Digital Sound Complaint

COMPLAINT

Leslie S. Johnson, OSB #954727Email: [email protected] H. Kent, OSB #852530Email: [email protected] & JOHNSON, LLP1500 SW TAYLOR STREETPORTLAND, OREGON 97205TELEPHONE: (503) 220-0717FACSIMILE: (503) 220-4299

William Grantham (pro hac vice motion forthcoming)Email: [email protected], ACLAND & GRANTHAM, LLP232 N CANON DRIVEBEVERLY HILLS, CA 90210TELEPHONE: (310) 274-3803FACSIMILE: (310) 860-2430

Attorneys for Plaintiffs Digital Sound Co. and Stars for Art Production FZ LLC

UNITED STATES DISTRICT COURTDISTRICT OF OREGON

Portland Division

DIGITAL SOUND CO., an Egyptian company;and STARS FOR ART PRODUCTION FZLLC, a Dubai limited liability company,

Plaintiff,

vs.

AUDIO AND VIDEO LABS, INC., a NewJersey corporation doing business as CDBABY; MARTIN BERZ GROUP, a legalperson, form unknown; and DOES 1-10,inclusive,

Defendant.

No.

COMPLAINT(Copyright Infringement)

JURY TRIAL REQUESTED

Plaintiffs Digital Sound Co. (“Digital”) and Stars For Art Production FZ LLC

(“Stars”, and together with Digital, the “Plaintiffs”), allege as follows:

Case 3:14-cv-00598-PK Document 1 Filed 04/10/14 of 8 Page ID#: 1

COMPLAINT

JURISDICTION AND VENUE

1. This is a civil action seeking damages and injunctive relief for copyright

infringement under the Copyright Act of the United States, 17 U.S.C. § 101, et seq.

2. This Court has jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1338(a).

3. This course has personal jurisdiction over all of the Defendants because,

among other things, Defendants are doing business in the State of Oregon and in this

judicial district, the acts of infringement complained of herein occurred in the State of

Oregon and in this judicial district, and Defendants have caused injury to Plaintiffs and

their intellectual property within the State of Oregon and in this judicial district.

4. In addition, and as more fully set forth below, Defendant Martin Berz

Group has submitted in writing to the jurisdiction of the federal courts of the United

States of America.

5. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and (c),

and/or § 1400(a).

THE PARTIES

6. Plaintiff Stars is a limited liability company organized in Dubai, United

Arab Emirates. It is a wholly-owned subsidiary of the Mazzika Group (“Mazzika”), the

largest music production and distribution company in the Arab world. It has the right to

distribute music catalogues and libraries of substantial works by major stars dating from

the 1950s to the present day. Stars is a legal and/or beneficial owner of copyright interests

in the musical recordings that are the subject of this complaint.

7. Plaintiff Digital is a joint stock company organized according to the laws

of Arab Republic of Egypt. It is a wholly-owned subsidiary of Mazzika. It is responsible,

among other things, for providing Mazzika-controlled musical recordings to digital

platforms for streaming or download by consumers. At all times relevant herein, Digital

was authorized to act for Stars with respect to digital exploitation of Stars’ musical


COMPLAINT

catalogues and libraries, and is a copyright owner and claimant in and to the musical

recordings that are the subject of this complaint.

8. On information and belief, Defendant Audio and Visual Labs Inc.

(“CD Baby”) is a corporation organized according to the laws of New Jersey and

registered to do business in Oregon, including under the assumed business name

CD Baby, with an address at 13909 NE Airport Way, Portland, Oregon 97230. CD Baby

represents itself as a seller and distributor of musical recordings on behalf of the owners

of such recordings.

9. On information and belief, Defendant Martin Berz Group (“Berz”) is a

legal person, form unknown, with a business address at Rue Du Parc, 16035 Hydra,

Algiers in the People’s Democratic Republic of Algeria.

10. The true names and capacities, whether individual, corporate,

associate or otherwise, of the defendants sued herein as Does 1 through 10, are

unknown to the Plaintiffs, who therefore sue said defendants by such fictitious names

(the “Doe Defendants”). The Plaintiffs will seek leave of this Court to amend this

complains to state the true names and capacities of the Doe Defendants when they have

been ascertained. The Plaintiffs are informed and believe and on that basis allege that the

Doe Defendants are liable to the Plaintiffs as a result of their participation in all or some

of the act set forth hereinafter. CD Baby, Berz and the Doe Defendants are referred to

collectively herein as the “Defendants”).

11. The Plaintiffs are informed and believe and on that basis allege that at all

times mentioned in this complaint, each of the Defendants was the agent and/or alter ego

of each of the other Defendants and, in doing the things alleged in this complaint, was

acting within the course and scope of such agency.


COMPLAINT

GENERAL ALLEGATIONS

12. Plaintiffs control the worldwide distribution rights in following musical

recordings, all by the Egyptian musical star Tamer Hosny (sometimes transliterated as

Hosni) (the “Recordings”):

a. Haeesh Hayati, an album of 15 tracks;

b. Ekhtart Sah (sometimes transliterated as Ikhtart Sah), an album of

14 tracks;

c. Elly Gai Ahla, an album of 14 tracks; and

d. Mazzika Mix 3, an album of 9 tracks.

13. Digital or Stars have obtained United States Copyright Office

registrations, or applied for such registrations, with respect to the Recordings as follows:

a. Haeesh Hayati, effective as of October 10, 2013, registration

number SR 736-637. A true and correct copy of this registration is attached hereto as

Exhibit A.

b. Ekhtart Sah, effective as of November 11, 2013, registration

number SR 736-622. A true and correct copy of this registration is attached hereto as

Exhibit B.

c. Elly Gai Ahla, on November 11, 2013, application number

1-1019594093. A true and correct copy of this application is attached hereto as Exhibit C.

d. Mazzika Mix 3, on April 8, 2014, application number

1-1344247921. A true and correct copy of this application is attached hereto as Exhibit D.

14. In or around March 2014, Plaintiffs became aware that the Defendant

CD Baby was illicitly offering nineteen (19) Recordings for paid download at its

website www.cdbaby.com. In addition, Plaintiffs became aware that CD Baby was


COMPLAINT

providing such Recordings to the iTunes service operated by Apple, Inc. so that such

Recordings were available for paid download by iTunes customers. A complete list of the

Recordings offered and uploaded by CD Baby is attached hereto as Exhibit E

(the “Infringing Recordings”).

15. The Infringing Recordings were represented by the Defendants as being

parts of two albums entitled Tamer Hosny Hits and Beautiful Tamer, with the intention

that these would appear to be bona fide and authorized Tamer Hosny albums. In fact,

these albums were unauthorized compilations of Mr. Hosny’s recordings that had never

been released in the manner presented by the Defendants.

16. On March 19, 2014, Plaintiffs served CD Baby with a written notification

of claimed infringement (the “Takedown Notice”), as provided by the 1998 Online

Copyright Infringement Liability Limitation Act, Pub. L. No. 105-304, 112 Stat. 2680,

2877 (the “Act”), incorporated into the United States Copyright Act of 1976 at 17 U.S.C.

§ 512. The Takedown Notice requested CD Baby to remove the Infringing Recordings

from the sites where it had placed them. A true copy of the Takedown Notice is attached

hereto as Exhibit F.

17. On information and belief, in response to the Takedown Notice, CD Baby

removed the Infringing Recordings from parts – though not all – of its own website, but

not from the iTunes service.

18. On March 27, 2014, CD Baby provided Plaintiffs with an alleged

written “counter notification” dated March 26, 2014 from Defendant Berz

(the “Counter Notification”) pursuant to the Act, in which Berz, under penalty of perjury,

asserted the right under copyright law to exploit the Infringing Recordings and

(a) submitted to the jurisdiction of the federal courts of the United States of America and

(b) agreed to accept service from Plaintiffs by registered mail. A true and correct copy of

the Counter Notification provided by CD Baby to Plaintiffs is attached hereto as

Exhibit G.


COMPLAINT

19. Despite the sworn assertions of the Counter Notification, Berz has no

distribution rights of any kind in the Infringing Recordings. Distributing the Infringing

Recordings to CD Baby was in violation of Plaintiffs’ exclusive rights therein under

copyright law.

20. On March 27, 2014, CD Baby notified Plaintiffs in writing that, based on

the Counter Notification, CD Baby intended to restore the Infringing Recordings by

April 11, 2014. However, CD Baby continued to offer at least ten (10) of the Infringing

Recordings for sale on its website, as evidenced by the listings downloaded on April 8,

2014, and attached hereto as Exhibit G. By continuing to offer Infringing Recordings for

sale, CD Baby has lost the “safe harbor” offered by the Act and is accordingly liable for

copyright infringement.

21. In addition, by making the Infringing Recordings available through

iTunes, CD Baby did not function as “service provider” within the meaning of the Act.1

Instead, it functioned as an active distributor of copyrighted material to iTunes and is

thereby subject to liability for copyright infringement with respect to any unauthorized

distribution.

1 17 U.S.C. § 512(k): “(1) SERVICE PROVIDER. – (A) as used in subsection (a), theterm “service provider” means an entity offering the transmission, routing, or providingof connections for digital online communications, between or among points specified bya user, of material of the user’s choosing, without modification to the content of thematerial as sent or received.

(B) As used in this section, other than subsection (a), the term “service provider”means a provider of online services or network access, or the operator of online servicesor network access, or the operator of facilities therefor, and includes an entity describedin subparagraph (A).”


COMPLAINT

FIRST CAUSE OF ACTION

COPYRIGHT INFRINGEMENT

(17 U.S.C. §§ 106 AND 501)

22. The Plaintiffs incorporate herein by this reference all of the allegations of

paragraphs 1 through 21, inclusive.

23. Through their conduct alleged herein, the Defendants have infringed the

Plaintiffs’ copyright in the Infringed Recordings in violations of Sections 106 and 501 of

the United States Copyright Act of 1976, 17 U.S.C. §§ 106 and 501.

24. The Defendants’ acts of infringement are willful, intentional and

purposeful, in disregard of and with indifference to Plaintiff’s rights.

25. On information and belief, the Plaintiffs allege that, as a direct and

proximate result of their wrongful conduct, the Defendants have realized and continue to

realize profits and other benefits rightfully belonging to the Plaintiffs. Accordingly, the

Plaintiffs seek an award of damages, costs and fees under 17 U.S.C. §§ 504 and 505.

26. The Defendants’ infringing conduct has also caused and is causing

substantial and irreparable damage and injury to the Plaintiffs in an amount not capable

of determination, and, unless restrained, will cause further irreparable injury, leaving the

Plaintiffs with no adequate remedy at law.

REQUEST FOR A JURY TRIAL

The Plaintiffs hereby request a trial by jury.

PRAYER FOR RELIEF

THEREFORE, the Plaintiffs pray for judgment against the Defendants, jointly

and severally, as follows:

1. For damages in such amounts as may be found, or as otherwise permitted

by law.


COMPLAINT

2. For an accounting of, and the imposition of constructive trust with respect

to, the Defendants’ profits attributable to their infringements of the Plaintiffs’ copyright

in the Infringed Recordings.

3. For a preliminary and permanent injunction prohibiting the Defendants

and their respective agents, servants, employees, officers, successors, licensees and

assigns, and all persons acting in concert or participation with each or any of them, from

continuing to infringe the Plaintiff’s copyright in the Infringed Compositions.

4. For prejudgment interest according to law.

5. For the Plaintiffs’ attorneys’ fees, costs and disbursements in this action.

6. For such other and further relief at the Court may deem just and proper.

DATED this 10th day of April, 2014.

KENT & JOHNSON, LLP

/s/ Leslie S. JohnsonChristopher H. Kent, OSB#[email protected] S. Johnson, OSB#[email protected] SW Taylor StreetPortland, OR 97205(503) 220-0717 (Telephone)(503) 220-4299 (Fax)

William Grantham (pro hac vice motion forthcoming)[email protected], ACLAND & GRANTHAM, LLP232 N Canon DriveBeverly Hills, CA 90210(310) 274-3803 (Telephone)(310) 860-2430 (Fax)

Attorneys for Plaintiffs Digital Sound Co. andStars for Art Production FZ LLC

79390


Digital Sound Complaint

Documents

Transcript of Digital Sound Complaint