Classic rock streaming case reaches the Second Circuit

Sometimes rock and roll winds up in the courts, as even rock and roll is a business and someone owns the music and will sue if they think someone else is using the music without permission. This case arose when someone got ahold of a gold mine of concert recordings from the classic rock era and made it available on the Internet. One thing led to another, and the archives that were broadcasting the music online got sued. The music publishers won the lawsuit, but the case is not over.

The case is ABKCO Music, Inc. v. Sagan, issued on October 6. ABKCO and the other music publishers said there was no valid license to make the music available online, through websites like Wolfgang's Vault, which specializes in classic rock memorabilia and was streaming this music for the world. That music included stuff by the Grateful Dead, The Who, The Rolling Stones, and others. Without a valid license to stream this music, you have a copyright violation. The case went to trial and the jury awarded the publishers $189,500 in damages, a "minimal" amount, plus $2.4 million in attorneys' fees. The plaintiffs sought $30 million in damages.

On appeal, the Court of Appeals (Jacobs, Wesley and Menashi) splits the baby and upholds some of the district court's rulings and vacates a few others, sending the case back to the district court for additional work. It's all very complicated, but the Court says that some of the materials are not covered under the Copyright Act because they were audiovisual recordings and not "phonorecords." As for the audio-only recordings, they are protected under the Copyright Act. The case returns to the district court for fact-finding on other issues.

Meanwhile, part of this case went to trial before Judge Ramos, which produced the jury verdict. The publishers want a new trial, claiming the district court made bad evidentiary rulings and other errors. The evidentiary challenges fail on appeal, as the trial court has broad discretion to resolve those issues at trial. The most interesting trial issue is the claim that the jury rushed its verdict because the COVID-19 pandemic was upon us in early March 2020 and the jury got nervous they were going to be infected. The trial court told the lawyers to hurry up and finish because "the world is falling apart around us," and that the National Guard might be surrounding them before we know it. The jury sent a worrisome note about the pandemic and said they did not want to die or lose any family members over a damages trial. The trial court ruled these jury concerns did not justify excluding the jury from deliberations, and counsel did not object. 

The publishers think the jury may have rushed its verdict, wrapping things up in less than an hour without reviewing any exhibits. While it awarded minimal damages, it did find that some of the copyright violations were willful, so the jury was able to pick apart the case in its limited deliberations period. The appellate court says no new trial is warranted because the trial judge told the jury it could deliberate as long as it wanted, distinguishing this case from a 1980 Fifth Circuit case were the jury returned a verdict in 45 minutes after the trial court told them to render a verdict in 15 minutes, as a hurricane was about to make landfall. Also, the jury who wrote that note said he and the other jurors wanted to render a fair verdict.