Filed Complaint

Case 1:16-cv-01406-BMC Document 1 Filed 03/22/16 Page 1 of 42 PageID #: 1
Richard M. Garbarini (RG 5496)

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

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

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

1.
Plaintiffs are the beneficial rights holders to one hundred and eighteen (118)
copyright registrations covering one hundred and forty eight (148) musical recordings.
2.
Defendant ADS owns and operates an internet music streaming service which can
only be accessed through Defendant AMAZON and its Amazon Prime product. Defendant
AMAZON is one of the worlds largest retailers and sells a bundle of products called Amazon
Prime.
3.
Defendants have engaged in a systematic process of infringing the copyrighted
recordings of Plaintiffs and the Putative Class by reproducing, and offering the copyrighted
recordings for streaming, permanent digital download, and for use in Defendant ADS Locker
Service. Defendants failed to serve a valid notice of Intent for a Compulsory License (NOI)
pursuant to Section 115 of the Act prior to exploiting Plaintiffs and the Putative Class
recordings.
4.
Defendants also artificially deflated their royalty payment obligations to almost
nothing by: (i) illegally manipulating the per stream royalty rate, (ii) miscalculating the all-in
payable royalty pool, (iii) obfuscating the nature of its service to qualify for a lower statutory per
user rate, (iv) deleting the run-times of 25-45% of the recordings on its service by classifying
them as unknown, (v) physically changed the run-times of some recordings to avoid paying
extra royalties, (vi) illegally allowing six month royalty free periods to students, (vii) failing to
include revenue in certain calculations and illegally excluded revenue in others, and (viii)
deleting stream information, or failing to report stream data, to the Professional rights
Organizations (PROs) prior to payment,
5.
The laundry list of frauds, and misdeeds, perpetrated by the Defendants shocks
the conscious. Defendants altered records, misstated information, and systematically infringed
the copyrighted recordings of Plaintiffs and the Putative Class, while simultaneously engaging
in an illegal scheme to reduce its royalty obligations to almost nothing in violation of the
Copyright Act.
PARTIES
6.
At all times material hereto, Plaintiff Yesh Music, LLC (YESH) was, and is, a
limited liability company organized under the laws of the State of New York, with its principal
offices located at 75-10 197th Street, Flushing, New York. YESH is engaged in, among other
things, the business of music publishing and otherwise commercially exploiting its copyrighted
sound recordings of the band The American Dollar. The sole members of Plaintiff are Richard
Cupolo and John Emanuele, who are also the sole composers of the Copyrighted Compositions.
7.
At all times material hereto, Plaintiff John K. Emanuele (EMANUELE) was,
and is, an individual and resident of Queens. EMANUELE released two albums under the name
Zero Bedroom Apartment, which Defendant elected to make available to the public without
service of an NOI or payment of royalties.
8.
Defendant AMAZON.COM, INC., (AMAZON) is a Delaware corporation with
its principal place of business in Seattle, Washington. AMAZON owns and operates the
Amazon.com website, and equivalent international websites. AMAZON claims to have more
than two hundred and fifty million active customers, and nearly eighty million monthly
subscribers who are allowed access to Defendant AMAZON DIGITAL SERVICES, INC. Music
Service.
9.
Defendant AMAZON DIGITAL SEVICES, INC. (ADS) is a Delaware
corporation with its principal place of business in Seattle, Washington. ADS owns and operates
an interactive music streaming service, MP3 service, and music locker accessed through
Defendant AMAZONs Amazon Prime product.
JURISDICTION AND VENUE
10.
The jurisdiction of this Court is based upon 28 U.S.C. 1331 and 1338 in that
this controversy arises under the Copyright Act and Copyright Revision Act of 1976 (17 U.S.C.
101 et seq.). This action is a civil action over which this court has original jurisdiction.
11.
On information and belief, a substantial part of the facts of infringement
complained of herein occurs or has occurred in this District, and Defendant is subject to personal
jurisdiction in this District because they maintain a headquarters in this District located at 7 West
34th Street, New York, NY.
12.
Personal jurisdiction over Defendants is proper in this Court, among other
reasons, on the grounds that Defendants, through its interactive web-based subscription service,
caused the unlicensed distribution of the Copyrighted Compositions throughout the State of New
York, including within this Judicial District.
13.
The Court has personal jurisdiction over Defendants pursuant to CPLR 302
(New Yorks long-arm statute) due to their continuous and systematic business activities within
New York as described below. Defendants have conducted and do conduct business within New
York. Defendants, directly or through intermediaries (including distributors, retailers, and
others), ship, distribute, offer for sale, sell, and advertise products in the United States, and
specifically to New York. Defendants purposefully and voluntarily distributed and reproduce
Plaintiffs and the Putative Class recordings in New York.
14.
Venue in this District is proper under 28 U.S.C. 1391(b) and (c) and/or 28
U.S.C. 1400(a).
15.
Plaintiffs have the right to bring the within action pursuant to 17 U.S.C. 501(b).
16.
The copyright in every musical composition at issue was registered in the United
States Copyright Office. 17 U.S.C. 409-412.

17.
Copies of each certificate issued by the U.S. Copyright Office to Plaintiffs and
assignments registered with the U.S. Copyright Office are annexed and incorporated hereto
respectively as Exhibits A and B. Alternatively, the registrations for the groupings are attached
as Exhibit C.
18.
Each of Plaintiffs Copyrighted Compositions was registered within three months
of publication, or prior to the infringement, and satisfies the registration prerequisite under 17
U.S.C. 412(c). A list is attached as Exhibit D.
CLASS ALLEGATIONS SUB-CLASS I
19.
Plaintiffs brings this action on behalf of themselves and on behalf of all other
similarly situated owners of mechanical rights for registered musical compositions, which rights
were improperly infringed by Defendants unlicensed and/or unauthorized reproduction and/or

distribution of those compositions.
20.
SUB-CLASS I is comprised of and defined as follows:

All owners of mechanical distribution and reproduction rights in musical
compositions registered under United States federal law, which
compositions were reproduced or distributed by AMAZON without
license or authorization since March 22, 2013 and were registered within
90 days of first publication or 30 days of being uploaded, distributed and
reproduced on Amazon Music.
21.
This action may be properly brought and maintained as a class action because
there is a well-defined community of interest in the litigation and the members of the proposed
class are clearly and easily ascertainable and identifiable.
22.
The class for whose benefit this action is brought is so numerous that joinder of
all class members is impracticable. Plaintiffs are informed and believe that there are thousands
of class members and that those class members can be readily ascertained from Defendants
database files and records, and via discovery in this action.
23.
Upon information and belief, Defendants have maintained records of the musical
compositions it reproduces or distributes.

24.
The Putative Class Members can be readily located and notified of this action.
25.
The claims of Plaintiffs are typical of the claims of the members of the Putative
Class, and his interests are consistent with and not antagonistic to those of the other Putative
Class members they seek to represent.
26.
Plaintiffs hold the rights to many copyrighted musical compositions which
Defendants have reproduced and/or distributed without license and without providing
notification to Plaintiffs.
27.
Plaintiffs, and all members of the Putative Class, have sustained actual pecuniary
loss and face irreparable harm arising out of Defendants continued infringement as complained
of herein.
28.
Plaintiffs have no interests that are adverse to, or which conflict with, the interests
of the absent members of the Putative Class and is able to fairly and adequately represent and
protect the interests of such a class.
29.
Plaintiffs have raised a viable copyright infringement claim of the type reasonably
expected to be raised by members of the Putative Class, and will vigorously pursue those claims.
30.
If necessary, Plaintiffs may seek leave of the Court to amend this Second
Amended Complaint to include additional class representatives to represent the Putative Class or
additional claims as may be appropriate.
31.
Plaintiffs are represented by experienced, qualified and competent counsel who is
committed to prosecuting this action.

32.
Common questions of fact and law exist as to all members of the class that
predominate over any questions affecting only individual members of the class.
33.
These common legal and factual questions, which do not vary from class member
to class member, and which may be determined without reference to the individual
circumstances of any class member include, without limitation, the following:
(a)
(b)
(c)
(d)
(e)
(f)
34.
whether Defendants have reproduced or distributed or otherwise exploited

via the Prime Music service registered musical compositions without first
obtaining a license or other required authorization;
whether Defendants engaged in a system of materially altering documents
to obfuscate the infringements;
whether Defendants unauthorized reproduction, distribution or other
exploitation of registered musical compositions was done willfully,
thereby entitling the members of the class to increased statutory damages;
whether Defendant AMAZON infringed the rights of all copyright holders
by offering albums for free if the subscriber applies for a credit card;
the basis and method for determining and computing damages; and,
whether Defendants conduct is continuing, thereby entitling
Plaintiffs and Members of the class to injunctive or other relief.
A class action is superior to other available methods for the fair and efficient
adjudication of this controversy since individual litigation of the claims of all class members is
impracticable.
35.
The claims of the individual members of the class may range from smaller sums
to larger sums, depending upon the number of infringements. Thus, for those Putative Class
members with smaller claims, the expense and burden of individual litigation may not justify
pursuing the claims individually. Even if every member of the class could afford to pursue
individual litigation, which is highly unlikely in the independent artist community, the court
system could not.
36.
It would be unduly burdensome to the courts in which individual litigation of
numerous cases would proceed. Individualized litigation would also present the potential for
varying, contradictory, or inconsistent judgments and would magnify the delay and expense to
all parties and to the court system resulting from multiple trials of the same factual issues.
37.
On the other hand, the maintenance of this action as a class action presents few
management difficulties, conserves the resources of the parties and of the court system, and
protects the rights of each member of the class.
38.
Plaintiffs anticipate no difficulty in the management of this action as a class
action.
CLASS ALLEGATIONS SUB-CLASS II
39.
Plaintiffs bring this action on behalf of themselves and on behalf of all other
similarly situated owners of mechanical rights for registered musical compositions, which rights
were improperly infringed by Defendants systematic and unlawful reduction in the all-in royalty
pool, payable pool, and per-stream allocation.
40.
SUB-CLASS II is comprised of and defined as follows:

All owners of mechanical distribution and reproduction rights in musical
compositions registered under United States federal law, which
compositions were reproduced or distributed by Defendants since March
24, 2013 and received royalty payments for Defendants distribution and
reproduction through the Amazon Music system.
41.
This action may be properly brought and maintained as a class action because
there is a well-defined community of interest in the litigation and the members of the proposed
class are clearly and easily ascertainable and identifiable.
42.
The Putative Class for whose benefit this action is brought is so numerous that
joinder of all class members is impracticable. Plaintiffs are informed and believe that there are
thousands of class members and that those class members can be readily ascertained from
Defendants database files and records, and via discovery in this action.
43.
The members of SUB-CLASS II are so numerous that joinder of all members is
impracticable. While the exact number of Putative Class members is unknown at the present
time, it is estimated that there are thousands of members in the Putative Class.
44.
Despite the numerical size of the Putative Class, the identities of the Putative
Class members can be ascertained by mapping. Plaintiffs and their counsel do not anticipate any
difficulties in the management of this action as a class action.
45.
Plaintiffs will fairly and adequately represent the interests of the Class. Plaintiffs
are committed to vigorously prosecute this action and have retained competent counsel
experienced in class action litigation. Plaintiffs are Class members and have no interests
antagonistic to or in conflict with other Putative Class members. Plaintiffs are represented by
lawyers who have had extensive experience in prosecuting class actions and will adequately
represent the Putative Class in this action.
46.
Defendants maintained records of the musical compositions it reproduces or
distributes and the royalties paid.

47.
The Putative Class Members can be readily located and notified of this action.
48.
The claims of Plaintiffs are typical of the claims of the members of the class, and
their interests are consistent with and not antagonistic to those of the other class members they
seek to represent.
49.
Plaintiffs and the Putative Class hold the rights to many copyrighted musical
compositions which Defendants have reproduced and/or distributed without license and without
proper payment of royalties or accounting for those royalties.
50.
Plaintiffs and all members of the Putative SUB-CLASS II have sustained actual
pecuniary loss and face irreparable harm arising out of defendants systematic and unlawful
diminution of the royalty payments with accounting for those payments as described herein.
51.
Plaintiffs have no interests that are adverse to, or which conflict with, the interests
of the absent members of the Putative Class members and is able to fairly and adequately
represent and protect the interests of such a class.
52.
Plaintiffs have raised a viable claim of the type reasonably expected to be raised
by members of the class, and will vigorously pursue those claims.

53.
If necessary, Plaintiffs may seek leave of the Court to amend this Second
Amended Complaint to include additional class representatives to represent the class or

additional claims as may be appropriate.
54.
Plaintiffs are represented by experienced, qualified and competent counsel who
are committed to prosecuting this action.

55.
Common questions of fact and law exist as to all members of the class that
predominate over any questions affecting only individual members of the class.
56.
These common legal and factual questions, which do not vary from class member
to class member, and which may be determined without reference to the individual
circumstances of any class member include, without limitation, the following:
(a)
(b)
(c)
whether Defendants made accurate royalty payments for the musical

compositions it reproduced or distributed;
whether Defendants routinely violates the promotional royalty rate by
allowing free streaming well in excess of 30 days;
whether Defendants failed to make the calculations required in good faith
and on the basis of the best knowledge, information and belief of the
(d)
(e)
(f)
(g)
57.
licensee at the time payment is due, and subject to the additional

accounting and certification requirements of 17 U.S.C. 115(c)(5) and
201.19.
whether Defendants failed to provide a statement of account which shall
set forth each step of its calculations with sufficient information to allow
the copyright owner to assess the accuracy and manner in which the
licensee determined the payable royalty pool and per-play allocations;
whether Defendants failed to provide an accurate list of every stream of a
sound recording that occurred in the digital music service in that month to
these third party companies;
the basis and method for determining and computing damages;
whether Defendants conduct is continuing, thereby entitling Plaintiffs and
the Members of the Putative Class to injunctive or other relief.
A class action is superior to other available methods for the fair and efficient
adjudication of this controversy since individual litigation of the claims of all class members is
impracticable.
58.
The claims of the individual members of the class may range from smaller sums
to larger sums, depending upon the number of infringements. Thus, for those class members
with smaller claims, the expense and burden of individual litigation may not justify pursuing the
claims individually. Even if every member of the class could afford to pursue individual
litigation-which is highly unlikely in the independent artist community-the court system could
not.
59.
It would be unduly burdensome to the courts in which individual litigation of
numerous cases would proceed. Individualized litigation would also present the potential for
varying, contradictory, or inconsistent judgments and would magnify the delay and expense to
all parties and to the court system resulting from multiple trials of the same factual issues.
60.
On the other hand, the maintenance of this action as a class action presents few
management difficulties, conserves the resources of the parties and of the court system, and
protects the rights of each member of the class.
61.
Plaintiffs anticipate no difficulty in the management of this action as a class
action.
GENERAL FACTS
62.
Traditionally, the major record labels typically had staff (or full departments)
dedicated to securing mechanical licenses by negotiating directly with copyright owner of the
song (or, failing that, by utilizing the compulsory licensing provisions of Section 115). In
addition, record labels frequently outsourced the job of securing mechanical licenses to third
parties who charge a fee for this service. There are a number of third party services that license,
or secure mechanical licenses, in exchange for a fee.
Compulsory Mechanical Licenses
63.
Section 115 of the Copyright Act governs compulsory mechanical licenses of
musical compositions, such that an owner of a musical composition is required to grant a nonexclusive license to anyone who wants to reproduce and distribute recordings of a song.
64.
Although the mechanical license is compulsory, specific rules must be followed to
obtain the license under the law. The person or entity seeking a compulsory license must
provide notice, account, and pay royalties to the copyright owner.
65.
As for notice, "[a]ny person who wishes to obtain a compulsory license under
[Section 115] shall, before or within thirty days after making, and before distributing any
phonorecords of the work, serve notice of intention to do so on the copyright owner." Section 1l
5(b)[ 1]. The content and method of service of the notice are prescribed by statute and
regulation. 17 U.S.C. 115(b); 37 CFR 201.18.
66.
With respect to accounting and royalties, the person or entity who obtains a
compulsory license must make royalty payments, accompanied by a monthly statement of

account, to the copyright owner or authorized agent of the owner on or before the 21st day of
each month for every phonorecord made and distributed in accordance with the license. The
royalty rates are set by the Copyright Royalty Board.
Failure to Obtain a Mechanical License
67.
When a mechanical license is not obtained, the copyright owners of the songs and
the songwriters do not get paid for the reproduction and distribution of their music. For
songwriters, like Plaintiffs, whose songs are not played on the radio, the royalties earned from
mechanical licenses is often the only income they ever earn from their songs.
68.
Moreover, reproducing a song without a mechanical license is copyright
infringement which may not be cured after the fact by attempting to obtain a compulsory license.
Section 115 further provides that [flailure to serve or file the notice required by clause [1]
forecloses the possibility of a compulsory license and, in the absence of a negotiated license,
renders the making and distribution of phonorecords actionable as acts of infringement. .. In
other words, failure to obtain the compulsory license before recording, reproducing, or
distributing the song in sound recordings is copyright infringement.
69.
The Senate Report confirms:

Of course, a digital transmission service would be liable for any infringing
digital phonorecord delivery it made in the absence of a compulsory
license or the authorization of the musical work copyright owner.
Senate Report No. 104-128, S. Rep. 104-128 (1995) at 27 (emphasis added).
If a record company grants a license under its rights in the sound recording
only, and does not grant a mechanical license under the copyright in the
musical work embodied in the sound recording, it is the transmission
service's responsibility to obtain a license under the musical work
copyright.
Senate Report No. 104-128, S. Rep. 104-128 (1995) at 31.
DEFENDANTS AMAZON AND ADS
70.
Defendant ADS owns and operates three music services, Amazon MP3, Amazon
Cloud, and Amazon Music (also referred to as Amazon On-Demand). This is a bundle of music
products allowing the subscriber to purchase permanent digital downloads through Amazon
MP3, store music in a digital locker through Amazon Locker, and stream music as well as create
a tethered download library of temporary digital downloads through Amazon Music.
71.
Defendant AMAZON is believed to have 60-80 million subscribers to its Amazon
Prime product.
72.
Defendant ADS launched Amazon Music on or about June 21, 2014, which gave
paying Amazon Prime subscribers access to a library of songs for no additional cost and without
ads.
73.
Theres only one way to get Prime Music, and thats through an Amazon Prime
subscription, which, in the U.S., costs $99 for the entire year.
74.
The Prime Subscription gives the subscriber, among other things:

Free two-day shipping to anywhere in the contiguous U.S. Free same-day
delivery is available to 16 metro areas across the country as long as your
order meets a few criteria.
Prime Pantry: Purchase grocery, household, and pet items to anywhere in
the contiguous U.S. for a flat delivery fee of $6.
Free Cloud Storage: for video, photo, and document files up to a limit of
5 GB. A viable alternative to services like Dropbox, OneDrive, and
Google Drive.
Prime Photos: Unlimited photo storage with Amazon Cloud Drive.
Photos uploaded to the cloud will not count towards the storage limit of
your account. Stored photos may only be used for personal, noncommercial use.
Prime Video: TV and movie streaming service, like Netflix and Hulu.
Has a wide selection, plus a number of original series, which make it a
great service for cutting the cord.
Kindle First: Every month, yourenew eBooks and you can choose to
download one of them for free. This usually covers several genres so
theres always something that might interest you. Only available to
members in the U.S.
Kindle Owners Lending Library: Every month, you can borrow one
Kindle eBook for free and read it on any Kindle-compatible device. There
are no due dates for borrowed eBooks and they can be returned at any
time, but you must return them before you can borrow another.
75.
If the potential subscriber has a .edu email address, the user can save even
further with Amazon Prime Student, which comes with a six-month free trial and a 50% discount
when the trial ends.
AMAZONS DIRECT INFRINGEMENT
76.
Defendant AMAZON directly infringed the below registrations by offering the
Plaintiff YESHs latest release for free if the user applied for an AMAZON credit card.
AMAZON had no license or authority for this use. All eleven registrations, including the
registration for Mosaic, have been infringed
THE NOIs SERVED ON PLAINTIFFS AND THE

PUTATIVE CLASS ARE INVALID
77.
Pursuant to regulation Section 201.18(d)(2) of Title 37, Defendant ADS was
required to make (2) A clear statement of the information listed in paragraph (d)(1) of this
section requires a clearly intelligible, legible, and unambiguous statement in the Notice itself and
without incorporation by reference of facts or information contained in other documents or
records.
78.
As an initial matter, Defendant ADS failed to illegally add numerous tracks to
prior NOIs.
79.
All ten of the NOIs that exist on Defendant ADS agents system pertain to
locker services and do not apply to the Amazon Music Service. All ten NOIs clearly state on
their face: Digital Phonorecord Deliveries, as set forth in 17 U.S.C. Sec. 115 including, but not
limited to, interactive streams and permanent digital downloads associated with a paid locker
service and/or a purchased content locker service. (Emphasis added).
80.
Defendant AMS cannot convert the NOIs to fit whatever purpose they choose.
When the CRB created the five new products -- Limited Offerings, Mixed Service Bundles,
Music Bundles, Paid Locker Services and Purchased Content Locker Services, it required each to
comply with Section 115.
81.
paid locker.
Here, the undeniable purpose stated for the use all ten NOIs are associated with a
82.
The fact that Defendant AMS included the statement but not limited to, does
not change the legal purpose because but not limited to is not a clear an unambiguous use as
required by law.
83.
As a direct result, all ten NOIs cannot be used to secure rights for the Amazon
Music Service.
84.
Further, the NOIs were untimely with the exception of the November 2015 NOI
which was uploaded to the Music reports system, but never mailed as required by law. They are
therefore facially invalid.
85.
Defendant ADS has infringed each of Plaintiffs 118 copyright registrations, and
do so with clear intent. Intent can be inferred from Defendants actions, and includes willful
blindness and reckless disregard to Plaintiffs rights.
AMAZONS, THROUGH ITS AGENT MUSIC REPORTS, INC., MATERIALLY
ALTERED ELECTRONICALLY STORED PREVIOUSLY SERVED NOIs TO COVER
DEFENDANTS INFRINGEMENTS
86.
Eight of the subject NOIs are invalid because they were materially altered in an
attempt to deceive Plaintiff YESH into believing its recordings on Defendant AMS Music
Service were there subject to a valid license.
87.
Defendant ADS, through its agent Music Reports, illegally added all of the
unlicensed recordings to the NOIs electronically stored on Music Reports servers.

88.
Defendants scheme is borne out through a simple analysis of the NOIs which
show over 25% of the identified recordings on eight of the ten NOIs come from albums that
were released years after the NOI was served.
89.
The electronic NOIs are stored on the servers of Defendant ADS agent Music
Reports. Each month Music Reports creates a royalty calculation report for each copyright
holder that purportedly details the streaming data and identifies which previously served NOI
covers each track.
90.
Every month, before the reports are released, Music Reports, at the direction of
Defendants, makes sure every track is purportedly licensed. Instead of licensing the recordings
within 30 days in which they were made available as required by law, Music Reports waits until
the unlicensed track has been streamed at least once, and then adds that track to a previous NOI.
91.
This fraudulent scheme provides a compelling cover to mask the infringements.
A rights holder would have to go through an intensively time consuming analysis, as Plaintiffs
have done here, to comprehend the full extent of the depth of the Defendants violation of their
exclusive rights under the Act.
92.
In 2014, Plaintiff contacted Defendants agent, Music Reports, and requested the
actual physical NOIs from MusicReports. Music reports employee, Jon Johnson, was delighted
to provide the requested documents. Approximately ten minutes after Mr. Johnson agreed to
provide the originals, R. Johnson sent an email rescinding the prior-approval.
93.
Jon Johnson reversed his position after speaking to his supervisor.
94.
The email, went as follows;
Jon Johnson <jjohnson@musicreports.com> Mon, Sep 22, 2014 at 9:19 PM To:

rcupolo2@gmail.com
Cc: americandollarband@yahoo.com Hi Richard,
Unfortunately, after speaking with my supervisor, we have determined that it would be

unfeasible to provide previously issued physical notices to your email as previously stated.
However, you can still download any electronic notices provided to you via your web account.
Please let me know if you have any questions. Thank you for your time,
-Jon Johnson
Royalty Services Specialist Music Reports, Inc.
Ph: 818-558-1400 x7010
Fx: 818-558-3474
jjohnson@musicreports.com http://www.musicreports.com (Attached as Exhibit G)
95.
Defendant fabricated the NOIs in order to cover its infringements.
96.
Defendant served NOI Number 515947 dated May 31, 2012 with a purported
release date to Defendant ADS Locker Product of June 19, 2012 (the May 31, 2012 NOI).
Attached as Exhibit E.
97.
The May 31, 2012 NOI covered one track from one release, and was altered to
include:
2 tracks from The Best Of The American Dollar Volume 2 Ambient
December 20, 2012,
4 tracks from Music For Focus And Creativity December 10, 2013,
1 track from Music for Sleep, and
6 tracks from the Five Album Set released May 5, 2014.
98.
Obviously, a 2012 NOI cannot have 2014 recordings unless it was altered.
99.
The May 21, 2013 NOI bears number 551475 and claims a date of first
distribution to Defendants Locker Product of June 3, 2013. See Exhibit F. Twenty four tracks
on the May 21, 2013 NOI were on Defendants system from 2012. The remaining tracks were
released well after the NOI service date, to wit:
11 tracks from Music for Focus and Creativity released on December
10, 2013.
100.
Defendant released an NOI No. 554858 on July 9, 2013 with a purported release
date to Defendant ADSs Locker Product of July 16, 2013 (the July 9, 2013 NOI). Attached
as Exhibit H.
101.
The July 9, 2013 NOI included:
1 track from The Best Of The American Dollar Volume 2 Ambient

December 20, 2012,
3 tracks from Music For Focus And Creativity December 10, 2013,
1 track from Music For Sleep released on December 12, 2013, and
1 track from Five Album Set + Eps, released on May 5, 2014.
102.
All of these releases, of course, were after the purported date the NOI was served.
103.
The April 24, 2013 NOI bearing number 547298 appears to be the go-to NOI
for fraud (the April 24, 2013 NOI). This NOI has a release date to Defendant ADSs Locker
Product of May 6, 2013.
104.
The April 24, 2013 NOI contains the following tracks from releases made well
after the NOI date. In fact, this NOI contains 46 tracks from a release made almost a year after
its service date. Attached as Exhibit I.
22 tracks from Music for Focus and Creativity released December 10,
2014.
2 tracks from Music for sleep released December 12, 2013.
105.
Amazingly, Defendant began distributing the above tracks on May 6, 2013, well
before Plaintiff YESH recorded them.

106.
Defendant served NOI No. 569297 on October 10, 2013 with a purported release
date onto its Locker Product of October 18, 2013 (the October 10, 2013 NOI). Attached as
Exhibit J.
107.
The October 10, 2013 NOI covers three songs, each of which appeared on
numerous releases. The NOI lists one of the releases in which each of the songs appears is the
May 5, 2014 release titled Five Album Set + Bonus Eps.
108.
This release, of course, was seven months after the purported date the NOI was
109.
The October 10, 2013 NOI was also altered to included one track Plaintiff
served.
EMANUELE for the band Zero Bedroom Apartment, for the album Filmmuzik 2 which was
released to Defendant in October 2014.
110.
All of the tracks from Filmmuzik 2, however, were reproduced by Defendant ADS
and made available on its system.

111.
Defendant released an NOI No. 570843 dated October 21, 2013 with a purported
release date to Defendant ADS Locker Product of October 27, 2013 (the October 21, 2013
NOI).
112.
The October 21, 2013 NOI covered five songs, each of which was re-released 2-
3 times. (Attached as Exhibit K.) The NOI was altered to include each song on the following
releases;
3 tracks from the December 10, 2013 release titled Music For Focus
And Creativity,
3 tracks from the December 12, 2013 release titled Music For Sleep,
and
1 tracks from the May 5, 2014 release titled Five Album Set + Bonus
Eps.
113.
All of these release, of course, were after the purported date the NOI was served.
114.
NOI No. 585746 dated April 7, 2014 with a purported release date to Defendant
ADSs Locker Product of April 7, 2014 (the April 7, 2014 NOI) appears to be unaltered.
115.
The April 7, 2014 NOI covered four tracks which were re-released an average of
2.5 times in 5 groupings. The April 7, 2014 NOI has not been altered, to the best of Plaintiffs
knowledge. This was the very NOI which was the subject of Rich Cupolos conversation with
Music Reports. Defendant knew Cupolo had the physical copy of the original, and not
coincidently, is one of two unaltered NOIs.
116.
Every track, however, covered by the April 7, 2014 NOI had been used in
Defendants locker service for at least one year prior to the service date. Accordingly, the NOI is
facially invalid.
117.
Defendant released NOI No. 611933 dated January 7, 2015 with a purported
release date to Defendants Locker Product of January 7, 2015 (the January 7, 2015 NOI).
118.
The January 7, 2015 NOI covered one song which appears on two releases. The
track, Intro, was on Defendant ADSs system for two years prior to the NOI service date.
Consequently, the January 7, 2015 NOI is facially invalid.
119.
Defendant released an NOI No. 671937 dated November 2, 2015 with a purported
release date to Defendant ADSs Locker Product of November 2, 2015 (the November 2, 2015
NOI).
120.
The November 2, 2015 NOI covered one track which was released twice. The
track, Intro, was on Defendant ADSs system for two years prior to the NOI service date.
Consequently, the November 2, 2015 NOI is facially invalid.
121.
Defendant released an NOI Number 676251 dated November 16, 2015 with a
purported released to Defendant ADS Locker Product on November 16, 2015 (the November
16, 2015 NOI).
122.
The November 16, 2015 NOI covered eight tracks. Seven of those tracks are on
Plaintiffs latest release which came out on December 10, 2015, and was released to Defendant
on the same day. The other track was on Defendant ADSs system for two years and the NOI is
accordingly invalid as to that track.
123.
Defendant directed its agent, Music Reports, to change the electronically stored
NOIs to ensure future copyright royalty statements show ever track is covered by an NOI.
124.
Worse, all NOIs are invalid because they pertain to Defendants Music Locker
product, not to Prime Music. Defendant has attempted to take invalid NOIs and materially alter
them to cover all of the tracks. There is no reason for recordings from a 2014 to be on a 2012
NOI. Defendant fabricated the NOIs, and has infringed Plaintiff YESHs exclusive rights under
the Act to 116 Registrations.
125.
It is impossible to tell which tracks, other than later releases, were added to the
NOIs. Based on Defendant ADS behavior, it is safe to assume the majority of tracks.
126.
All of Plaintiff YESH music was up on ADS system by December 2012 (with
the exception of the later releases.) All of the 2013-2014 NOIs are invalid as they claim to
compel a license for those tracks.
127.
All of Plaintiff Emanueles tracks were on Defendants system with no NOI.
128.
This level of deceit warrants an award to Plaintiffs and the Putative Class at the
very top of the range.
DEFENDANTS WERE WELL AWARE OF THEIR OBLIGATIONS

129.
Defendants were well aware of their legal obligation to serve NOIs prior to
distributing Plaintiffs and the Putative Class copyrighted recordings.

130.
Defendants public statement to the CRB in 2014 stated:

Section 115 requires services to clear the underlying publishing rights for
newly released sound recordings before distributing them, but such a task
is nearly impossible in many cases...
***
***
***
the specter of statutory damages for failing to timely send NOIs under the
Section 115 licensing process exposes digital music service providers to
levels of risk that are not equitable under the circumstances.
See Exhibit L.
131.
Defendant negotiated and signed off on the CRBs 2008 Adjustment to
Mechanical Royalties. Defendant won incredible concessions in that negotiation, including the
ability to serve the US Copyright Office if the artist could not be found.
132.
Knowing its legal obligations, and also knowing its agent was not sending out a
large portion, perhaps all, of the NOIs (discussed below); Defendants elected to break the law
rather than comply.
133.
This type of behavior, predatory in nature, can only be addressed by an award at
the highest point of the statutory scale.

134.
Defendants also knew their agent MusicReports cannot, and certainly does not,
serve NOIs for every recording on Defendant ADS Music Service.

135.
Music Reports admitted that fact to the Copyright Royalty board. In an official
statement to the CRB dated May 23, 2014, MusicReports stated:

Regarding the licensing coverage of the Section 115 license: it is true, as
critics have pointed out, that it is not possible to license all of the tens of
millions of musical works in the typical digital music service catalog using
the Section 115 statutory license. See Exhibit L.
136.
Defendants knew exactly what was going on, but made a tactical business
decision. This is not the first time a class-action against AMAZON has been brought to remedy
the same behavior. See Blagman v. Apple, Inc. et al, No. 1:2012cv05453 (S.D.N.Y. 2012). This
is a clear indication of intent on the part of Defendants.
ADS MIS-CALCULATED THE ALL-IN ROYALTY POOL

137.
Defendant was legally obligated to provide:

a detailed and step-by-step accounting of the calculation of royalties
under 385.12, 385.22, or other provisions of part 385 of this title as
applicable, sufficient to allow the copyright owner to assess the manner in
which the licensee determined the royalty owed and the accuracy of the
royalty calculations, including but not limited to the following
information:
(i) The number of plays, constructive plays, or other payable
units, of the relevant sound recording for the month covered by the
Monthly Statement for the relevant offering.
(ii)
The total royalty payable for the month for the item
described by the set of information called for, and broken down as
required, by paragraph (c)(3) of this section (i.e., the per-work royalty
allocation for the relevant sound recording and offering).
(iii)
The phonorecord identification information required
by paragraph (c)(3) of this section.
138.
Defendant ADS violated the Act and supporting regulations each month Plaintiffs
and the Putative Class received a royalty calculation report from Defendants agent
MusicReports.
139.
The MusicReports royalty calculation report consists of three aspects, the first
was recently a bogus certification from a purportedly independent small accounting firm Baker
Tilly Virchow Krause LLP.
140.
The Baker Tilly certification is, however, just a rouse. Amazon is responsible for
all assertions, Baker Tilly just checks their internal controls.

141.
It must be noted that Baker Tilly prepared the repots for Amazon ADS, but relied
on all of the assertions from ADS parent company.
142.
The Baker Tilly certification makes it appear as if the royalty reports are valid and
certified is an independent auditor. Again, Baker Tilly only certifies the calculation.
143.
The first page is now just an affirmation by Steve Bloom. See Exhibit M.
144.
The second page consists of the royalty pool and per stream calculation page. See
Exhibit N.
145.
The final page is the detail report which highlights the fraud perpetuated by the
Defendant each and every month. See Exhibit O.

146.
Defendant ADS has failed to provide information sufficient to determine if the
all-in royalty pool calculation is accurate, and this is impermissible under the Statute and
enacting regulations.
147.
Defendant ADS is subject to the Music Bundle for purposes of the calculation
for the all-in royalty pool which is the greater of (i) 11.35% of the revenue (Defendant ADS,
however, claims no revenue.)
148.
Defendant can also calculate the pool as 21% of the service payments to record
companies if licenses are not pass through, or 17.36% of the service payments to record
companies if songs are pass through.
149.
The all-in royalty pool minus the payments paid for performance royalties equals
the payable royalty pool. The payable royalty pool divided by the total streams equals the perstream allocation rate.
150.
The per-stream allocation rate is how most artists survive. To allow Defendants
to artificially deflate their per-stream allocation is worse than theft.
151.
If every company followed the Defendants in its bogus calculations, many, most
of the entertainers, who rely on this revenue would no longer be able to make music.
152.
Examining a typical example of the calculation, it is readily apparent Defendant
ADS has woefully failed to provide the statutorily required information sufficient to establish its
calculation of the all-in royalty pool.
153.
Examining a typical example of the calculation, it is readily apparent Defendant
ADS has woefully failed to provide the statutorily required information sufficient to establish its
calculation of the all-in royalty pool.
A
Service Revenue
154.
B Service Revenue subject to Promotional
Royalty Rate
C Service Revenue subject to All-In
Royalty Calculation
D Number of Subscribers
E Label Payments, where label pays
publishing
F Label Payments, where service pays
publishing Performance Royalties
G Performance Royalties
H Applicable Service Revenue Rate
I
All-In Royalty, by Revenue Calculation
J Applicable Per Subscriber Rate
K All-In Royalty, by Subscriber
Calculation
L Applicable Label Rate, where label
pays publishing
M Applicable Label Rate, where service
pays publishing
N All-In Royalty, by Label Payment
Calculation
O Applicable Service Type Minimum
Lesser of K or N
P All-In Royalty
$0.00
N/A
A-B
$0.00
4,435,288
$0.00
$4,664,503.00
C*H
D*J
$405,629.25
10.50%
$0.00
N/A
N/A
17.36%
21.00%
(E * L) + (F * M)
$979,545.63
$979,545.63
Greater of I or O
$979,545.63
Payable Pool, by All-In Royalty, less

Performance Royalties
R
S
Subscriber Based Royalty Floor Rate

Payable Pool, by Subscriber Based
Royalty Floor
T Payable Royalty Pool
U Total Number of Plays, All Musical
Works
V Number of Plays subject to
Promotional Royalty Rate
W Number of Plays subject to effective
Per Play Rate
X Promotional Royalty Rate
155.
P-G
$573,916.38
D*R
25.00%
$1,108,822.00
Greater of Q or S
$1,108,822.00
961,241,639.6
0.0
U-V
961,241,639.6
$0.00
It is simply impossible for any individual receiving a royalty calculation report
from Defendant to ascertain whether Defendant ADS calculations are correct. Every calculation
Defendant made is predicated on the amount it pays for the sound recording royalties (Line F on
the chart).
156.
Defendant ADS offers no information about how it arrived at this number, and no
way to verify if it is correct.

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

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

65,000,0001 X 10
12
168.
54,166,666
11.35%
$6,147,916
The payable royalty pool is the all-in royalty pool minus the performance
royalties: $6,147,916 - $405,629.25 = $5,742,286.75

169.
The per-stream allocation is calculated equals .006.
170.
Defendant AMAZON reduced its lawful payable royalty pool from $5,742,286.75
to $1,108,822.00.
171.
Plaintiff purportedly had 14,357 streams and was paid royalties of $28.12.
(Plaintiff YESH likely had far more, but the 14,357 is what Defendant ADS reported).
172.
At the correct royalty rate, Plaintiff YESHs 14,357 streams equals $91.82.
173.
This is the typical practice of Defendants toward Plaintiffs and the Putative
Class. Plaintiffs and the Putative Class are owed tens of millions of dollars in royalties stolen
by Defendants.
Amazon may have as many as 80 million subscribers, see http://www.geekwire.com/2015/amazon-may-have-upto-80-million-high-spending-prime-members-worldwide/. Consumer Intelligence Research Partners, LLC (CIRP)
regularly analyzes buyer shopping patterns on the site to make its own well-educated guess as to how many there
are. "This analysis indicates that Amazon Prime now has 54 million U.S. members, spending on average about
$1,100 per year, compared to about $600 per year for non-members," the research company said in a press
release that looked at Q4 of 2015. This new estimate compares to an estimated 40 million U.S. members at the
end of 2015, or an increase of 35%, according to previous CIRP figures. The
http://www.geekwire.com/2015/amazon-adds-3m-new-prime-members-in-one-week-in-december/.
AMAZON MIS-REPORTED STREAM DATA

174.
Defendant ADS goes to amazing lengths to avoid paying royalties.
175.
Defendant ADS made Plaintiff YESHs new single Mosaic and album Across
the Oceans available for streaming on November 10, 2015 and December 10, 2015 respectively.
176.
In the four months since the release of the single and ten other tracks they have
cumulatively been streamed over 1,000,000 times on other digital platforms.

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

178.
An impossibility because Plaintiffs counsel has streamed the eleven recordings
multiple times on Prime Music.

179.
A comparison of the information supplied by Defendant ADS to the two PROs
yields a dramatic difference in what ADS reports.

Date
July 2015
Sound Record Streams

(TuneCore)
13,383
Publishing Streams
(MusicReport)
6,371
August 2015
19,302
14,305
September 2015
19,296
15,736.2
October 2015
27,159
22,128
November 2015
10,693.60
December 2015
7,995
January 2016
2,714.60
180.
Compare Exhibit O which is the streams for January from MusicReports and
Exhibit P which is a screen shot from TuneCore.

181.
showing no sound record royalties have been paid.
182.
The disparity in the numbers is from the systematic manipulation of track
information by MusicReports to eliminate those tracks related to recordings which no NOI was
served.
183.
For example, in August 2015, TuneCore reported 7 entries for the song Age of
Wonder totaling 349 streams. Music Reports reported 156.6 streams.

184.
MusicReports is Defendant ADSs agent for NOI service. In addition to adding
new tracks, to old NOIs, MusicReports simply deleted the data from tracks not covered by an
NOI. It also attempted, at times, to add the stream information from an uncovered song to one
that was.
185.
Staying with August 2016, TuneCore reported 61 additional songs that were
streamed that MusicReports did not report. This means either Amazon directly, or Music
Reports on its behalf, deleted the stream data from 25% of the streams.
186.
In a transparent attempt to limit its liability, Defendant ADS, removed Plaintiffs
tracks from its library (with the exception of the latest group) at the apex of success for Plaintiff
YESHs tracks. The removal of the tracks coincides with the wave of publicity over Plaintiffs
case against Tidal. A guilty conscience is a terrible thing.
AMAZON REMOVED RUN-TIME INORMATION
187.
The run-time is the length of time it takes to play a given recording.
188.
Run times must be submitted with the recordings to AMAZON.
189.
Every sound recording on Prime Music shows the run-time.
190.
Mysteriously, Defendant classifies the run times for over 30% of the recordings
on Defendant ADS system as unknown.

191.
Taking last month (January 2016) as an example, attached as Exhibit O, the first
of many glaring errors is the bogus unknown playing time appears in 58 of the 263 entries.
192.
Defendant simply ignores the information its own system in order to reduce the
royalties paid to Plaintiffs and the Putative Class.

193.
The run-time is important because, by statute, streaming rates increase for all
recordings over 5:00 minutes as follows:

d) Overtime adjustment. For purposes of the calculations in step 4 in
paragraph (b)(4) of this section only, for sound recordings of musical
works with a playing time of over 5 minutes, adjust the number of plays as
follows:
5:01 to 6:00 minutesEach play = 1.2 plays
194.
Plaintiff has eighteen recordings over 5:01 seconds (qualifying each one of those
eighteen tracks to the bonuses above).

195.
It is readily apparent that Defendant systematically deletes, alters, and marks as
unknown a large percentage of Plaintiffs recordings over 5:01 minutes.
196.
Defendant is well-aware that every recording on its Music System shows the run-
197.
Plaintiffs and the Putative Class have been damaged by Defendant ADS
time.
manipulation of the run-time data in an amount to be proved at trial.

Defendant Impermissibly Allows Six Months Free Trial for Students
198.
Defendant AMAZON offers six months of free service to anyone with a .edu
199.
After the six months, the service is half of the normal price.
200.
This is a per se violation of 37 CFR 385.14(b) (3) which provides:
email.
The free trial period does not exceed 30 consecutive days per subscriber
per two-year period.
201.
Plaintiffs and the Putative Class have been damaged by this in an amount to be
proven at trial.
FIRST CLAIM FOR RELIEF
COPYRIGHT INFRINGEMENT
202.
Plaintiffs and the Putative Class incorporate the allegations contained in the
preceding paragraphs as if set forth at length here.

203.
Defendants have, without a mechanical license under Section 115 from
Plaintiffs or the Putative Class, reproduced and publicly performed and/or publicly distributed
Plaintiffs Copyrighted Compositions through its interactive web-based subscription streaming
service.
204.
It cannot be disputed that the Plaintiffs and the Putative Class have valid,
registered copyrights, and that Defendants have reproduced and offered the Copyrighted
Compositions for streaming, including permanent and temporary digital download, without a
license, thus infringing Plaintiffs and the Putative Class rights under Section 115 of the
Copyright Act. Irreparable injury is presumed here as Plaintiffs and the Putative Class have
established a prima facie case of copyright infringement.
205.
Even after Defendants were put on notice in a previous action in this Court just
three years ago, Defendant elected to continue to reproduce and publicly perform and/or publicly
distribute Plaintiffs Copyrighted Compositions through its subscription service.
206.
The making or the distribution, or both, of all Copyrighted Compositions without
the payment of royalties is actionable as acts of infringement under section 501 and fully subject
to the remedies provided by sections 502 through 506 and 509.
207.
Each time the Plaintiffs and Putative Class were deprived of their statutory royalty
entitlement, e.g., by non-payment of royalties, a distinct harm was done to Plaintiffs and the
Putative Class property interest.
208.
Defendants predatory conduct was clearly intentional within the meaning of
504(c)(2) for purposes of enhancing statutory damages. Defendants knew that their actions
constituted an infringement each time it failed to serve an NOI or make a royalty payment.
209.
Defendants knowledge may also be inferred from its conduct including the
reckless disregard of the Plaintiffs and Putative Class rights (rather than actual knowledge of
infringement), which suffices to warrant award of the enhanced damages.
210.
Every time Defendants materially altered documents to cover their illegal activity,
they demonstrated the clear knowledge of the import of their acts.

211.
As a direct and proximate result of each of the Defendants infringement,
Plaintiffs and the Putative Class have incurred damages, as described more fully above. Pursuant
to 37 C.F.R. 385, Plaintiffs and the Putative Class are entitled to a per stream statutory
royalty rate of $.01 for interactive web-based streaming services like Defendant.
212.
Plaintiffs and the Putative Class may also elect to recover statutory damages
pursuant to 17 U.S.C. 504(c)(2) for willful infringement of up to $150,000, but not less than
$30,000, for each infringement of each copyright registration identified in Exhibit A and those
that will be produced for the Putative Class, as available under the law.
SECOND CLAIM FOR RELIEF
213.
Plaintiffs incorporate the allegations contained in the preceding paragraphs as if
set forth at length here.

214.
Alternatively, while Plaintiff YESH does not release traditional albums, in the
event this Honorable Court finds it does, Defendants have intentionally infringed the Copyright
Registrations identified in Exhibit B for the collections of compositions registered to Plaintiffs.
215.
Defendant has, without a mechanical license under Section 115 from Plaintiffs,
reproduced and publicly performed and/or publicly distributed Plaintiffs Copyrighted

Compositions through its interactive web-based subscription streaming service.
216.
It cannot be disputed that the Plaintiffs have valid, registered copyrights, and that
Defendant has reproduced and offered the Copyrighted Compositions for streaming, including
permanent and temporary digital download, without a license, thus infringing Plaintiffs rights
under Section 115 of the Copyright Act. Irreparable injury is presumed here as Plaintiffs have
217.
Plaintiffs may also elect to recover statutory damages pursuant to 17 U.S.C.
504(c)(2) for willful infringement of up to $150,000, but not less than $30,000, for each
infringement of each copyright registration identified in Exhibit B, as available under the law.
SECOND CLAIM FOR RELIEF

218.
Plaintiffs incorporate the allegations contained in the preceding paragraphs as if
set forth at length here.

219.
Alternatively, while Plaintiff YESH does not release traditional albums, in the
event this Honorable Court finds it does, Defendants have intentionally infringed the Copyright
Registrations identified in Exhibit B for the collections of compositions registered to Plaintiffs.
220.
Defendant has, without a mechanical license under Section 115 from Plaintiffs,
reproduced and publicly performed and/or publicly distributed Plaintiffs Copyrighted

Compositions through its interactive web-based subscription streaming service.
221.
It cannot be disputed that the Plaintiffs have valid, registered copyrights, and that
Defendant has reproduced and offered the Copyrighted Compositions for streaming, including
permanent and temporary digital download, without a license, thus infringing Plaintiffs rights
under Section 115 of the Copyright Act. Irreparable injury is presumed here as Plaintiffs have
222.
Plaintiffs may also elect to recover statutory damages pursuant to 17 U.S.C.
504(c)(2) for willful infringement of up to $150,000, but not less than $30,000, for each
infringement of each copyright registration identified in Exhibit B, as available under the law.
THIRD CLAIM FOR RELIEF

(CONTRIBUTORY AND VICAROUS INFRINGEMENT AGAINST
DEFENDANTS)
223.
Plaintiffs and the Putative Class reallege and incorporate by reference each and
every allegation contained in the preceding paragraphs with the same force and effect as if fully
set for that length herein.
224.
Defendant AMAZON had knowledge of the infringing activity, and induced,
caused or materially contributed to the infringing conduct of Defendant ADS.

225.
Defendant ADS had knowledge of the infringing activity, and induced, caused or
materially contributed to the infringing conduct of MusicReports.

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

227.
Defendant ADS has the right and ability to supervise the infringing activity and
also has a direct financial interest in the activity.

228.
Plaintiffs and the Class Members have been damaged, and Defendants have been
unjustly enriched, in an amount that is not as yet fully ascertained but which Plaintiffs are
informed and believe is not less than $150,000 according to proof at trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and on behalf of all other
persons similarly situated, respectfully prays for relief against Defendant as follows:
1.
Certify this matter as a class action;
2.
Enter an order appointing Plaintiffs as class representative and Plaintiffs counsel
as class counsel;
3.
Enter judgment in favor of Plaintiffs and the Class;
4.
Enter injunctive and/or declaratory relief as is necessary to protect the

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

AMAZON and ADS, and their respective agents, servants, directors, officers,
principals, employees, representatives, subsidiaries and affiliates, companies,
successors, assigns, and those acting in concert with them or at their direction,
from further violations of New Yorks General Business Law 349;
6.
Injunctive relief that requires AMAZON and ADS to pay for the services of a
third party auditor to identify the owners of all works reproduced and/or
distributed by Defendants despite Defendants failure to first obtain a mechanical
license prior to reproducing and/or distributing the Works, and further requiring
Defendant ADS to remove all such unlicensed tracks from its services until it
obtains proper licenses for them;
7.
Restitution of Defendants unlawful proceeds, including Defendants gross
profits;
8.
Award compensatory damages to Plaintiffs and the Putative Class in an amount to

be ascertained at trial;
9.
Award statutory damages to Plaintiffs and the Putative Class according to proof,
including but not limited to all penalties authorized by the Copyright Act (17
U.S.C. 504(c)(1), 504(c)(2));
10.
Award reasonable attorneys fees and costs (17 U.S.C. 505);
11.
Award Plaintiffs and the putative Class pre- and post-judgment interest to the
extent allowable; and,
12.
Award such other and further relief that the Court may deem just and
proper.
JURY DEMAND
Plaintiffs hereby demand a trial by jury of all issues so triable.
Dated: March 22, 2015
GARBARINI FITZGERALD P.C.

By: __________________________
Richard M. Garbarini (RG 5496)
250 Park Avenue
7th Floor
New York, New York 10177
Telephone: (212) 300-5358
Facsimile: (347) 218-9479

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Case 1:16-cv-01406-BMC Document 1 Filed 03/22/16 Page 1 of 42 PageID #: 1

Richard M. Garbarini (RG 5496)

Index No.: 16-cv-1406

AMAZON.COM, INC., and AMAZON DIGITAL

Case 1:16-cv-01406-BMC Document 1 Filed 03/22/16 Page 2 of 42 PageID #: 2

NATURE OF THE ACTION

Defendants have engaged in a systematic process of infringing the copyrighted

Defendants also artificially deflated their royalty payment obligations to almost

Case 1:16-cv-01406-BMC Document 1 Filed 03/22/16 Page 3 of 42 PageID #: 3

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

Defendant AMAZON.COM, INC., (AMAZON) is a Delaware corporation with

Case 1:16-cv-01406-BMC Document 1 Filed 03/22/16 Page 4 of 42 PageID #: 4

Defendant AMAZON DIGITAL SEVICES, INC. (ADS) is a Delaware

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

Personal jurisdiction over Defendants is proper in this Court, among other

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

Each of Plaintiffs Copyrighted Compositions was registered within three months

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were improperly infringed by Defendants unlicensed and/or unauthorized reproduction and/or

SUB-CLASS I is comprised of and defined as follows:

compositions it reproduces or distributes.

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Plaintiffs hold the rights to many copyrighted musical compositions which

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

committed to prosecuting this action.

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whether Defendants have reproduced or distributed or otherwise exploited

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

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

SUB-CLASS II is comprised of and defined as follows:

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The members of SUB-CLASS II are so numerous that joinder of all members is

Defendants maintained records of the musical compositions it reproduces or

distributes and the royalties paid.

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

Amended Complaint to include additional class representatives to represent the class or

Plaintiffs are represented by experienced, qualified and competent counsel who

are committed to prosecuting this action.

whether Defendants made accurate royalty payments for the musical

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licensee at the time payment is due, and subject to the additional

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

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

Section 115 of the Copyright Act governs compulsory mechanical licenses of

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

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

Moreover, reproducing a song without a mechanical license is copyright

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The Senate Report confirms:

Defendant AMAZON is believed to have 60-80 million subscribers to its Amazon

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The Prime Subscription gives the subscriber, among other things:

Defendant AMAZON directly infringed the below registrations by offering the

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THE NOIs SERVED ON PLAINTIFFS AND THE

Pursuant to regulation Section 201.18(d)(2) of Title 37, Defendant ADS was

As an initial matter, Defendant ADS failed to illegally add numerous tracks to

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