substantially impair or impede the ability of such nonparty Class Members to protect their

interests. The prosecution of individual actions by Class Members could establish inconsistent

results and incompatible standards of conduct for Defendant SiriusXM.

33. Defendants have engaged in common law copyright infringement,

misappropriation/unfair competition, conversion and civil theft, which has affected all of the

Class Members such that final and injunctive relief on behalf of the Class as a whole is efficient

and appropriate.

FIRST CLAIM FOR RELIEF

(Common Law Copyright Infringement)

34. Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 33

above as though set forth in full herein.




35. The Pre-1972 Recordings are unique intellectual property subject to common law

copyright protection under the law of the State of Florida.

36. As the owners of valid common law copyrights or exclusive licensees in and to the

Pre-1972 Recordings, Plaintiff and the other Class Members possess the exclusive rights to

reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings, and license, or

refrain from licensing, others to do so.



Defendants are not, and at all relevant times were not, entitled to or authorized to reproduce,


38. The reproduction, performance, distribution or other exploitation by Defendants of

unauthorized copies of the Pre-1972 Recordings, including, without limitation, Plaintiff’s

Recordings, constitute infringement of Plaintiff and the Other Class Member’s common law

copyrights in such recordings and violation of their exclusive rights therein. The Plaintiff and

Class Members have invested substantial time and money in the development of their Pre-1972

Recordings.

39. The Defendants have infringed the copyrights to the Pre-1972 Recordings at little

or no cost and without license or authority. They have copied the Pre-1972 Recordings owned

by Plaintiff and the other Class Members and publicly perform these recordings in Florida for

their subscribers as set forth in paragraph 3, above. Defendants have disregarded the Plaintiff’s

and other Class Members’ copyrights in and exclusive ownership of their Pre-1972 Recordings,




impaired their ability to sell, lawfully exploit, or otherwise control their Pre-1972 Recordings, all

for their own financial gain.

40. As a direct and proximate consequence of Defendants’ copyright infringement of

the Pre-1972 Recordings owned by Plaintiff and the Class Members, Plaintiff and the Class

Members have been damaged in an amount that is not as yet fully ascertained but which Plaintiff

is informed and believes, and alleges thereon, exceeds $100,000,000, according to proof.


conduct described above, the Defendants acted with oppression, fraud and/or malice. The

conduct of the Defendants has been despicable and undertaken in conscious disregard of the

Plaintiff’s and each Class Member’s rights. Accordingly, Plaintiff and the Class Members are

entitled to an award of punitive damages against Defendants in an amount sufficient to punish

and make an example of them according to proof.


will continue to cause, Plaintiff and each Class Member great and irreparable injury that cannot

fully be compensated or measured in money, and for which Plaintiff and each Class Member has

no adequate remedy at law. Plaintiff and the other Class Members are entitled to temporary,

preliminary and permanent injunctions, prohibiting further violation of Plaintiff’s and Class

Members’ rights in and exclusive ownership of their Pre-1972 Recordings in Florida.

SECOND CLAIM FOR RELIEF

(Misappropriation/Unfair Competition)


above as though set forth herein.






Florida.

45. Plaintiff’s Pre-1972 Recordings are valuable assets to Plaintiff. Plaintiff is engaged

in the selling and licensing of all forms of distribution, reproduction, performance or other

exploitation of their Pre-1972 Recordings, including, without limitation, by selling physical

compact discs and digital Phonorecord deliveries, licensing distribution and performances via

digital streaming transmission and licensing the master use in audio-visual recordings, such as

movies and commercials. From inception, such Pre-1972 Recordings have generated for

Plaintiff millions of dollars in revenues from such selling and licensing activities. Plaintiff’s

licensing the distribution of the Pre-1972 Recordings via digital streaming transmission has

increased significantly over the past several years, and now represent a significant portion of the

overall revenues received by Plaintiff.

46. Through marketing and operating the Service, Defendants are using and exploiting

the Pre-1972 Recordings without license or payment for Defendants’ financial gain and

commercial advantage. Defendants’ copying, distribution, reproduction and performance of Pre-

1972 Recordings through the Service compete with Plaintiff in several ways. First, Defendants

copying, distribution, reproduction and performance of the Pre-1972 Recordings without a

license and without payment place a significant, unfair and anticompetitive downward pressure

on the licensing fees Plaintiff is able to charge other services in the marketplace who do license

and pay for such rights from Plaintiff, resulting in a direct financial loss to Plaintiff. Second, as

digital transmissions are substituting over time for sales of sound recordings, Defendants are




diverting to themselves income Plaintiff would have otherwise collected from sales of Plaintiff’s

Pre-1972 Recordings, resulting in Defendants’ obtaining business that rightfully belongs to

Plaintiff, and lost dealings and lost profits to Plaintiff from Defendants’ anticompetitive acts.

Such actions by Defendants are designed for their commercial benefit to the detriment of

Plaintiff and the other Class Members. As a result, Plaintiff has been harmed by lost license fees

and lost sales.

47. Without a license or payment, SiriusXM copies, distributes, reproduces and

performs the Pre-1972 Recordings, and allows its subscribers to: (a) listen to Pre-1972

Recordings via satellite or online digital audio transmissions without purchasing or licensing

them; (b) replay, skip and remove (for such subscriber) sound recordings on certain channels

through its “Replay” feature and its “MySXM” feature; and (c) download Pre-1972 Recordings

to a subscriber’s device, including through its OnDemand feature.

48. Defendants have usurped for itself the fruits of Plaintiff and the other Class

Members’ financial and creative investments. Defendants are profiting from the results of

Plaintiff and the other Class Members’ expenditures and skill without having to incur any

expense or risk of its own in relation to the Pre-1972 Recordings. Furthermore, Defendants’

unauthorized use of the Pre-1972 Recordings is likely to cause confusion, mistake or deception

as to the source, sponsorship, affiliation or connection between Plaintiff and the other Class

Members, and Defendants.

49. Plaintiff and the Other Class Members have expended significant time, labor and

money in the making, marketing and distributing the Pre-1972 Recordings. Defendants have

paid nothing to Plaintiff or the Other Class Members for reproducing, performing, distributing or




otherwise exploiting the Pre-1972 Recordings. Without expending any time, labor or money of

its own, Defendants have simply appropriated the commercial qualities, reputation and salable

properties of the Pre-1972 Recordings, including, without limitation Plaintiff’s Recordings, by

unfairly and directly competing with Plaintiff and the other Class Members’ use, sale,

distribution and exploitation of the Pre-1972 Recordings. In so doing, Defendants have

undermined Plaintiff and the other Class Members’ substantial creative and financial investment

for Defendants’ own commercial benefit and have commercially damaged the market value of

the licenses Plaintiff and the Other Class Members are now and had been able to negotiate with

third parties to reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings.

50. Defendants’ acts constitute a misappropriation of Plaintiff and the other Class

Members’ rights in and to the Pre-1972 Recordings, and constitute misappropriation and unfair

competition involving record piracy under Florida law.

51. As a direct and proximate result of Defendants’ misappropriation and unfair

competition, Plaintiff and the Class Members are entitled to recover all proceeds and other

compensation received or to be received by Defendants from their misappropriation and unfair

competition of the Pre-1972 Recordings. Plaintiff and the members of the Class have been

damaged, and Defendants have been unjustly enriched, in an amount that is not as yet fully

ascertained but which Plaintiff is informed and believes, and alleges thereon, exceeds

$100,000,000, according to proof at trial. Such damages and/or restitution and disgorgement

should include a declaration by this Court that Defendants are constructive trustees for the

benefit of Plaintiff and the other Class Members, and an order that Defendants convey to




Plaintiff and Class Members the gross receipts received or to be received that are attributable to

Defendants misappropriation of the Pre-1972 Recordings.









fully be compensated or measured in money. Plaintiff and the other Class Members are entitled

to temporary, preliminary and permanent injunctions, prohibiting further violation of Plaintiff’s

and the other Class Members right to exclusive ownership of their Pre-1972 Recordings and

further acts of unfair competition and misappropriation.

THIRD CLAIM FOR RELIEF

(Conversion)





Florida.




56. Plaintiff and each Class Member have, and for all times relevant herein has had, an

intangible property interest in the time, effort and expense of producing the Pre-1972

Recordings. Additionally, as set forth in paragraphs 20 through 24 above, Plaintiff and each

Class Member have a common law copyright in each of the Pre-1972 Recordings.

57. Plaintiff and the Class Members created and produced the Pre-1972 Recordings as

part of a business venture to commercially reproduce, perform, distribute and otherwise exploit

the Pre-1972 Recordings.

58. By their acts and conduct alleged above, Defendants have converted Plaintiff’s and

the Class Members’ property rights in their Pre-1972 Recordings, including, without limitation

Plaintiff’s Recordings, for Defendants’ own use and wrongful disposition for financial gain.

59. As a direct and proximate result of Defendants’ conversion, Plaintiff and the

members of the Class have been damaged, and Defendants have been unjustly enriched, in an

amount that is not as yet fully ascertained but which Plaintiff is informed and believes, and

alleges thereon, exceeds $100,000,000 according to proof at trial. Defendants are constructive

trustees for the benefit of Plaintiff and Class Members, and the Court should order Defendants to

convey to Plaintiff and the Class Members the gross receipts received or to be received from

Defendants conversion of the Pre-1972 Recordings.













temporary, preliminary and permanent injunctions prohibiting further acts of conversion of their

Pre-1972 Recordings.

FOURTH CLAIM FOR RELIEF

(Civil Theft under Fla. Stat. § 772.11 for violations of Fla. Stat. § 812.014)

(Statutory Theft under Fla. Stat. § 812.014)




owners of all right, title and interest in and to their Pre-1972 Recordings and possession thereof

in Florida.


to copy, reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings in any

manner. Defendants are not, and at all relevant times were not, entitled to or authorized to use of

the Pre-1972 Recordings for copying, reproduction, performance, distribution or other

exploitation.

65. By their acts and conduct alleged above, Defendants knowingly obtained and used

the Pre-1972 Recordings with the intent to temporarily or permanently appropriate the Pre-1972




Recordings, including, without limitation Plaintiff’s Recordings, for Defendants’ own use and

for the use of the subscribers of the Service, and by so doing, Defendants have committed

statutory theft pursuant to Fla. Stat. § 812.014.




Plaintiff’s rights. Accordingly, Plaintiff and the Class Members are entitled to an award of treble

the amount of compensatory damages against Defendants, and each of them, pursuant to Fla.

Stat. § 772.11(1).

67. Plaintiff and each Class Member are also entitled to reasonable attorney’s fees and

court costs pursuant to Fla. Stat. § 772.11(1).




temporary, preliminary and permanent injunctions prohibiting further acts of statutory theft of

their Pre-1972 Recordings.

69. Plaintiff has submitted the demand letter attached hereto as Exhibit B required by

Fla. Stat. §772.11(1) as required to sustain a claim for Civil Theft. Thirty (30) days have run

since the demand was sent.




FIFTH CLAIM FOR RELIEF

(Preliminary Injunction and Permanent Injunction)



71. Plaintiff and each Class Members are, and at relevant times were, the exclusive

owners of all right, title and interest in and to their Pre-1972 Recordings and possession thereof

in Florida.


to copy, reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings in any

manner. Defendants are not, and at all relevant times were not, entitled to or authorized to use of

the Pre-1972 Recordings for copying reproduction, performance, distribution or other

exploitation.

73. By their acts and conduct alleged above, Defendants knowingly obtained and used

the Pre-1972 Recordings with the intent to temporarily or permanently appropriate the Pre-1972

Recordings, including, without limitation Plaintiff’s Recordings, for Defendants’ own use and

for the use of the subscribers of the Service.

74. Based on the facts alleged, Plaintiff and the other Class Members have a substantial

likelihood of success on the merits of their claims.

75. Defendants’ infringing conduct has caused, and is causing, substantial and

irreparable injury and damage to Plaintiff and the other Class Members in an amount not capable

of determination, and, unless restrained, will cause further irreparable injury, leaving Plaintiff

and the other Class Members without an adequate remedy at law.




76. The need to protect the copyrighted works of Plaintiff and the other Class Members

outweighs any harm that may be suffered by Defendants if injunctive relief is granted.

77. The public interest will be served by awarding Plaintiff and the other Class

Members injunctive relief as it will uphold the protection of copyrights and prevent infringement

upon such rights.

78. By reason of the foregoing facts, Plaintiff and the other Class Members are entitled

to preliminary and permanent injunctive relief against Defendants.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of itself and the other Class Members, prays for

Judgment against Defendants, and each of them, as follows:

Regarding the Class Action:

1. That this is a proper class action maintainable pursuant to the applicable provisions of the

Federal Rules of Civil Procedure; and

2. That the named Plaintiff is appropriate to be appointed representative of the respective

Class.

On The First Claim For Relief For Common Law Copyright Infringement against all

Defendants:


2. Punitive and exemplary damages according to proof trial; and








infringing in any manner the copyrights in the Pre-1972 Recordings in Florida, including


distributing, communicating to the public, uploading, linking to, transmitting, publicly

performing, or otherwise exploiting in any manner any of the Pre-1972 Recordings.

On The Second Claim For Relief For Misappropriation / Unfair Competition against all

Defendants:









misappropriating and/or unfairly competing in any manner the Pre-1972 Recordings in

Florida, including without limitation by directly or indirectly copying, reproducing,

downloading, distributing, communicating to the public, uploading, linking to,

transmitting, publicly performing, or otherwise exploiting in any manner any of the Pre-

1972 Recordings.

On the Third Claim For Relief For Conversion against all Defendants:












converting in any manner the Pre-1972 Recordings in Florida, including without

limitation by directly or indirectly copying, reproducing, downloading, distributing,

communicating to the public, uploading, linking to, transmitting, publicly performing, or

otherwise exploiting in any manner any of the Pre-1972 Recordings.

On the Fourth Claim For Relief For Statutory Fraud under Fla. Stat. § 812.014 against all

Defendants:


2. For treble the amount of compensatory damages pursuant to Fla. Stat. § 772.11(1);

3. For reasonable attorneys’ fees and court costs pursuant to Fla. Stat. § 772.11(1); and





committing theft in any manner of the Pre-1972 Recordings in Florida, including





distributing, communicating to the public, uploading, linking to, transmitting,

publicly performing, or otherwise exploiting in any manner any of the Pre-1972

Recordings.

On the Fifth Claim For Relief For Preliminary and Permanent Injunctive Relief against all

Defendants:





committing theft in any manner of the Pre-1972 Recordings in Florida, including


distributing, communicating to the public, uploading, linking to, transmitting,

publicly performing, or otherwise exploiting in any manner any of the Pre-1972

Recordings.

On All Causes of Action:

1. For reasonable attorney’s fees and costs as permitted by law;

2. For prejudgement interest at the legal rate; and

3. For such other and further relief as the Court deems just and proper.

JURY TRIAL DEMAND

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff and the Class

Members demand a trial by jury on claims alleged in this Complaint.




DATED: December 5, 2013

Respectfully submitted, HELLER WALDMAN, P.L. Attorneys for FLO & EDDIE, INC. 3250 Mary Street, Suite 102 Coconut Grove, Florida 33133 Telephone: (305) 448-4144 Telecopier: (305) 448-4155 By: s/Glen H. Waldman

Glen H. Waldman, Esq. Fla. Bar No. 618624 Eleanor T. Barnett, Esq. Fla. Bar No. 0355630 Jason Gordon, Esq. Fla. Bar No. 0012973

Henry Gradstein (pro hac vice motion is being filed) Maryann R. Marzano (pro hac vice motion is being filed) Robert E. Allen (pro hac vice motion is being filed) GRADSTEIN & MARZANO, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, California 90048 Telephone: (323) 776-3100 Fax: (323) 931-4990 And Evan S. Cohen (pro hac vice motion is being filed) 1180 South Beverly Drive, Suite 510 Los Angeles, California 90035 Telephone: (310) 556-9800 Fax: (310) 556-9801

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 5th day of December, 2013, I electronically filed the

foregoing with the Clerk of the Court by using the CM/ECF System.

/s/ Glen H. Waldman_____________ Glen H. Waldman




FLO & EDDIE, INC. v. SIRIUS XM RADIO, INC., ET AL CASE NO.: 13-CV-23182-Moore/Torres

SERVICE LIST

Edward Soto Bruce Rich WEIL GOTSHAL & MANGES LLP Benjamin Marks 1395 Brickell Ave, Suite 1200 WEIL GOTSHAL & MANGES Miami, FL 33131 767 Fifth Avenue Phone: (305) 577-3100 Florida, NY 10153-0119 Fax: (305) 374-7159 Phone: (212) 310-8000 Email: [email protected] Fax: (212) 310-8007 Email: [email protected] [email protected] Michael S. Oberman Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas Florida, NY 10036 Phone: (212) 715-9100 Fax: (212) 715-8000 Email: [email protected]


US_ACTIVE:\44392508\4\76061.0012

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION Case 1:13-CV-23182 (Moore)

-----------------------------------------------------------------x FLO & EDDIE, INC., individually and on behalf of all others similarly situated, Plaintiff, -against- SIRIUS XM RADIO INC., and DOES 1 through 10, Defendants. -----------------------------------------------------------------x

DEFENDANT SIRIUS XM RADIO INC.’S ANSWER TO THE

AMENDED CLASS ACTION COMPLAINT


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Defendant Sirius XM Radio Inc. (“Sirius XM” or “Defendant”), by its attorneys, Weil,

Gotshal & Manges LLP and Kramer Levin Naftalis & Frankel LLP, for its Answer to the

Amended Class Action Complaint (the “Amended Complaint”) of plaintiff Flo & Eddie, Inc.

(“Plaintiff”) states as follows:

INTRODUCTION

By this action, Plaintiff, the owner of sound recordings made nearly fifty years ago and

publicly performed widely ever since by myriad broadcast and other outlets, asks this Court to

radically transform the scope of protection accorded to sound recordings under Florida law.

Plaintiff asks the Court to recognize an exclusive right of public performance under Florida law

for sound recordings created before February 15, 1972, as well as an exclusive right to create

pre-broadcast server copies to facilitate such performances, in the absence of any authority

recognizing such a right. The result Plaintiff seeks would dramatically expand Florida law and

unravel a century of contrary understandings between the music and broadcasting industries.

Worse, it would immediately turn each radio and television broadcaster, webcaster, nightclub,

retail establishment, fitness center, and the like that performs such recordings in Florida into a

serial copyright infringer. Because no Florida court has ever recognized the claim Plaintiff seeks

to plead, the Amended Complaint fails to state a claim upon which relief may be granted and

should be dismissed in its entirety.

Each numbered response in this Answer to Plaintiff’s Amended Complaint (the

“Answer”) is made subject to the following limitations as if fully set forth therein. First, except

as expressly admitted or otherwise responded to below, Sirius XM denies all of the allegations in

the numbered paragraphs of the Amended Complaint. Second, any responses in this Answer do

not constitute Sirius XM’s acknowledgement or admission of the validity or relevance of such


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allegations. Third, Sirius XM denies any and all of Plaintiff’s characterizations of fact or law in

the Amended Complaint. Fourth, any responses in this Answer as to documents or

communications referenced in the Amended Complaint do not constitute Sirius XM’s

acknowledgement or admission of the admissibility or relevance of such documents or

communications. Further, Sirius XM hereby expressly denies that Plaintiff has accurately,

completely, or in context cited from such documents or communications; rather, such documents

and communications speak for themselves. Fifth, to the extent a response is deemed required to

any of the section headings in the Amended Complaint, Sirius XM denies any and all allegations

in such headings. The section headings in this Answer exist for the purpose of convenience only

and shall not be deemed admissions. Sixth, as to the prayer for relief, Sirius XM denies any

liability or obligation, in any form or amount, to Plaintiff or any putative class members.

Seventh, Sirius XM files this Answer without waiving and expressly reserving its arguments in

its Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) and Supporting Memorandum of

Law [D.E. 15] and Motion to Stay Proceedings Pending Resolution of Its Motion to Transfer

This Action to the Southern District of New York and Supporting Memorandum of Law [D.E.

16].

Sirius XM further reserves its right under the Federal Rules of Civil Procedure to amend

its pleading to add additional or other affirmative defenses or to delete and withdraw affirmative

defenses as may become necessary after additional discovery, investigation, or subsequent

developments relating to this case and expressly reserves its right to amend this Answer to assert

such additional affirmative defenses in the future.


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RESPONSES TO SPECIFIC ALLEGATIONS

1. The allegations contained in paragraph 1 of the Amended Complaint call for legal

conclusions to which no responsive pleading is required. To the extent a response is required,

Sirius XM denies the allegations.

2. Sirius XM denies knowledge or information sufficient to respond to the

allegations of paragraph 2 of the Amended Complaint.




allegations of paragraph 4 of the Amended Complaint, except it admits that music users have

enjoyed music on CDs in digital format since at least the 1980s and have accessed music via

digital streaming since at least the mid-1990s.

5. Sirius XM denies the allegations of paragraph 5 of the Amended Complaint,

except it admits that Sirius XM (a) has over 25 million subscribers to its satellite radio service;

(b) operates the sole national satellite radio service in the United States, which makes digital

audio transmissions via satellite technology; and (c) offers certain digital streaming services via

the Internet.


except it admits that Sirius XM’s nationwide broadcasts can be received in Florida: (a) via

satellite radio by subscribers who receive the satellite broadcast on authorized Sirius XM

receivers; (b) via the Internet by subscribers who receive the transmission on computers (at

www.siriusxm.com), smart phones and tablets (via the Sirius XM mobile applications), and/or

home audio devices/systems, such as Roku and Sonos; and (c) via satellite television channels on


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Dish Network. Sirius XM further admits that its Internet radio service has features identified as

“MySXM” and “On Demand” and that certain devices capable of receiving the Sirius XM

satellite service offer a feature identified as “Replay”; users of the “Replay” and “My SXM”

features are provided with limited pause, rewind and replay functionality depending upon the

device, channel and delivery method.


except it admits that Sirius XM (a) has a variety of packages it offers to subscribers at various

prices, including the “Premier” and “Select” packages; and (b) has approximately 70 channels

that are, at times, referred to as “Commercial-Free Music” channels, although the number of

such channels may vary across time and subscriber platform.


except it admits that Sirius XM’s service includes some channels that play sound recordings of

musical performances that initially were “fixed” (i.e., recorded) prior to February 15, 1972 (“Pre-

1972 Recordings”).


except it admits (a) that some Sirius XM servers located in New York state contain copies of

certain Pre-1972 Recordings, including certain recordings by the Turtles, to facilitate broadcasts

of those recordings; and (b) that recordings by the Turtles are among the thousands of recordings

transmitted as part of Sirius XM’s nationwide broadcasts, which are available to subscribers in

Florida.


except it admits that Sirius XM (a) pays royalties for digital audio transmissions of sound

recordings created on or after February 15, 1972 as required by federal copyright law; and (b)


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does not pay royalties for performances of Pre-1972 Recordings because no such royalties are

required by law.

11. Sirius XM denies the allegations in the first sentence of paragraph 11 of the

Amended Complaint. The allegations contained in the second sentence call for legal conclusions

to which no responsive pleading is required. To the extent a response is required, Sirius XM

denies the allegations.

12. The allegations contained in paragraph 12 of the Amended Complaint call for

legal conclusions to which no responsive pleading is required. To the extent a response is

required, Sirius XM denies the allegations.





allegations of paragraph 14 of the Amended Complaint, except that Sirius XM admits that

consumers enjoy music via satellite radio and Sirius XM Internet radio.



required, Sirius XM refers to the Digital Performing Rights in Sound Recordings Act and its

legislative history for the true contents of that act and Congress’s intent in passing it and

otherwise denies the allegations.





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except it admits that Sirius XM (a) pays royalties for digital audio transmissions of sound

recordings created on or after February 15, 1972 as required by federal copyright law; and (b)

does not pay royalties for performances of Pre-1972 Recordings because no such royalties are

required by law.



required, Sirius XM denies the allegations and, without limitation, expressly denies all

allegations of wrongdoing by Sirius XM.




allegations in the first sentence of paragraph 20 of the Amended Complaint. The remaining

allegations of paragraph 20 of the Amended Complaint call for legal conclusions to which no

responsive pleading is required. To the extent a response is required, Sirius XM denies the

allegations.


except it admits that Sirius XM is a Delaware corporation with its principal place of business in

New York City, Sirius XM has certain offices in Florida, and this Court has personal jurisdiction

over Sirius XM.


allegations in paragraph 22 of the Amended Complaint, except it admits that this Court has


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subject matter jurisdiction over the subject matter of this purported class action pursuant to 28

U.S.C. § 1332(d).


legal conclusions to which no responsive pleading is required. Sirius XM admits, however, that

venue is proper in this District.

24. Sirius XM does not respond to paragraph 24 of the Amended Complaint, which

contains no factual allegations about Sirius XM.

25. The allegations contained in paragraph 25 of the Amended Complaint are not

factual in nature; they merely characterize the basis on which Plaintiff purports to bring this

action and purport to reserve certain rights to the Plaintiff. Accordingly, no responsive pleading

is required. To the extent a response is required, Sirius XM denies the allegations.













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29. The allegations contained in the first and last sentences of paragraph 29 of the

Amended Complaint call for legal conclusions to which no responsive pleading is required. To

the extent a response is required, Sirius XM denies knowledge or information sufficient to

respond to the allegations in those sentences and also denies knowledge or information sufficient

to respond to the allegations in the second sentence of paragraph 29. Sirius XM denies the

allegations in the third sentence of paragraph 29, and does not respond to the fourth and fifth

sentences, which are not factual in nature.







required, Sirius XM denies knowledge or information sufficient to respond to the allegations in

the last sentence of paragraph 31 and denies the remaining allegations in paragraph 31.









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With Respect to the First Claim for Relief

34. Sirius XM repeats and incorporates by reference its responses to paragraphs 1-33

of the Amended Complaint.










38. The allegations contained in the first sentence of paragraph 38 of the Amended

Complaint call for legal conclusions to which no responsive pleading is required. To the extent a

response is required, Sirius XM denies the allegations and, without limitation, expressly denies

all allegations of wrongdoing by Sirius XM. Sirius XM denies knowledge or information

sufficient to respond to the allegations in the second sentence of paragraph 38 of the Amended

Complaint.

39. The allegations contained in the first sentence of paragraph 39 of the Amended

Complaint call for legal conclusions to which no responsive pleading is required. To the extent a

response is required, Sirius XM denies the allegations and, without limitation, expressly denies

all allegations of wrongdoing by Sirius XM. Sirius XM denies the allegations contained in the

remaining sentences of paragraph 39 of the Amended Complaint, except it admits that (a) some


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Sirius XM servers located in New York state contain copies made by Sirius XM of certain Pre-

1972 Recordings, including certain recordings by the Turtles, to facilitate broadcasts of those

recordings; and (b) recordings by the Turtles and certain other Pre-1972 Recordings are among

the many thousands of recordings transmitted as part of Sirius XM’s nationwide broadcasts,

which are available to subscribers in Florida.













With Respect to the Second Claim for Relief






12 US_ACTIVE:\44392508\4\76061.0012

required, Sirius XM denies knowledge or information sufficient to respond to the allegations of

paragraph 44 of the Amended Complaint.







47. Sirius XM denies the allegations contained in paragraph 47 of the Amended

Complaint, except it admits that (a) some Sirius XM servers located in New York contain copies

made by Sirius XM of certain Pre-1972 Recordings in order to facilitate broadcast of such

recordings; (b) certain Pre-1972 Recordings are among the many thousands of recordings

transmitted as part of Sirius XM’s nationwide broadcasts and online digital audio transmissions,

which are available to subscribers in Florida; (c) users of the “Replay” and “My SXM” features

are provided with limited skip functionality depending upon the device, channel and delivery

method. Sirius XM further admits that its Internet radio product has features identified as

“MySXM” and “On Demand” and that certain devices capable of receiving the Sirius XM

satellite service offer a feature identified as “Replay.”






13 US_ACTIVE:\44392508\4\76061.0012


allegations in the first sentence of paragraph 49 of the Amended Complaint. The remaining

allegations of paragraph 49 of the Amended Complaint call for legal conclusions to which no

responsive pleading is required. To the extent a response is required, Sirius XM admits that it

does not pay royalties for Pre-1972 Recordings because no such royalties are required by law,

but otherwise denies all allegations of wrongdoing by Sirius XM.


















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With Respect to the Third Claim for Relief





required, Sirius XM denies knowledge or information sufficient to respond to the allegations.



required, Sirius XM denies knowledge or information sufficient to respond to the allegations in

the first sentence of paragraph 56 and denies the allegations in the second sentence of paragraph

56.














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With Respect to the Fourth Claim for Relief

















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required, Sirius XM denies the allegations except admits that it received the letter attached to the

Amended Complaint as Exhibit B more than 30 days before filing of the Amended Complaint.

With Respect to the Fifth Claim for Relief











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With Respect to the Prayer for Relief

79. In response to the prayer for relief, Sirius XM denies that Plaintiff is entitled to

any of the relief requested.


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AFFIRMATIVE DEFENSES

80. Without assuming the burden of proof where such burden properly rests with

Plaintiff, and expressly reserving and not waiving the right to assert any and all such defenses at

such time and to such extent as discovery and factual developments establish a basis therefor,

Sirius XM hereby asserts the following defenses to the claims asserted in the Amended

Complaint.

First Affirmative Defense

(Failure to State a Claim)

81. The Amended Complaint fails to state any claim upon which relief can be

granted.

Second Affirmative Defense

(Laches)

82. Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches.

Third Affirmative Defense

(Waiver)

83. Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver.

Fourth Affirmative Defense

(Estoppel)

84. Plaintiff’s claims are barred, in whole or in part, by the doctrine of estoppel.

Fifth Affirmative Defense

(License)


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85. Plaintiff’s claims are barred, in whole or in part, by an implied license conveyed

by Plaintiff to Sirius XM or because Plaintiff otherwise licensed, authorized, or consented to

Sirius XM’s alleged conduct.

Sixth Affirmative Defense

(Fair Use)

86. Plaintiff’s claims are barred, in whole or in part, by the doctrine of fair use.

Seventh Affirmative Defense

(Statute of Limitations)

87. Plaintiff’s claims are barred, in whole or in part, by applicable statutes of

limitations.

Eighth Affirmative Defense

(Lack of Harm)

88. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has not suffered

any harm from Sirius XM’s alleged conduct.

Ninth Affirmative Defense

(Failure to Mitigate Damages)

89. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has failed to

take appropriate and necessary steps to mitigate its alleged damages, if any.

Tenth Affirmative Defense

(Lack of Ownership/Rights)

90. Plaintiff’s claims are barred, in whole or in part, because Plaintiff does not own

the purported works or rights at issue and/or lost such rights upon publication of the works.


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Eleventh Affirmative Defense

(Improper Demand)

91. Plaintiff’s Civil Theft claim is barred for failure to comply with the requirements of Fla.

Stat. § 772.11(1).

Twelfth Affirmative Defense

(Adequate Remedy at Law)

92. The injunctive relief sought by Plaintiff is barred, in whole or in part, because

Plaintiff has available an adequate remedy at law.

PRAYER FOR RELIEF

For the reasons set forth above, Sirius XM respectfully requests that the Court:

1. Dismiss Plaintiff’s Amended Complaint in its entirety with prejudice;

2. Enter judgment in favor of Defendant Sirius XM and against Plaintiff on each and

every cause of action set forth in the Amended Complaint;

3. Award attorneys’ fees and costs in favor of Defendant Sirius XM against Plaintiff

as permitted by applicable law; and

4. Award such other and further relief as the Court deems just and proper.


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Dated: December 23, 2013 Respectfully submitted,

/s/ Edward Soto Edward Soto (Fla. Bar No. 0265144) [email protected] Weil, Gotshal & Manges LLP 1395 Brickell Ave, Suite 1200 Miami, FL 33131 (305) 577-3100 R. Bruce Rich (pro hac vice pending) Benjamin E. Marks (pro hac vice pending) Todd Larson (pro hac vice pending) John R. Gerba (pro hac vice pending) Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 Tel: 212-310-8000 Michael S. Oberman (pro hac vice pending) Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York 10036 Tel: 212-715-9294

Attorneys for Defendant Sirius XM Radio Inc.


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CERTIFICATE OF SERVICE I hereby certify that on December 23, 2013, I electronically filed the foregoing with the

Clerk of the Court for the United States District Court for the Southern District of Florida by

using the CM/ECF system, which sent notification of such filing to all CM/ECF participants. All

other counsel shall be served by United States mail.

Plaintiff Flo & Eddie, Inc.’s Counsel: Glen H. Waldman Eleanor T. Barnett Jason Gordon Heller Waldman, P.L. 3250 Mary Street, Suite 102 Coconut Grove, Florida 33133 Henry Gradstein Maryann R. Marzano Robert E. Allen Gradstein & Marzano, P.C. 6310 San Vincente Blvd., Suite 510 Los Angeles, California 90048

/s/ Edward Soto________________ Edward Soto (Fla. Bar No. 0265144) [email protected] WEIL, GOTSHAL & MANGES LLP 1395 Brickell Ave, Suite 1200 Miami, FL 33131 (305) 577-3100 Attorneys for Defendant Sirius XM Radio Inc.


EGT,MEDREQ,REF_DISCOVU.S. District Court

Southern District of Florida (Miami)CIVIL DOCKET FOR CASE #: 1:13−cv−23182−KMM

Flo &Eddie, Inc. v. Sirius XM Radio, Inc., et alAssigned to: Judge K. Michael MooreCause: 28:1331 Federal Question

Date Filed: 09/03/2013Jury Demand: PlaintiffNature of Suit: 820 CopyrightJurisdiction: Federal Question

Plaintiff

Flo &Eddie, Inc.a California corporation, individuallyand on behalf of all others similarlysituated

represented byEleanor Trotman BarnettHeller Waldman, P.L.3250 Mary StreetSuite 102Coconut Grove, FL 33133305−448−4144Fax: 305−448−4155Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Harvey Wayne GellerGradstein &Mzrzano, P.C.6310 San Vincente Blvd.Suite 510Los Angeles, CA 90048323−776−7100Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Henry GradsteinGradstein &Marzano PC6310 San Vicente BoulevardSuite 510Los Angeles, CA 90048323−776−7100Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Jason GordonHeller Waldman, P.L.3250 Mary StreetSuite 102Coconut Grove, FL 33133305−448−4144Fax: 305−448−4155Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Maryann R. MarzanoGradstein &Marzano PC6310 San Vicente BoulevardSuite 510Los Angeles, CA 90048323−776−7100Email: [email protected] ATTORNEY

Case: 1:13-cv-23182-KMM As of: 02/20/2014 03:20 PM EST 1 of 10

mailto:[email protected]





PRO HAC VICEATTORNEY TO BE NOTICED

Robert E. AllenGradstein &Marzano PC6310 San Vicente BoulevardSuite 510Los Angeles, CA 90048323−776−7100Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Glen H. WaldmanHeller Waldman, P.L.3250 Mary StreetSuite 102Coconut Grove, FL 33133305−448−4144Fax: 305−448−4155Email: [email protected] TO BE NOTICED

V.

Defendant

Sirius XM Radio, Inc.a Delaware corporation

represented byBenjamin E. MarksWeil, Gotshal &Manges, LLP767 Fifth AvenueNew York, NY 10153Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Bruce S. MeyerWeil Gotshal &Manges767 5th AvenueNew York, NY 10153−0119212−310−8000Fax: 310−8007Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Edward SotoWeil Gotshal &Manges1395 Brickell AvenueSuite 1200Miami, FL 33131305−577−3177Fax: 374−7159Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

John R. GerbaWeil, Gotshal &Manges, LLP767 Fifth AvenueNew York, NY 10153Email: [email protected] ATTORNEY








PRO HAC VICEATTORNEY TO BE NOTICED

Michael S. ObermanKramer, Levin, Naftalis &Frankel, LLP1177 Avenue of the AmericasNew York, NY 10036212−715−9294Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

R. Bruce RichWeil Gotshal &Manges767 5th AvenueNew York, NY 10153−0119212−310−8153Fax: 310−8007Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Todd D. LarsonWeil, Gotshal &Manges, LLp767 Fifth AvenueNew York, NY 10153Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Defendant

Does 1 through 10

Date Filed # Docket Text

09/03/2013 1 COMPLAINT (Class Action) against Sirius XM Radio, Inc.. Filing fees $ 400.00receipt number 113C−6027049, filed by Flo &Eddie, Inc.. (Attachments: # 1Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Civil Cover Sheet, # 4 Summon(s)Summons − Sirius)(Waldman, Glen) (Entered: 09/03/2013)

09/03/2013 2 Judge Assignment to Judge K. Michael Moore (ail) (Entered: 09/04/2013)

09/03/2013 3 Clerks Notice to Filer re: Electronic Case. Parties Not Added. The Filer failed toadd all parties associated with the case.Filer is instructed in the future to add allparties during case opening. It is not necessary to re−file this document. (ail)(Entered: 09/04/2013)

09/04/2013 4 Summons Issued as to Sirius XM Radio, Inc.. (ail) (Entered: 09/04/2013)

09/04/2013 5 FORM AO 121 SENT TO DIRECTOR OF U.S. COPYRIGHT OFFICE (ail)(Entered: 09/04/2013)

09/05/2013 6 PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TOMAGISTRATE JUDGE EDWIN G. TORRES. PURSUANT to 28 U.S.C. § 636and the Magistrate Rules of the Local Rules of the Southern District of Florida, theabove captioned Cause is referred to United States Magistrate Judge Edwin G.Torres to take all necessary and proper action as required by law with respect toany and all pretrial discovery matters. Any motion affecting deadlines set by theCourt's Scheduling Order is excluded from this referral, unless specifically referredby separate Order. Signed by Judge K. Michael Moore on 9/5/2013. (nhl) (Entered:09/05/2013)





https://ecf.flsd.uscourts.gov/doc1/051012628240?caseid=427347&de_seq_num=2&pdf_header=2







09/05/2013 7 PAPERLESS PRETRIAL ORDER. THIS ORDER has been entered upon thefiling of the complaint. Plaintiff's counsel is hereby ORDERED to forward to alldefendants, upon receipt of a responsive pleading, a copy of this order. It is furtherORDERED that S.D. Fla. L.R. 16.1 shall apply to this case and the parties shallhold a scheduling conference no later than twenty (20) days after the filing of thefirst responsive pleading by the last responding defendant, or within sixty (60) daysafter the filing of the complaint, whichever occurs first. However, if all defendantshave not been served by the expiration of this deadline, Plaintiff shall move for anenlargement of time to hold the scheduling conference, not to exceed 120 daysfrom the filing of the Complaint. Within ten (10) days of the schedulingconference, counsel shall file a joint scheduling report. Failure of counsel to file ajoint scheduling report within the deadlines set forth above may result in dismissal,default, and the imposition of other sanctions including attorney's fees and costs.The parties should note that the time period for filing a joint scheduling report isnot tolled by the filing of any other pleading, such as an amended complaint orRule 12 motion. The scheduling conference may be held via telephone. At theconference, the parties shall comply with the following agenda that the Courtadopts from S.D. Fla. L.R. 16.1: (1) Documents (S.D. Fla. L.R. 16.1.B.1 and 2) −The parties shall determine the procedure for exchanging a copy of or a descriptionby category and location of all documents and other evidence that is reasonablyavailable and that a party expects to offer or may offer if the need arises. Fed. R.Civ. P. 26(a)(1)(B). (a) Documents include computations of the nature and extentof any category of damages claimed by the disclosing party unless thecomputations are privileged or otherwise protected from disclosure. Fed. R. Civ. P.26(a)(1)(C). (b) Documents include insurance agreements which may be at issuewith the satisfaction of the judgment. Fed. R. Civ. P. 26(a)(1)(D). (2) List ofWitnesses − The parties shall exchange the name, address and telephone number ofeach individual known to have knowledge of the facts supporting the materialallegations of the pleading filed by the party. Fed. R. Civ. P. 26(a)(1)(A). Theparties have a continuing obligation to disclose this information. (3) Discussionsand Deadlines (S.D. Fla. L.R. 16.1.B.2) − The parties shall discuss the nature andbasis of their claims and defenses and the possibilities for a prompt settlement orresolution of the case. Failure to comply with this Order or to exchange theinformation listed above may result in sanctions and / or the exclusion ofdocuments or witnesses at the time of trial. S.D. Fla. L.R. 16.1.M. Telephonicappearances are not permitted for any purpose. Upon reaching a settlement in thismatter the parties are instructed to notify the Court by telephone and to file aNotice of Settlement within twenty−four (24) hours. Signed by Judge K. MichaelMoore on 9/5/2013. (nhl) (Entered: 09/05/2013)

10/01/2013 8 WAIVER OF SERVICE Returned Executed by Flo &Eddie, Inc.. Sirius XMRadio, Inc. waiver sent on 9/15/2013, answer due 11/14/2013. (Gordon, Jason)(Entered: 10/01/2013)

10/08/2013 9 NOTICE of Attorney Appearance by Edward Soto on behalf of Sirius XM Radio,Inc.. Attorney Edward Soto added to party Sirius XM Radio, Inc.(pty:dft). (Soto,Edward) (Entered: 10/08/2013)

10/08/2013 10 MOTION to Appear Pro Hac Vice for John R. Gerba, Consent to Designation, andRequest to Electronically Receive Notices of Electronic Filing. Filing Fee $ 75.00.Receipt # 66909. (ksa) (Entered: 10/09/2013)

10/08/2013 11 MOTION to Appear Pro Hac Vice for Todd D. Larson, Consent to Designation,and Request to Electronically Receive Notices of Electronic Filing. Filing Fee $75.00. Receipt # 66910. (ksa) (Entered: 10/09/2013)

10/08/2013 12 MOTION to Appear Pro Hac Vice for Michael S. Oberman, Consent toDesignation, and Request to Electronically Receive Notices of Electronic Filing.Filing Fee $ 75.00. Receipt # 66911. (ksa) (Entered: 10/09/2013)

10/08/2013 13 MOTION to Appear Pro Hac Vice for Benjamin E. Marks, Consent to Designation,and Request to Electronically Receive Notices of Electronic Filing. Filing Fee $75.00. Receipt # 66912. (ksa) (Entered: 10/09/2013)

10/08/2013 14 MOTION to Appear Pro Hac Vice for R. Bruce Rich, Consent to Designation, andRequest to Electronically Receive Notices of Electronic Filing. Filing Fee $ 75.00.Receipt # 66913. (ksa) (Entered: 10/09/2013)









10/09/2013 15 MOTION to Change Venue and Supporting Memorandum of Law by Sirius XMRadio, Inc.. Responses due by 10/28/2013 (Attachments: # 1 Affidavit of EdwardSoto, # 2 Exhibit 1 − Complaint in Cal Superior Court, # 3 Exhibit 2 − Complaintin SDNY, # 4 Exhibit 3 − Volman biography, # 5 Errata 4 − Volman personalwebsite, # 6 Exhibit 5 − Volman twitter website, # 7 Exhibit 6 − Record CollectorNews article, # 8 Exhibit 7 − MyNorthwest article, # 9 Exhibit 8 − Kaylan twitterwebsite, # 10 Exhibit 9 − Kaylan personal website, # 11 Affidavit of TerrenceSmith)(Soto, Edward) (Entered: 10/09/2013)

10/09/2013 16 MOTION to Stay Proceedings Pending Resolution of its Motion to Transfer bySirius XM Radio, Inc.. Responses due by 10/28/2013 (Soto, Edward) (Entered:10/09/2013)

10/09/2013 17 Corporate Disclosure Statement by Sirius XM Radio, Inc. (Soto, Edward) (Entered:10/09/2013)

10/10/2013 18 PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant'sMotions to Appear Pro Hac Vice, Consent to Designation, and Request toElectronically Receive Notices of Electronic Filings 10 11 12 13 14 . UPONCONSIDERATION of the Motions, the pertinent portions of the record, and beingotherwise fully advised in the premises, it is ORDERED AND ADJUDGED thatthe Motions 10 11 12 13 14 are GRANTED. John R. Gerba, Todd D. Larson,Michael S. Oberman, Benjamin E. Marks, and R. Bruce Rich may appear Pro HacVice in this matter. The Clerk of the Court shall provide electronic notification ofall electronic filings to [email protected], [email protected],[email protected], [email protected] [email protected]. Signed by Judge K. Michael Moore on 10/10/2013. (nhl)(Entered: 10/10/2013)

10/21/2013 19 MOTION to Appear Pro Hac Vice for Bruce S. Meyer, Consent to Designation,and Request to Electronically Receive Notices of Electronic Filing. Filing Fee $75.00. Receipt # 67627. (ksa) (Entered: 10/22/2013)

10/23/2013 20 PAPERLESS ORDER. THIS CAUSE came before the Court on Defendant'sMotion to Appear Pro Hac Vice, Consent to Designation, and Request toElectronically Receive Notices of Electronic Filings 19 . UPONCONSIDERATION of the Motion, the pertinent portions of the record, and beingotherwise fully advised in the premises, it is ORDERED AND ADJUDGED thatthe Motion 19 is GRANTED. Bruce S. Meyer may appear Pro Hac Vice in thismatter. The Clerk of the Court shall provide electronic notification of all electronicfilings to [email protected]. Signed by Judge K. Michael Moore on10/23/2013. (nhl) (Entered: 10/23/2013)

10/23/2013 21 Plaintiff's MOTION for Extension of Time to File Response/Reply as to 15MOTION to Change Venue and Supporting Memorandum of Law and Motion toStay Pending Resolution of Motion to Transfer by Flo &Eddie, Inc.. (Gordon,Jason) (Entered: 10/23/2013)

10/24/2013 22 PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff'sMotion for Extension of Time to Respond to Motion to Transfer Venue and Motionto Stay 21 . UPON CONSIDERATION of the Motion, the pertinent portions of therecord, and being otherwise fully advised in the premises, it is hereby ORDEREDAND ADJUDGED that the Motion 21 is GRANTED IN PART AND DENIED INPART. Plaintiff may respond on or before October 28, 2013. Signed by Judge K.Michael Moore on 10/24/2013. (nhl) (Entered: 10/24/2013)

10/24/2013 Set/Reset Deadlines as to 16 MOTION to Stay Proceedings Pending Resolution ofits Motion to Transfer, 15 MOTION to Change Venue and SupportingMemorandum of Law. Responses due by 10/28/2013. (See DE 22.) (wc) (Entered:10/24/2013)

10/28/2013 23 RESPONSE to Motion re 15 MOTION to Change Venue and SupportingMemorandum of Law filed by Flo &Eddie, Inc.. Replies due by 11/7/2013.(Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Gordon, Jason)(Entered: 10/28/2013)







































10/28/2013 24 RESPONSE in Opposition re 16 MOTION to Stay Proceedings PendingResolution of its Motion to Transfer filed by Flo &Eddie, Inc.. (Gordon, Jason)(Entered: 10/28/2013)

11/04/2013 25 REPLY Memorandum in Further Support of 16 MOTION to Stay ProceedingsPending Resolution of its Motion to Transfer filed by Sirius XM Radio, Inc.. (Soto,Edward) Modified text on 11/5/2013 (asl). (Entered: 11/04/2013)

11/05/2013 26 REPLY to Response to Motion re 15 MOTION to Change Venue and SupportingMemorandum of Law filed by Sirius XM Radio, Inc.. (Attachments: # 1 Exhibit A− Factors Relevant to Transfer)(Soto, Edward) (Entered: 11/05/2013)

11/14/2013 27 Defendant's MOTION to Dismiss 1 Complaint, Defendant Sirius XM's PartialMotion to Dismiss Plaintiff's Complaint and Supporting Memorandum of Law bySirius XM Radio, Inc.. Responses due by 12/2/2013 (Attachments: # 1 Exhibit A −Revision of Copyright Laws Hearing Before the Select Subcomm, # 2 Exhibit B −Authorizing a Composer's Royalty in Revenues, # 3 Exhibit C − EconomicConditions in the Performing Arts)(Soto, Edward) (Entered: 11/14/2013)

11/14/2013 28 Joint SCHEDULING and Discovery REPORT − Rule 16.1 by Flo &Eddie, Inc.(Attachments: # 1 Exhibit Proposed Joint Scheduling Order)(Gordon, Jason)Modified text on 11/18/2013 (asl). (Entered: 11/14/2013)

11/18/2013 29 PAPERLESS ORDER OF REFERRAL TO MEDIATION. Trial having been set inthis matter, pursuant to Federal Rule of Civil Procedure 16 and Southern DistrictLocal Rule 16.2, it is ORDERED AND ADJUDGED as follows: 1. All parties arerequired to participate in mediation. The mediation shall be completed no later thansixty (60) days before the scheduled trial date. 2. Plaintiff's counsel, or anotherattorney agreed upon by all counsel of record and any unrepresented parties, shallbe responsible for scheduling the mediation conference. The parties are encouragedto avail themselves of the services of any mediator on the List of CertifiedMediators, maintained in the office of the Clerk of this Court, but may select anyother mediator. The parties shall agree upon a mediator and file a Notice ofMediator Selection within fifteen (15) days from the date of this Order. If there isno agreement, lead counsel shall notify the Clerk of Court in writing within fifteen(15) days from the date of this Order, and the Clerk shall designate a mediator fromthe List of Certified Mediators, which designation shall be made on a blind rotationbasis. 3. A place, date and time for mediation convenient to the mediator, counselof record, and unrepresented parties shall be established. If the parties cannot agreeto a place, date, and time for the mediation, they may motion the Court for an orderdictating the place, date, and time. 4. The appearance of counsel and each party orrepresentatives of each party with full authority to enter in a full and completecompromise and settlement is mandatory. If insurance is involved, an adjuster withauthority up to the policy limits or the most recent demand, whichever is lower,shall attend. 5. All discussions, representations and statements made at themediation conference shall be confidential and privileged. 6. At least ten (10) daysprior to the mediation date, all parties shall present to the mediator a brief writtensummary of the case identifying issues to be resolved. Copies of these summariesshall be served on all other parties. 7. The Court may impose sanctions againstparties and/or counsel who do not comply with the attendance or settlementauthority requirements herein or who otherwise violate the terms of this Order. Themediator shall report non−attendance and may recommend imposition of sanctionsby the Court for non−attendance. 8. The mediator shall be compensated inaccordance with the standing order of the Court entered pursuant to Rule 16.2.B.6,or on such basis as may be agreed to in writing by the parties and the mediatorselected by the parties. The cost of mediation shall be shared equally by the partiesunless otherwise ordered by the Court. All payments shall be remitted to themediator within 30 days of the date of the bill. Notice to the mediator ofcancellation or settlement prior to the scheduled mediation conference must begiven at least two (2) full business days in advance. Failure to do so will result inimposition of a fee for one hour. 9. If a full or partial settlement is reached in thiscase, counsel shall promptly notify the Court of the settlement in accordance withLocal Rule 16.2.F, by the filing of a notice of settlement signed by counsel ofrecord within ten (10) days of the mediation conference. Thereafter, the partiesshall forthwith submit an appropriate pleading concluding the case. 10. Within five(5) days following the mediation conference, the mediator shall file a Mediation
















Report indicating whether all required parties were present. The report shall alsoindicate whether the case settled (in full or in part), was continued with the consentof the parties, or whether the mediator declared an impasse. 11. If mediation is notconducted, the case may be stricken from the trial calendar, and other sanctionsmay be imposed. Signed by Judge K. Michael Moore on 11/18/2013. (nhl)(Entered: 11/18/2013)

11/18/2013 30 PAPERLESS ORDER SCHEDULING TRIAL IN MIAMI. This case is now setfor trial commencing the two−week trial period of September 22, 2014 at 9 a.m. inCourtroom 13−1, (thirteenth floor) United States Courthouse, 400 North MiamiAvenue, Miami, Florida. All parties are directed to report to the calendar call onSeptember 18, 2014 at 2 p.m., at which time all matters relating to the scheduledtrial date may be brought to the attention of the Court. A final pretrial conferenceas provided for by Rule 16, Fed. R. Civ. P., and Rule 16.1(C), S.D. Fla. L.R., isscheduled for September 9, 2014 at 11 a.m. A bilateral pretrial stipulation and allother pretrial preparations shall be completed NO LATER THAN FIVE DAYSPRIOR TO THE PRETRIAL CONFERENCE. All motions to amend the pleadingsor to join additional parties must be filed by the later of forty−five (45) days afterthe date of entry of this Order, or forty−five(45) days after the first responsivepleading by the last responding defendant. Any and all pretrial motions, includingmotions for summary judgment, must be filed no later than sixty (60) days prior tothe trial date. Responses to summary judgment motions must be filed no later thanfourteen (14) days after service of the motion, and replies in support of the motionmust be filed no later than seven (7) days after service of the response, with bothdeadlines computed as specified in Rule 6, Fed. R. Civ. P. All discovery shall becompleted seventy (70) days prior to the date of trial. The failure to engage indiscovery pending settlement negotiations shall not be grounds for continuance ofthe trial date. All exhibits must be pre−marked, and a typewritten exhibit listsetting forth the number and description of each exhibit must be submitted at thetime of trial. For a jury trial, counsel shall prepare and submit proposed juryinstructions to the Court. For a non−jury trial, the parties shall prepare and submitto the Court proposed findings of fact and conclusions of law fully supported bythe evidence which counsel expects the trial to develop and fully supported bycitations to law. The proposed jury instructions or the proposed findings of fact andconclusions of law shall be submitted to the Court no later than five (5) businessdays prior to the scheduled trial date. Final Pretrial Conference set for 9/9/201411:00 AM in Miami Division before Judge K. Michael Moore. Jury Trial set for9/22/2014 09:00 AM in Miami Division before Judge K. Michael Moore. CalendarCall set for 9/18/2014 02:00 PM in Miami Division before Judge K. MichaelMoore. Signed by Judge K. Michael Moore on 11/18/2013. (nhl) (Entered:11/18/2013)

12/02/2013 31 Plaintiff's MOTION for Extension of Time to File Response to Defendant's PartialMotion to Dismiss the Complaint re 27 Defendant's MOTION to Dismiss 1Complaint, Defendant Sirius XM's Partial Motion to Dismiss Plaintiff's Complaintand Supporting Memorandum of Law by Flo &Eddie, Inc.. Responses due by12/19/2013 (Waldman, Glen) (Entered: 12/02/2013)

12/03/2013 32 PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff'sMotion for Extension of Time to Respond to Motion to Dismiss 31 . UPONCONSIDERATION of the Motion, the pertinent portions of the record, and beingotherwise fully advised in the premises, it is hereby ORDERED ANDADJUDGED that the Motion 31 is GRANTED. Plaintiff may respond on or beforeDecember 9, 2013. Signed by Judge K. Michael Moore on 12/3/2013. (nhl)(Entered: 12/03/2013)

12/03/2013 Reset Deadlines per 32 Order as to 27 Defendant's MOTION to Dismiss 1Complaint, Defendant Sirius XM's Partial Motion to Dismiss Plaintiff's Complaintand Supporting Memorandum of Law. Responses due by 12/9/2013 (asl) (Entered:12/03/2013)

12/03/2013 33 MOTION for Extension of Time to Designate Mediator by Flo &Eddie, Inc..Responses due by 12/20/2013 (Gordon, Jason) (Entered: 12/03/2013)

12/04/2013 34 NOTICE by Flo &Eddie, Inc. of Filing of Order Denying Defendant's Motion toTransfer Venue Filed in Related Case Pending in the Central District of California











in Support of Plaintiff's Response to Motion to Transfer Venue (Attachments: # 1Exhibit Exhibit A)(Gordon, Jason) (Entered: 12/04/2013)

12/04/2013 35 PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff'sMotion for Extension of Time to Designate Mediator 33 . UPONCONSIDERATION of the Motion, the pertinent portions of the record, and beingotherwise fully advised in the premises, it is hereby ORDERED ANDADJUDGED that the Motion 33 is GRANTED. The Parties may designate amediator on or before December 10, 2013. Signed by Judge K. Michael Moore on12/4/2013. (nhl) (Entered: 12/04/2013)

12/05/2013 36 AMENDED COMPLAINT against All Defendants, filed by Flo &Eddie, Inc..(Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit EXhbiit B)(Gordon, Jason)(Entered: 12/05/2013)

12/06/2013 37 PAPERLESS ORDER. THIS CAUSE came before the Court upon the Defendant'sMotion to Dismiss 27 . This Motion is mooted by the filing of the AmendedComplaint 36 . Consequently, upon consideration of the Motion, the pertinentportions of the Record, and being otherwise fully advised in the premises, it ishereby ORDERED AND ADJUDGED that the Defendants' Motion 27 is DENIEDAS MOOT. Signed by Judge K. Michael Moore on 12/6/2013. (nhl) (Entered:12/06/2013)

12/10/2013 38 NOTICE by Flo &Eddie, Inc. of Mediator Designation (Gordon, Jason) (Entered:12/10/2013)

12/13/2013 39 Defendant's MOTION for Leave to File Excess Pages by Sirius XM Radio, Inc..(Soto, Edward) (Entered: 12/13/2013)

12/18/2013 40 WITHDRAWAL of Motion by Sirius XM Radio, Inc. re 39 Defendant's MOTIONfor Leave to File Excess Pages filed by Sirius XM Radio, Inc. (Soto, Edward)(Entered: 12/18/2013)

12/23/2013 41 Defendant's ANSWER and Affirmative Defenses to Amended Complaint by SiriusXM Radio, Inc.. (Soto, Edward) (Entered: 12/23/2013)

12/23/2013 42 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request toElectronically Receive Notices of Electronic Filing for Henry Gradstein. Filing Fee$ 75. Receipt # 70936. (cw) (Entered: 12/27/2013)

12/23/2013 43 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request toElectronically Receive Notices of Electronic Filing for Maryann R. Marzano.Filing Fee $ 75. Receipt # 70935. (cw) (Entered: 12/27/2013)

12/23/2013 44 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request toElectronically Receive Notices of Electronic Filing for Robert E. Allen. Filing Fee$ 75. Receipt # 70934. (cw) (Entered: 12/27/2013)

12/30/2013 45 PAPERLESS ORDER. THIS CAUSE came before the Court on Plaintiff's Motionsto Appear Pro Hac Vice, Consent to Designation, and Request to ElectronicallyReceive Notices of Electronic Filings 42 43 44 . The instant Motions have beenfiled by Movant Glen H. Waldman. However, the Movant has included electronic,rather than an original signatures on the Motions. Section 5J of the Court'sCM/ECF Administrative Procedures requires a motion to appear pro hac vice be"filed in the conventional manner." See also CM/ECF Admin. P. § 2B.Conventionally filed documents must include original signatures, as an "s/"signature is used only for electronically filed documents. See id. at § 3J. Becausethe proper CM/ECF Administrative Procedures and Local Rules were not followed,the Court will not grant the Motions. UPON CONSIDERATION of the Motions,the pertinent portions of the record, and being otherwise fully advised in thepremises, it is ORDERED AND ADJUDGED that the Motions 42 43 44 areDENIED. Signed by Judge K. Michael Moore on 12/30/2013. (nhl) (Entered:12/30/2013)

12/30/2013 Attorney Maryann R. Marzano; Robert E. Allen and Henry Gradstein terminatedper 45 Order. Notice of Termination delivered by US Mail to Robert Allen, HenryGradstein, Maryann Marzano. (asl) (Entered: 12/31/2013)

























01/07/2014 Attorneys Maryann R. Marzano representing Flo &Eddie, Inc. (Plaintiff); Robert E.Allen representing Flo &Eddie, Inc. (Plaintiff) and Henry Gradstein representingFlo &Eddie, Inc. (Plaintiff) Activated. (ksa) (Entered: 01/07/2014)

01/07/2014 46 Amended MOTION to Appear Pro Hac Vice, Consent to Designation, and Requestto Electronically Receive Notices of Electronic Filing for Henry Gradstein. FilingFee $ 75.00. Receipt # 70936. (ksa) (Entered: 01/07/2014)

01/07/2014 47 Amended MOTION to Appear Pro Hac Vice, Consent to Designation, and Requestto Electronically Receive Notices of Electronic Filing for Maryann R. Marzano.Filing Fee $ 75.00. Receipt # 70935. (ksa) (Entered: 01/07/2014)

01/07/2014 48 Amended MOTION to Appear Pro Hac Vice, Consent to Designation, and Requestto Electronically Receive Notices of Electronic Filing for Robert E. Allen. FilingFee $ 75.00. Receipt # 70934. (ksa) (Entered: 01/07/2014)

01/08/2014 49 PAPERLESS ORDER. THIS CAUSE came before the Court on Plaintiff's Motionsto Appear Pro Hac Vice, Consent to Designation, and Request to ElectronicallyReceive Notices of Electronic Filings 46 47 48 . UPON CONSIDERATION of theMotions, the pertinent portions of the record, and being otherwise fully advised inthe premises, it is ORDERED AND ADJUDGED that the Motions 46 47 48 areGRANTED. Henry Gradstein, Maryann R. Marazno, and Robert E. Allen mayappear Pro Hac Vice in this matter. The Clerk of the Court shall provide electronicnotification of all electronic filings to [email protected],[email protected], and [email protected]. Signed by Judge K.Michael Moore on 1/8/2014. (nhl) (Entered: 01/08/2014)

01/10/2014 50 PAPERLESS ORDER. THIS CAUSE came before the Court upon DefendantSirius XM Radio Inc.'s Motion to Transfer Venue to the United States DistrictCourt for the Southern District of New York 15 . Plaintiff Flo &Eddie, Inc.responded 23 and Defendant replied 26 . Plaintiff has filed three similar actionsconcerning rights to pre−1972 sound recordings in this Court, the Southern Districtof New York, and the Central District of California. Mot., at 2−3. Defendant seeksto transfer all three actions to New York. Id. The Parties do not dispute that theinstant action may have been brought in New York. See 28 U.S.C. § 1404(a); Mot.,at 5; Resp., at 3. Accordingly, this Court must apply a multi−factor test todetermine whether transfer is appropriate. See Global Innovation Tech. v. AcerAm. Corp., 634 F. Supp. 2d 1346, 1348 (S.D. Fla. 2009). This Court finds that,with two exceptions, the factors are neutral and do not favor either Florida or NewYork. This Court finds that the factor of Plaintiff's choice of forum favors Florida,the location in which the instant action was filed. This Court further finds that thefactor of trial efficiency and the interests of justice favors transfer to New York,where a similar action is pending. However, the California court has deniedDefendant's Motion for Transfer, thereby diminishing the utility of transfer to NewYork. See Order Denying Mot. to Transfer Venue, Case No. 13−5693, D.E. 43(C.D. Cal. Dec. 3, 2013). On these facts, Defendant has failed to meet its burden toestablish that this action should be transferred. UPON CONSIDERATION of theMotion, the pertinent portions of the record, and being otherwise fully advised inthe premises, it is hereby ORDERED AND ADJUDGED that the Motion 15 isDENIED. Signed by Judge K. Michael Moore on 1/10/2014. (nhl) (Entered:01/10/2014)

01/13/2014 51 PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant'sMotion to Stay Pending Resolution of Motion to Transfer 16 . This Court hasdenied Defendant's Motion to Transfer. See Paperless Order 50 . Consequently,upon consideration of the Motion, the pertinent portions of the Record, and beingotherwise fully advised in the premises, it is hereby ORDERED ANDADJUDGED that Defendant's Motion 16 is DENIED AS MOOT. Signed by JudgeK. Michael Moore on 1/13/2014. (nhl) (Entered: 01/13/2014)

01/14/2014 52 NOTICE OF UNAVAILABILITY by Flo &Eddie, Inc. for dates of 2/6/14 −2/9/14; 3/21/14 − 3/24/14 (Waldman, Glen) (Entered: 01/14/2014)

01/28/2014 53 MOTION for Reconsideration re 30 Scheduling Order,,,,,,,,,, (Motion forConference to Reconsider Scheduling Order and Supporting Memorandum of Law)by Sirius XM Radio, Inc.. (Attachments: # 1 Exhibit A − Jan. 10, 2014 MinuteEntry)(Soto, Edward) (Entered: 01/28/2014)




















01/30/2014 54 NOTICE by Flo &Eddie, Inc. of Intention to File Response to Defendant, SiriusXM Radio, Inc.'s Motion for a Conference to Reconsider the Scheduling Order(Waldman, Glen) (Entered: 01/30/2014)

02/07/2014 55 RESPONSE in Opposition re 53 MOTION for Reconsideration re 30 SchedulingOrder,,,,,,,,,, (Motion for Conference to Reconsider Scheduling Order andSupporting Memorandum of Law) filed by Flo &Eddie, Inc.. (Attachments: # 1Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Waldman, Glen) (Entered: 02/07/2014)

02/07/2014 57 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request toElectronically Receive Notices of Electronic Filing for Harvey Wayne Geller.Filing Fee $ 75.00. Receipt # 73560. (ksa) (Entered: 02/13/2014)

02/12/2014 56 REPLY to Response to Motion re 53 MOTION for Reconsideration re 30Scheduling Order,,,,,,,,,, (Motion for Conference to Reconsider Scheduling Orderand Supporting Memorandum of Law) filed by Sirius XM Radio, Inc.. (Soto,Edward) (Entered: 02/12/2014)

02/14/2014 58 PAPERLESS ORDER. THIS CAUSE came before the Court on Plaintiff's Motionto Appear Pro Hac Vice, Consent to Designation, and Request to ElectronicallyReceive Notices of Electronic Filings 57 . UPON CONSIDERATION of theMotion, the pertinent portions of the record, and being otherwise fully advised inthe premises, it is ORDERED AND ADJUDGED that the Motion 57 isGRANTED. Harvey Wayne Geller may appear Pro Hac Vice in this matter. TheClerk of the Court shall provide electronic notification of all electronic filings [email protected]. Signed by Judge K. Michael Moore on 2/14/2014. (nhl)(Entered: 02/14/2014)

02/20/2014 59 PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant'sMotion for Conference to Reconsider Scheduling Order 53 . Plaintiff responded inopposition 55 and Defendant replied 56 . UPON CONSIDERATION of theMotion, the pertinent portions of the record, and being otherwise fully advised inthe premises, it is hereby ORDERED AND ADJUDGED that the Motion 53 isDENIED. Signed by Judge K. Michael Moore on 2/20/2014. (nhl) (Entered:02/20/2014)














