Professional Documents
Culture Documents
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CLASS ACTION
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v.
SLACKER, INC.,
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Plaintiff,
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Defendant.
COMPLAINT FOR:
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
Plaintiff Zenbu Magazines LLC (Zenbu), on behalf of itself, all others similarly
situated, and the general public, by and through its undersigned counsel, hereby brings this
action against defendant Slacker, Inc. (Slacker), and alleges the following upon its own
knowledge, or where it lacks personal knowledge, upon information and belief including the
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INTRODUCTION
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Slacker operates and offers to the general public a streaming music service called
Slacker Radio, which is available through an Internet browser, as well as through applications
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2.
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performances that initially were fixed (that is, in a tangible medium, i.e., recorded) prior to
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February 15, 1972, for which Slacker has not obtained the recordings owners authorization
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to perform, and for which Slacker does not and has not paid the recordings owners royalties
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3.
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transmitting and performing them via Slacker Radio to its millions of users on a daily basis,
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without any authorization. Slacker profits from its unauthorized reproduction, distribution,
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and public performance of pre-1972 recordings by charging subscription fees to its users, and
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by selling advertisements, without paying royalties or licensing fees for pre-1972 recordings.
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4.
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recordings, Slacker is liable under California law for violation of Cal. Civ. Code 980(a)(2),
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violation of Cal. Bus. & Prof. Code 17200, et seq., misappropriation, and conversion.
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Zenbu owns all right, title and interest in and to a library of pre-1972 sound
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recordings, several of which Slacker has reproduced, distributed, and performed without
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paying Zenbu any royalties or licensing fees. Zenbu brings this action on behalf of itself and
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reproduced, distributed, and performed by Slacker without paying royalties or licensing fees.
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1
Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
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THE PARTIES
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business at 16935 West Bernardo Drive, Suite 270, San Diego, California 92127.
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Plaintiff Zenbu Magazines LLC is a New York limited liability company with
1332(d)(2)(A), the Class Action Fairness Act, because the matter in controversy exceeds the
sum or value of $5,000,000 exclusive of interest and costs and at least one member of the
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class of plaintiffs is a citizen of a State different from defendant. In addition, more than two-
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thirds of the members of the class reside in states other than the state in which defendant is a
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citizen and in which this case is filed, and therefore any exceptions to jurisdiction under 28
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The Court has personal jurisdiction over defendant pursuant to Cal. Code Civ.
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the State, and because defendant has purposely availed itself of the benefits and privileges of
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1391(b) and (c), because defendant resides (i.e., is subject to personal jurisdiction) in this
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district, and a substantial part of the events or omissions giving rise to the claims occurred in
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this district.
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FACTS
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public throughout the United States. Slacker delivers and streams music through its website
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
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and on a subscription basis for $3.99 per month, with added features and no advertisements
(which Slacker calls the Radio Plus plan), or for $9.99 per month, with even more features
and no advertisements (which Slacker calls the Premium plan). As of 2011, Slacker Radio
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Among the sound recordings that Slacker publicly performs, reproduces, and
distributes on an ongoing and regular basis are pre-1972 recordings, including recordings
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Artist
Date of Recording
Sin City
1969
Hot Tuna
Hot Tuna
Candy Man
Hot Tuna
Hot Tuna
Hesitation Blues
Hot Tuna
Been So Long
Hot Tuna
Oh Lord, Search My
Heart
Hot Tuna
Hot Tuna
Hot Tuna
True Religion
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Song(s)
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Album
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
Artist
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Album
Date of Recording
Hot Tuna
Hot Tuna
July 3, 1971
Hot Tuna
Candy Man
July 3, 1971
Hot Tuna
July 3, 1971
Hot Tuna
July 3, 1971
Hot Tuna
Johns Other
July 3, 1971
Hot Tuna
Rock Me Baby
July 3, 1971
Hot Tuna
July 3, 1971
Hot Tuna
July 3, 1971
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Song(s)
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In order to stream music recordings to the public, Slacker has reproduced and
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copied, and continues to reproduce and copy, pre-1972 recordings, including to one or more
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servers and storage devices, and uses technology or systems that result in a copy of pre-1972
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Slacker is aware that it does not have any license, right, or authority to reproduce,
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perform, distribute, or otherwise exploit via Slacker Radio any pre-1972 recordings,
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
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musical performances that initially were fixed (i.e., recorded) prior to February 15, 1972,
which sound recordings were reproduced, performed, distributed, and/or otherwise exploited
by Slacker via Slacker Radio, and for which Slacker was not authorized or licensed to
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individual joinder of all members is impracticable, and the disposition of the claims of all
class members in a single action will provide substantial benefits to the parties and Court.
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the putative class and subclass, which do not vary from member to member, and which may
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limitation:
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a.
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b.
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c.
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d.
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e.
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
17200, et seq.;
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misappropriation;
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conversion;
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i.
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j.
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k.
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l.
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Typicality Zenbus claims are typical of the claims of members of the class in
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that they are based on the same underlying facts, events, and circumstances relating to
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Slackers conduct. Zenbus interests are consistent with, and not antagonistic to, those of the
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Adequacy Zenbu will fairly and adequately represent and protect the interests
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of the class, has no interests incompatible with the interests of the class, and has retained
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counsel competent and experienced in class action and music copyright litigation.
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controversy because individual litigation of the claims of all class members is impracticable.
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The claims of the individual members of the class may range from small sums to larger sums.
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For those class members with smaller claims, the expense and burden of individual litigation
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may not justify pursuing the claims individually. Moreover, even if every class member could
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
afford to pursue individual litigation, that would greatly tax the court system, as well as
present potential for varying, inconsistent, or contradictory judgments, and magnify the delay
and expense to all parties and the court system resulting from multiple trials of the same
factual issues.
CAUSES OF ACTION
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Pursuant to Cal. Civ. Code 980(a)(2), Zenbu and members of the putative class
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possess exclusive ownership interests in and to pre-1972 recordings, including the artistic
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exploitation via Slacker Radio of pre-1972 sound recordings (including the Zenbu Pre-1972
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Recordings), Slacker has infringed Zenbus and the class members exclusive ownership
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interests in and to the pre-1972 recordings, in violation of Cal. Civ. Code 980(a)(2).
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980(a)(2), Slacker has received and retained money and value that rightfully belong to
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980(a)(2), Zenbu and members of the class have been damaged in an amount that is not yet
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
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Unfair
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Slackers conduct as alleged herein was unfair because its conduct was immoral,
unethical, unscrupulous, or substantially injurious and the utility of its conduct, if any, did
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Slackers conduct as alleged herein was also unfair because it violates public
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Unlawful
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Slackers conduct as alleged herein was unlawful within the meaning of the
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MISAPPROPRIATION
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Pursuant to Cal. Civ. Code 980(a)(2) and California common law, Zenbu and
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members of the class possess exclusive ownership interests in and to the pre-1972 recordings,
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substantial time and money developing the pre-1972 recordings reproduced, performed,
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Because Slacker does not obtain licenses to pre-1972 recordings, it does not
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incur any of the costs that a licensee is otherwise obligated to pay in order to reproduce,
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commercial benefit, the exclusive ownership interests in and to the pre-1972 recordings, by
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
recordings.
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has received and retained money and value that rightfully belongs to Zenbu and members of
the class.
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980(a)(2), Zenbu and members of the class have been damaged in an amount that is not yet
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undertaken in conscious disregard of the rights of Zenbu and each member of the class.
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Accordingly, Zenbu and each member of the class is entitled to an award of punitive damages
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discourage Slacker and others from engaging in the same behavior in the future.
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CONVERSION
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Pursuant to Cal. Civ. Code 980(a)(2) and California common law, Zenbu and
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members of the class possess exclusive ownership interests in and to the pre-1972 recordings,
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Radio pre-1972 recordings, Slacker has converted for its own use the property rights of Zenbu
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and each member of the class, in the pre-1972 recordings, and has dispossessed Zenbu and
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As a direct and proximate result of its conversion, Slacker has received and
retained money and value that rightfully belongs to Zenbu and members of the class.
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
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980(a)(2), Zenbu and members of the class have been damaged in an amount that is not yet
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undertaken in conscious disregard of the rights of Zenbu and each member of the class.
Accordingly, Zenbu and each member of the class is entitled to an award of punitive damages
discourage Slacker and others from engaging in the same behavior in the future.
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Wherefore, Zenbu, on behalf of itself, all others similarly situated, and the
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general public, prays for judgment against Slacker as to each and every cause of action,
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including:
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a.
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Zenbu and its counsel to represent the class, and requiring Slacker to bear
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b.
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c.
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
d.
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restore all funds acquired by means of any act or practice declared by the
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g.
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h.
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j.
An Order providing for all other such equitable relief as may be just and
proper.
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT
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JURY DEMAND
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Zenbu Magazines LLC v. Slacker, Inc.
CLASS ACTION COMPLAINT