Broadcast Music, Inc. v. CBS, INC.
| Decision Date | 03 November 1976 |
| Docket Number | No. 76 Civ. 4483(MP).,76 Civ. 4483(MP). |
| Citation | 421 F. Supp. 592,40 CO Bull. 213 |
| Parties | BROADCAST MUSIC, INC., Plaintiff, v. CBS, INC., Defendant. |
| Court | U.S. District Court — Southern District of New York |
Hughes, Hubbard & Reed, New York City, for plaintiff; Amalya L. Kearse, George A. Davidson, Pamela R. Chepiga, New York City, of counsel.
Cravath, Swaine & Moore, New York City, for defendant; Alan J. Hruska, R. John Cooper, New York City, of counsel.
DECISION
The plaintiff, BMI, moves to restrain the defendant, CBS, by preliminary injunction from relitigating a copyright misuse claim which has already been tried and determined in this Court by Judge Lasker in the case of CBS v. ASCAP, reported at 400 F.Supp. 737 (S.D.N.Y.1975). That determination is presently on appeal to the Court of Appeals, Second Circuit; the appeal was argued on October 14, 1976 and decision was reserved. This suit was filed on October 12, 1976 and plaintiff contends that the Court's power to enjoin the state proceedings exists whether or not Judge Lasker's determination is subject to alteration through appellate review. Woods Exploration & Producing Co. v. Aluminum Company of America, 438 F.2d 1286, 1311-16 (5th Cir.), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972).
The opposition to the provisional remedy sought rests primarily on the contention that the issues in the State Court case are not the same and that the plaintiff does not meet the criterion of facing irreparable damage unless a preliminary injunction is granted.
The pertinent facts are as follows.
In December 1969, CBS sued ASCAP, BMI and others in this Court for copyright misuse. CBS charged that the agreements and practices employed by the defendants therein in obtaining performance rights from writers and publishers of music and in licensing those rights to music users such as CBS, constituted copyright misuse and price fixing in violation of the Sherman Act, 15 U.S.C. § 1 et seq. After an eight week trial, on September 22, 1975, Judge Lasker dismissed the CBS complaint on the merits.
Meanwhile, on January 10, 1975, BMI commenced a state court action against CBS for damages on the same contract involved in the case decided by Judge Lasker. CBS interposed an answer and asserted as a fourth affirmative defense, the same claim of copyright misuse under consideration in the federal court suit. CBS contends that it added to its previous contentions in the federal suit the further claim that the state's anti-trust law was violated, New York's Donnelly Act, Gen.Bus.L. § 340, and that this new matter makes its claim against BMI go beyond Judge Lasker's decision in the federal suit.
In the federal court case, CBS stipulated that a decision on the feasibility of direct licensing from members of ASCAP would be determinative on the feasibility of direct licensing from BMI affiliates, i. e., that both would involve the same difficulty of sufficient flexibility to meet CBS' direct licensing requirements. The decision by Judge Lasker reflects explicit consideration of this stipulation on the substantive merits of the case decided in favor both of ASCAP and BMI, 400 F.Supp. at 751, n.9. If this is so, the federal decision represents a final determination of the question asserted in the fourth defense of the state court case. CBS suggests on this motion that the...
To continue reading
Request your trial