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New Class Action Filed Against Apple over iTunes Radio


Zenbu Magazines has filed a class action lawsuit against Apple and a separate class action against Beats Electronics. The case is about Zenbu owning the copyrights to many of the songs that are found listed in Apple's iTunes Radio. Patently Apple presents you with the facts of the case along with the specific Class Action allegations as presented in Zenbu's court filing.


The Facts of the Case According to Zenbu


The following is found in Zenbu's formal complaint before the court: Since September 18, 2013, iTunes Radio has been provided by Apple to members of the public throughout the United States. Apple delivers and streams music through its iTunes software, which itself is available for a wide variety of both Mac and PC formats and hardware (for example, computers, laptops, smartphones, Apple TV, etc.). In marketing iTunes Radio, Apple represents that subscribers have access to over 20 million songs, with "No ads. No breaks. Just great music."


Apple provides iTunes Radio on a free basis to iTunes users, supporting the service by selling advertising, and linking each sound recording performed to a page in the iTunes Store where the user may purchase the song for download.


Among the sound recordings that Apple publicly performs, reproduces, and distributes on an ongoing and regular basis are pre-1972 recordings, including at least one for which Zenbu owns the sound recording copyright, specifically "Sin City," by The Flying Burrito Brothers, from the Album, "The Gilded Palace of Sin," which was fixed in a tangible medium (i.e., recorded) in 1969.


In order to stream music recordings to the public, Apple has reproduced and copied, and continues to reproduce and copy, pre-1972 recordings, including to one or more servers and storage devices, and uses technology or systems that result in a copy of pre-1972 recordings being distributed to its subscribers' computers or storage devices.


Apple is aware that it does not have any license, right, or authority to reproduce, perform, distribute, or otherwise exploit via iTunes Radio any pre-1972 recordings, including pre-1972 recordings owned by Zenbu.


Apple is also aware which of the recordings it reproduces, performs, and distributes or otherwise exploits via iTunes Radio are pre-1972 recordings.


Class Action Allegations


The court document further presents Zenbu's Class Action allegations as follows:


Zenbu seeks to represent a class comprised of all owners of sound recordings of musical performances that initially were "fixed" (i.e., recorded) prior to February 15, 1972, which sound recordings were reproduced, performed, distributed, and/or otherwise exploited by Apple via iTunes Radio, and for which Apple was not authorized or licensed to reproduce, perform, distribute, or otherwise exploit.


Numerosity – The members in the proposed class are so numerous that individual joinder of all members is impracticable, and the disposition of the claims of all class members in a single action will provide substantial benefits to the parties and Court.


Commonality – Common questions of law and fact exist as to all members of the putative class and subclass, which do not vary from member to member, and which may be resolved without reference to individual facts and circumstances include, without limitation:


a. Whether Apple reproduced, performed, distributed or otherwise exploited via iTunes Radio pre-1972 sound recordings;

b. Whether Apple was authorized by the owners of the sound recording copyrights to reproduce, perform, distribute, or otherwise exploit the sound recordings via iTunes Radio pre-1972 recordings;

c. Whether Apple paid royalties or licensing fees for pre-1972 sound recordings that it reproduced, performed, distributed, or otherwise exploited via iTunes Radio;

d. Whether Apple's reproduction, performance, distribution, or other exploitation via iTunes Radio of pre-1972 sound recordings constitutes a violation of Cal. Civ. Code § 980(a)(2);

e. Whether Apple's reproduction, performance, distribution or other exploitation via iTunes Radio of pre-1972 sound recordings constitutes an unfair business practice in violation of Cal. Bus. & Prof. Code §§ 17200, et seq.;

f. Whether Apple's reproduction, performance, distribution or other exploitation via iTunes Radio of pre-1972 sound recordings constitutes misappropriation;

g. Whether Apple's reproduction, performance, distribution or other exploitation via iTunes Radio of pre-1972 sound recordings constitutes conversion;

h. The proper equitable, injunctive, and prospective relief;

i. The proper amount of actual or compensatory damages;

j. The proper amount of restitution or disgorgement;

k. The proper amount of punitive damages; and

l. The proper amount of reasonable litigation expenses and attorneys' fees.


Typicality – Zenbu's claims are typical of the claims of members of the class in that they are based on the same underlying facts, events, and circumstances relating to Apple's conduct. Zenbu's interests are consistent with, and not antagonistic to, those of the other class members it seeks to represent.


Adequacy – Zenbu will fairly and adequately represent and protect the interests of the class, has no interests incompatible with the interests of the class, and has retained counsel competent and experienced in class action and music copyright litigation.


Predominance – Questions of law and fact common to the class predominate over any questions affecting only individual class members.


Superiority – Class treatment is superior to other options for resolution of the controversy because individual litigation of the claims of all class members is impracticable. The claims of the individual members of the class may range from small sums to larger sums. For those class members with smaller claims, the expense and burden of individual litigation may not justify pursuing the claims individually. Moreover, even if every class member could afford to pursue individual litigation, that would greatly tax the court system, as well as present potential for varying, inconsistent, or contradictory judgments, and magnify the delay and expense to all parties and the court system resulting from multiple trials of the same factual issues.


The Causes of Action in the Case


1. Violation of California Civil code

2. Violation of California Business and Professional code

3. Misappropriation: Apple has misappropriated, and continues to misappropriate, for its own commercial benefit, the exclusive ownership interests in and to the pre-1972 recordings, by reproducing, performing, distributing, or otherwise exploiting via iTunes Radio pre-1972 recordings; and

4. Conversion: Apple has converted for its own use the property rights of Zenbu and each member of the class, in the pre-1972 recordings, and has dispossessed Zenbu and each member of the class of their property rights.


The case was officially filed yesterday by Zenbu Magazines with the U.S. District Court Northern District of California. The case has been assigned to Magistrate Judge Howard R. Lloyd.


In November The Financial Times reported that Apple is planning to include Beats in the next major update to iOS later in 2015 which could effectively give the product a permanent spot on the home screen of millions of Apple devices.


On Wednesday we reported that Apple had acquired Music Analytics Service Semetric which is likely to play a role in Apple's iTunes or iTunes Radio.


The timing of this lawsuit is going to be an annoyance to Apple, which is exactly what the Zenbu Magazine is hoping for, and moreover, a quick settlement to make it go away. Whether Apple will decide to quickly settle this case or fight it out to the end is unknown at this time.


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