IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ROBERT GAUDIO d/b/a SEASONS FOUR
MUSIC, ALL SEASONS MUSIC, NEW
SEASONS MUSIC, GAVADIMA MUSIC,
SEASONS MUSIC; THE FOUR SEASONS
PARTNERSHIP,
Plaintiffs,

Case No. 3:17-cv-01052

v.

District Judge Jon Phipps McCalla

SPOTIFY USA INC.,

Magistrate Judge Joe Brown
Defendant.

DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR
A MORE DEFINITE STATEMENT
In support of its Motion for a More Definite Statement, Defendant Spotify USA Inc.
(“Spotify”) states:
INTRODUCTION
Spotify files this Motion For a More Definite Statement pursuant to Federal Rule of Civil
Procedure 12(e). “A more definite statement will be required when ‘defendants can only guess as
to what conduct . . . an allegation refers.’” Paragon Fin. Grp., Inc. v. Bradley Factor, Inc., No.
1:02-CV-222, 2003 WL 23471548, at *13 (E.D. Tenn. Dec. 4, 2003) (citations omitted). That is
the case here. Plaintiffs’ Complaint unleashes a barrage of words colorfully – and falsely –
portraying Spotify as a firm whose “business practices are reminiscent of the primitive illegal file
sharing companies.” Compl. at ¶ 68. Put plain, Plaintiffs mean to brand Spotify as a new
Napster. But that label does not fit. Spotify is a lawful, licensed streaming service, and the

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 Complaint leaves Spotify guessing with respect to how, and through what conduct, Spotify is
alleged to have violated copyright law.
Plaintiffs allege that Spotify “reproduce[s]” and “distribute[s]” Plaintiffs’ works, see
Compl. at ¶ 69, thereby facilely checking the boxes to plead an infringement of the reproduction
and distribution rights. But Plaintiffs leave Spotify guessing as to what activity Plaintiffs actually
believe entails “reproduction” or “distribution.” The only activity of Spotify’s that Plaintiffs
identify as infringing is its “streaming” of sound recordings embodying Plaintiffs’ copyrighted
musical compositions. Compl. at ¶¶ 4, 13-14, 16, 21-23, 32, 38, 53-56, 59-60, 63, 67, 69, 71-72.
But “streaming” – by its very definition – cannot infringe upon either the reproduction right
under 17 U.S.C. § 106(1) or the distribution right under 17 U.S.C. § 106(3). As a consequence,
Plaintiffs’ allegations simply do not inform Spotify how Spotify is alleged to have violated the
law.
The Supreme Court recently noted that “[i]f a pleading fails to specify the allegations in a
manner that provides sufficient notice,” then a Rule 12(e) motion may be appropriate.
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002). A Rule 12(e) motion is particularly
appropriate here, where Plaintiffs’ dishonest portrayal of Spotify’s (licensed) streaming service
as willful infringement on a “staggering scale,” and their failure to specify the conduct that is
alleged to infringe, is no accident. Compl. at ¶ 6. It is, rather, a bid to interfere with the courtapproved settlement in Ferrick. See id. at ¶ 45. It appears that, by falsely painting Spotify as a
new Napster and by holding out the prospect of hundreds of millions of dollars in statutory
damages, Plaintiffs and their counsel hope to entice additional class members to opt out. Id. at
¶ 76.

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 “In deciding whether to grant a Rule 12(e) motion, the trial judge is given considerable
discretion.” Paragon, 2003 WL 23471548, at *13 (quoting Newcourt Leasing Corp. v. Reg’l
Bio-Clinical Lab, Inc., 2000 WL 134700, *1 (E.D. La. 2000)). The Court should exercise that
discretion here and oblige Plaintiffs to identify the conduct, either of Spotify or of Spotify’s
users, that Plaintiffs allege infringes upon Plaintiffs’ exclusive rights. Indeed, Plaintiffs’
Complaint fails to meet even the liberal pleading requirements of Federal Rule of Civil
Procedure 8, because that rule requires “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Here, without identifying how Spotify has allegedly violated
copyright laws, Plaintiffs have failed to show that they are entitled to relief. See House v. Rexam
Beverage Can Co., 630 F. App’x 461, 462 (6th Cir. 2015) (“Federal Rule of Civil Procedure
8(a)(2) provides that a complaint must contain ‘a short and plain statement of the claim showing
that the pleader is entitled to relief.’ ‘A complaint that allows the court to infer only a ‘mere
possibility of misconduct,’ however, ‘is insufficient to ‘show’ that the complainant is entitled to
relief and fails to meet the pleading requirements of Rule 8.’”) (citing Han v. Univ. of Dayton,
541 Fed. App’x. 622, 626 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (1937))).
LAW AND ARGUMENT
A.

Plaintiffs Present A False Narrative In An Attempt To Portray Spotify As A New
Napster
According to Plaintiffs’ Complaint, Spotify is a new Napster. “Spotify’s business

practices,” Plaintiffs declare, “are reminiscent of the primitive illegal file sharing companies.”
Compl. at ¶ 68. And Spotify, Plaintiffs declare, “rules the streaming market through a pattern of
willful infringement on a staggering scale.” Id. at ¶ 6. Plaintiffs further assert that “Spotify’s
illegal behavior and its willful and deliberate disregard of United States Copyright law is clearly
demonstrated” and that Spotify has “continued to exploit compositions, including the Infringed

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 Works, without a license to do so and therefore engaged in continuous actionable acts of
copyright infringement.” Id. at ¶¶ 48, 65. Plaintiffs’ counsel has said much the same to the
public. See, e.g., Janko Roettgers, Spotify Faces Two New Lawsuits From Music Publishers,
VARIETY (July 18, 2017, 4:09 PM), https://goo.gl/iAk4FZ (claiming that “companies should not
be allowed to build businesses on the concept of infringe now and ask questions later.”) (copy of
pertinent portion of webpage attached hereto as Exhibit 1).
Plaintiffs’ narrative is simple and engaging. It is also false. Spotify is a legitimate,
licensed streaming company. Established in 2006 and officially launched in the United States in
July 2011, Compl. at ¶ 27, Spotify currently does business in 61 countries, see
https://www.spotify.com/us/select-your-country/, and has over 30,000,000 licensed sound
recordings available to stream. Active users streamed 20 billion hours of music in 2015 alone.
See

Marc

Schneider, Spotify’s

Year

in

Music, BILLBOARD (December

1,

2015),

https://goo.gl/v4hnS1 (copy of pertinent portion of webpage attached hereto as Exhibit 2).
Spotify now has more than 140 million global monthly active users, including 50 million paying
subscribers. Compl. at ¶ 22. It has paid over $6 billion in royalties to copyright owners. And it
has licensing deals with hundreds of copyright owners, including global licensing partnerships
with the major record labels Sony Music Entertainment, Universal Music Group, and Warner
Music Group.
Plaintiffs falsely portray Spotify as an outlaw or pirate preying upon the music industry.
Quite the contrary: Spotify is a recognized player within that industry. Spotify bears no
resemblance to Napster, and it is likewise wholly unlike any other “primitive illegal file sharing
company” (i.e., Napster, Scour, Aimster, Audiogalaxy, Morpheus, Grokster, Kazaa, iMesh, and

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 LimeWire). Id. at ¶¶ 24, 68. Its business practices bear no resemblance to those piratical and
unlawful peer-to-peer networks. Nor does its technology.
In fact, far from committing piracy, Spotify is a major force in driving music sales and
keeping piracy under control. See Ben Sisario, Streaming Drives U.S. Music Sales Up 11% in
2016, N.Y. TIMES (Mar. 30, 2017), https://goo.gl/aCZyWo (copy of pertinent portion of webpage
attached hereto as Exhibit 3). Indeed, Spotify’s founders explicitly designed Spotify to function
as an anti-piracy tool. By offering access to a very large licensed library of content, available for
streaming on demand, Spotify makes music available at a price and in a format that people like.
The millions of people who get their music legitimately via Spotify have no incentive to pirate it.
From its beginning, Spotify was “meant to make paying for music an easier option than piracy.”
Through Spotify, Daniel Ek has changed the music industry forever, EUROPEAN CEO (Aug. 1,
2017), https://goo.gl/3wW3t5 (copy of pertinent portion of webpage attached hereto as Exhibit
4).
Plaintiffs lay out their false story for a practical reason. They want to entice more
publishers to opt out of the Ferrick settlement. More opt-outs equal a larger number of
copyrighted works that Plaintiffs can join to their lawsuits, which means, principally, a larger
potential payday for Plaintiffs’ counsel. Plaintiffs’ Complaint asks for “the maximum amount of
statutory damages for willful copyright infringement, $150,000.00 per composition, for each of
the musical compositions identified in Exhibit A hereto.” Compl. at ¶ 76. Those sort of damages
are imaginable only if Spotify is portrayed as a present-day Napster.
Plaintiffs’ copyright infringement allegations are purposefully vague, in a way that allows
them to be consistent with the false narrative Plaintiffs lay out in their Complaint and that is
intended to attempt to avoid dismissal under Rule 12(b)(6) by simply reciting the magic words

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 “reproduce” and “distribute.” Using such words, however, is insufficient because it does not set
forth a cogent theory of infringement. Plaintiffs allege that Spotify infringes Plaintiffs’ exclusive
right to reproduce and distribute copies of the underlying compositions. See, e.g., ¶ 72 (“each
stream of the Infringed Works reproduced by Spotify and/or distributed to end-users constitute a
separate and distinct act of infringement”); see also ¶¶ 4, 14, 16, 32, 55, 59-60, 63, 67, 69, 71.
But Plaintiffs’ logical leap from a “stream” to an alleged reproduction or distribution is
not adequate to put Spotify on notice of what Plaintiffs are complaining about. Streaming music
does not implicate either the reproduction right under 17 U.S.C. § 106(1) or the distribution right
under § 106(3) and thus certainly cannot infringe those rights. In fact, courts have acknowledged
a key distinction between streaming and downloading — like the downloading facilitated by the
“illegal file sharing companies” that Plaintiffs reference in their Complaint. Compl. at ¶ 68.
Indeed, streaming is an “alternative to copies or phonorecords.” 3 Paul Goldstein, Goldstein on
Copyright §7.6.1.2 (2017) (copy of pertinent portion attached hereto as Exhibit 5). If a service
enables users to download a song, then that service engages in the “reproduction and distribution
of a sound recording” and of the musical composition that sound recording embodies. Flo &
Eddie Inc. v. Sirius XM Radio Inc., No. CV 13-5693 (PSG) (RZX), 2014 WL 4725382, at *7
(C.D. Cal. Sept. 22, 2014). But if the service streams a song, then the stream is an “isolated
public performance of a sound recording,” and of the musical composition that sound recording
embodies. Id.; see also Deacon v. Pandora Media, Inc., 901 F. Supp. 2d 1166, 1175 (N.D. Cal.
2012) (holding that “the right to publicly perform or stream a copyrighted sound recording is
different from copyright holder’s right to distribute copies of the copyrighted work to the
public,” and noting that Pandora streaming service “operates solely under public performance
licenses.”) (emphasis in original); Hearst Stations Inc. v. Aereo, Inc., 977 F. Supp. 2d 32, 40 (D.

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 Mass. 2013) (defendant’s technology for streaming programming “more aptly described as
‘performing’ than ‘distributing’ copyrighted works.”) (citing 3 William F. Patry, Patry on
Copyright § 8:23 (2013) (“The distinction between a performance and a distribution should be
drawn by reference to the type of transmission involved: if the transmission delivers a copy of a
work to a consumer in non-real time, it is a distribution. If streaming or other real-time conduct
is involved, it is a performance.”)); United States v. Am. Soc’y of Composers, Authors &
Publishers, 485 F. Supp. 2d 438, 444 (S.D.N.Y. 2007) (finding that digital downloads implicated
reproduction rights and not public performance rights); 2 M. Nimmer & D. Nimmer, Nimmer on
Copyright § 8.14[B][3] (2017) (“The act of streaming constitutes a public performance; the act
of downloading, by contrast, does not.”) (copy of pertinent portion attached hereto as Exhibit 6).
In short, the act of streaming does not reproduce copies of sound recordings or musical
compositions, and equally does not distribute copies of either sound recordings or compositions.
This is not to say that streaming has no copyright consequence. Streaming does result in a public
performance of both sound recordings and musical compositions. See 17 U.S.C. § 106(4)
(granting copyright owner the exclusive right to “perform the copyrighted work publicly” in the
case of musical works) and § 106(6) (granting copyright owner the exclusive right to “perform
the copyrighted work publicly” in the case of sound recordings); see also Deacon, 901 F. Supp.
2d at 1175; Hearst Stations, 977 F. Supp. 2d at 40; Patry, supra, § 8:23. But Plaintiffs do not
allege that Spotify has violated their public performance rights, and such an allegation would be
futile. Spotify has paid hundreds of millions of dollars to license the public performances of the
musical compositions it streams, including those allegedly owned by Plaintiffs, through
negotiated licenses administered via ASCAP, BMI, SESAC, and GMR – a group of licensing
agents known collectively as “performance rights organizations” or “PROs.” In sum, Plaintiffs’

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 Complaint, which rests upon Spotify’s “streaming,” leaves Spotify guessing about what it has
done that, in Plaintiffs’ view, constitutes a violation of Plaintiffs’ reproduction and distribution
rights.
If Plaintiffs are indeed alleging an instance of copying (as opposed to streaming) that
allegedly violates Plaintiffs’ reproduction and/or distribution rights, they can amend their
Complaint to say so. Depending on what that allegation is, Spotify will advance a number of
defenses. If Plaintiffs’ real complaint is with, for example, a particular instance of alleged
temporary copying, then, among other things, Spotify may assert a defense of fair use. Spotify
may also assert defenses of compulsory license, implied license, negotiated license with
copyright owner or co-owner, statute of limitations, and others, depending on the nature of the
specific allegations. But Spotify should not be forced to guess and aim its defenses at an
unknown claim. Spotify believes that every element of its service is either fully licensed or
otherwise permitted by law, and Plaintiffs’ Complaint offers no notice as to what Spotify
conduct it thinks violates its copyrights or what conduct would require additional licenses.
By granting this Motion and requiring Plaintiffs to identify the conduct they claim
infringes, this Court will provide Spotify with a fair chance to evaluate the strength of Plaintiffs’
claims. In Spotify’s view, an order by this Court requiring Plaintiffs to identify specific
infringing conduct is likely to result in a revised complaint that tells a very different story. A
complaint that pleads with the required specificity would no longer be a narrative about how
Spotify’s streaming service is a new Napster. It would be a narrative inconsistent with the false
claim that Spotify engages in willful, “staggering” levels of “piracy.” It would be a narrative
vulnerable to a set of powerful defenses. And it would be a narrative that makes clear that even if

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 Plaintiffs ultimately establish some measure of liability, their efforts will not result in anything
resembling the enormous statutory damages that Plaintiffs’ lawyers demand.
That last point is important. Plaintiffs are dangling before the Ferrick class members the
prospect of hundreds of millions of dollars in statutory damages against their purported “new
Napster.” It requires a measure of sophistication and a comprehension of the intricacies of
copyright law to understand that Plaintiffs’ story simply doesn’t add up. Plaintiffs owe Spotify,
and this Court, an honest account of what Spotify is alleged to have done that, in Plaintiffs’ view,
infringes Plaintiffs’ rights. Once Plaintiffs provide those specific allegations, Spotify will
respond appropriately. In the absence of those specific allegations, Spotify simply cannot
respond.
CONCLUSION
For the reasons set forth above, Spotify respectfully requests that this Court require
Plaintiffs to file a more definite statement sufficient to put Spotify on notice of Spotify’s conduct
that allegedly infringes upon Plaintiffs’ rights under the Copyright Act.

Respectfully submitted,
BAKER, DONELSON, BEARMAN, CALDWELL
& BERKOWITZ, P.C.
/s/ Samuel F. Miller
Samuel. F. Miller (TN BPR #22936)
Baker Donelson Center
211 Commerce Street, Suite 800
Nashville, TN 37201
Telephone: (615) 726-5594
Facsimile: (615) 744-5594
Email: smiller@bakerdonelson.com

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 SIMPSON THACHER & BARTLETT LLP
Jeffrey E. Ostrow (CA BPR #213118, Admitted Pro
Hac Vice)
2475 Hanover Street
Palo Alto, California 94304
Telephone: (650) 251-5030
Facsimile: (212) 455-2502
Email: jostrow@stblaw.com
Christopher J. Sprigman (NY BPR #CS7310,
Admitted Pro Hac Vice)
425 Lexington Avenue
New York, New York 10017
Telephone: (212) 455-7844
Facsimile: (212) 455-2502
Email: christopher.sprigman@stblaw.com
Counsel for Defendant Spotify USA Inc.

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 CERTIFICATE OF SERVICE
I hereby certify that on August 30, 2017, a copy of the foregoing DEFENDANT’S
MEMORANDUM IN SUPPORT OF MOTION FOR A MORE DEFINITE STATEMENT was
filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing
system to all parties indicated on the electronic filing receipt. All other parties will be served by
regular U.S. mail. Parties may access this filing through the Court’s electronic filing system.
Richard S. Busch
King & Ballow
315 Union Street, Suite 1100
Nashville, Tennessee 37201
rbusch@kingballow.com
John E. Mason, Jr.
Law Office of John Mason, LLC
40 Music Square West
Nashville, Tennessee 37203

/s/ Samuel F. Miller
Samuel. F. Miller

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