Atl. Recording Corp. v. Spinrilla, LLC

• Decision Date: 30 November 2020
• Docket Number: CIVIL ACTION NO. 1:17-CV-00431-AT
• Citation: 506 F.Supp.3d 1294
• Parties: ATLANTIC RECORDING CORPORATION, et al., Plaintiffs, v. SPINRILLA, LLC, and Jeffery Dylan Copeland, Defendants.
• Court: U.S. District Court — Northern District of Georgia

506 F.Supp.3d 1294

ATLANTIC RECORDING CORPORATION, et al., Plaintiffs,

v.SPINRILLA, LLC, and Jeffery Dylan Copeland, Defendants.

CIVIL ACTION NO. 1:17-CV-00431-AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed November 30, 2020

Andrew H. Bart, Pro Hac Vice, Ava U. McAlpin, Jenner & Block LLP, New York, NY, James Andrew Lamberth, Troutman Pepper Hamilton Sanders LLP, Atlanta, GA, Previn Warren, Jenner & Block, LLP, Washington, DC, for Plaintiffs.

Kaitlyn Anne Haase, David M. Lilenfeld, Kennington Groff, Lilenfeld, P.C., Robin L. Gentry, Lilenfeld PC, Atlanta, GA, for Defendants.

OPINION AND ORDER

Amy Totenberg, United States District Judge

This action for copyright infringement is before the Court on the parties' Cross Motions for Summary Judgment [Doc. 224, 226, 262, 264]¹ and Plaintiff's Motion to Strike Expert Testimony [Doc. 322]. The Court's rulings are set forth below.

I. FACTUAL BACKGROUND

Defendant, Jeffery Dylan Copeland ("Copeland") is the founder, manager, and sole member of Spinrilla, LLC ("Spinrilla"). (See Pl.'s Statement of Undisputed Material Facts ("Pl. SMF") ¶¶ 2, 3, 41.) Copeland launched the Spinrilla website in early 2013 as a streaming and downloading service for hip-hop music. (Id. ¶¶ 1, 4.) Spinrilla, "the 800-lb gorilla of hip-hop mixtapes," launched as a music app on the iOS platform in May 2013 and on the Android platform in early 2014. (Id. ¶¶ 5, 6). Defendants claim to have created Spinrilla as a platform for users to listen to and discover "independent and emerging hip-hop artists." (Def.'s Statement of Material Facts ("Def. SMF") ¶¶ 15, 16.) Since its inception, Spinrilla has grown to include approximately 19 million registered users and 1.5 million daily active users, 14,000 of whom have the ability to upload audio files. (Pl. SMF ¶ 7; Def. SMF ¶ 63.) As of October 2017, there were approximately 1.4 million songs on Spinrilla. (Def. SMF ¶ 99; J. Copeland Dep. 141:19-25, Oct. 19, 2017.)

Plaintiffs, a collection of the largest record companies in the U.S., filed suit against Spinrilla on February 3, 2017, claiming that Spinrilla has allowed and participated in copyright infringement of thousands of Plaintiff's sound recordings. In an Amended Complaint filed on October 19, 2017, Plaintiffs listed approximately 2,000 copyright infringing sound recordings. (Am. Compl., Ex. A.) Plaintiffs last amended their complaint on December 18, 2018 to include 4,082 total works in suit for which Plaintiffs own the copyrights and which Plaintiffs allege were infringed by Defendants. (Unopposed Amendment to Ex. A to Am. Compl.) Defendants admit that the 4,082 sound recordings listed were uploaded to and downloaded or streamed from Spinrilla. (Def. Resp. Pl. SMF ¶ 60.)

General users of Spinrilla's website and apps may stream and download songs and mixtapes that have been uploaded by "DJ[s]" with "artist account[s]." (Pl. SMF ¶¶ 8, 9, 12.) Defendants grant artist accounts to users who submit applications and are approved by Spinrilla for upload rights. (Id. ¶ 9.) DJs who have artist accounts can directly upload "mixtapes" that contain mp3 files of sound recordings to the Spinrilla site. (Id. ¶¶ 12, 14, 15.) Defendant Copeland has at times helped users upload mixtapes when users requested such help. (Id. ¶ 25; J. Copeland Dep. at 122:3-123:10, Oct. 19, 2017.) Plaintiffs identified forty-five mixtapes containing 165 works in suit for which Plaintiffs own the copyrights that were uploaded directly by Copeland, the last of which was uploaded on July 5, 2016. (Pl. SMF ¶ 61.) Defendants concede that Copeland uploaded thirty-eight of the forty-five mixtapes but deny knowing that those mixtapes contained Plaintiffs' works in suit. (Def. Resp. Pl. SMF ¶ 61.) Copeland testified that he did not listen to the mixtapes prior to uploading them and did not look at the track names or artists. (Id. ; J. Copeland Dep. 314:15-315:2, Oct. 19, 2017.)

Copeland also promotes certain mixtapes by placing them on "Sponsored" or "Featured" sections or under "special banners" on the Spinrilla website and apps. (Pl. SMF ¶¶ 36-38.) Plaintiffs contend that Defendants promoted, advertised, and directed users to multiple mixtapes containing copyright infringing sound recordings. (Id. ¶¶ 68-72.) Defendants assert that Copeland only promotes mixtapes at the request of users and without listening to the content of the recordings. (Def. Resp. Pl. SMF ¶ 72; J. Copeland Dep. at 201:7-12, Oct. 19, 2017.) Therefore, Copeland denies having knowledge that the mixtapes identified by Plaintiffs contained the copyright infringing works in suit. (Def. Resp. Pl. SMF ¶ 72). Copeland also, at times, communicated with DJs directly and gave them feedback on their mixtapes. However, Copeland states that he typically did not listen to the mixtapes on which he would comment. Defendants claim that when Copeland communicated with users who uploaded copyright infringing sound recordings and "told users their mixtape ‘sounded great,’ he was saying that as customer service rather than a factual statement." (Id. ¶ 89.)

In March 2015, Plaintiffs, through the Recording Industry Association of America ("RIAA"), began sending notices of copyright infringement to Spinrilla. Between March 4, 2015 and February 6, 2017, a team of investigators under the direction of Carlos Linares, Vice President of Anti-Piracy Legal Affairs at RIAA, sent fifty-nine "takedown notices" requesting that Spinrilla remove 407 identified sound recordings from its website and apps. (C. Linares Declaration ¶ 9.) Defendants claim that they removed each identified infringing sound recording immediately upon receipt of a "takedown notice." (J. Copeland Dep. 66:14-15, Oct. 31, 2017.) According to Defendants, Spinrilla also "manually monitored" the site a few times a week by directly reviewing which songs were on the site and removed content that was sold on iTunes or Spotify. (Def. SMF ¶ 100; J. Copeland Dep. at 67:13-24, Oct. 31, 2017.)² However, Copeland also stated that he does not listen to mixtapes after they are posted on Spinrilla. (Id. ¶ 89; J. Copeland Dep. at 116:4-7, Oct. 19, 2017.) Plaintiffs dispute the assertion that Defendants took expeditious action in response to every takedown notice, and Plaintiffs identify particular sound recordings that were not removed from Spinrilla in response to takedown notices from RIAA. (Pl. Resp. Def. SMF ¶ 100.)³ Defendants assert that they only failed to remove a sound recording identified in a takedown notice if the notice did not contain a URL which would allow Defendants to identify the infringing item on its site. (Def. SMF ¶ 193.) Plaintiffs also claim that infringing sound recordings that were removed in response to their takedown notices were subsequently re-uploaded to Spinrilla. (Pl. SMF ¶ 130.)⁴

In January 2015, UMG Recordings, Inc. ("UMG"), one of the Plaintiffs, informed Defendants about the availability of the content recognition software Audible Magic. (Pl. SMF ¶ 134.)⁵ Spinrilla first implemented Audible Magic in December 2015, almost three years after it launched. (Pl. SMF ¶ 134; Def. SMF ¶ 112.) Defendants assert that they have used Audible Magic to scan every audio file uploaded since December 2015 and more than 100,000 files that were uploaded have been blocked from publication on Spinrilla. (Id. ¶¶ 112, 114.) In May 2016, six months after implementing Audible Magic and at Plaintiffs' suggestion, Defendants performed a back scan of the already existing Spinrilla catalog of sound recordings and found over one thousand copies of Plaintiffs' works in suit. (Def. Resp. Pl. SMF ¶ 135.) Spinrilla performed two additional back scans in February and August 2017, finding over one thousand additional copies of Plaintiffs' works in suit. (Pl. SMF ¶ 136; Def. SMF ¶ 123.) Plaintiffs note that, based on data from the back scans, 98,675 files were blocked by Audible Magic after the files had already been published on Spinrilla and had been streamed or downloaded by users as of October 2017. (Pl. Resp. Def. SMF ¶ 114.)

On several occasions, Copeland communicated with Spinrilla DJs about mixtape tracks that were blocked by Audible Magic's filter. While Copeland informed users that Spinrilla does not allow copyright infringing sound recordings on its platform,⁶ he also at times instructed users to modify sound recordings in order to get past Audible Magic's filter.⁷ Copeland claims that by telling a DJ to slow down a track to get past copyright detection software he was instructing the user to "create a derivative work that is so different that it's not the same as what's being flagged." (J. Copeland Dep. at 30:20-22, Oct. 31, 2017.) On at least two occasions, Copeland listened to a sound recording blocked by Audible Magic, determined that it was a "remix" which was different than the commercial version, and "pushed it through" to be available on a user's mixtape. (Def. Resp. Pl. SMF ¶ 63.)

When Spinrilla launched in 2013, the "Web Site Terms and Conditions of Use" included a notification that users must agree to be bound by "all applicable laws and regulations." (Def. SMF ¶ 90.) In March 2015, the "Terms and Conditions" were updated to include the statement: "[y]ou will not submit content that is copyrighted or subject to third party proprietary rights." (Def. SMF ¶ 92.) Spinrilla updated its "Terms of Service" again in June 2017 to include a "Copyright Policy" and a description of its "DMCA Notice and Procedure for Copyright Infringement Claims." (Id. ¶ 95.) The updated "Terms of Service" also contained a separate paragraph about suspension and termination of user accounts for violation of Spinrilla's terms of use. (Id. ) On July 23, 2017, Spinrilla added a paragraph entitled "Repeat Infringement" to its Terms of Service, which addressed termination of user accounts due specifically to copyright infringement. (Id. ¶ 96; see S. Wilkens Decl., Ex. 17 at 25 ("Users may not upload music or other content owned by someone else in a...