In Copyright Dispute, Federal Magistrate Judge Permits Discovery in France and the U.K. of Non-U.S. Uploading of Allegedly Unlicensed Recordings to U.S. Online Music Libraries and of Importation into the U.S. of Allegedly Infringing Recordings

The World in U.S. Courts: Spring 2014 - Intellectual Property (Copyright) | March.31.2014

Blagman v. Apple, Inc., U.S. District Court for the Southern District of New York, March 31, 2014

A composer and performer brought a class action lawsuit in U.S. District Court in New York against Apple, Google, and other "Retailer Defendants" representing 80% of the U.S. digital music market, and "Aggregator Defendants" that made digital music files available to the Retailer Defendants, for copyright infringement. The claims were based upon the alleged copying of Blagman’s material by foreign record labels and aggregators, outside of the U.S., which then supplied the digital files to the Retailer Defendants in the U.S. for purchase by consumers worldwide. The opinion by a U.S. magistrate judge ruled on Blagman’s request that the court issue letters rogatory to allow the taking of depositions in France and the United Kingdom. At issue was the relevance of the requests to the Blagman’s claims.

As pertinent here, the court first considered whether discovery concerning the uploading of songs by the Aggregator Defendants outside of the U.S. to the Retailer Defendants’ U.S. websites should not proceed because it would only address an impermissible extraterritorial application of the copyright laws, and therefore be irrelevant. Finding that the "locus of the allegedly infringing action" –including the copying that was done by the retailer defendants in order to make the music available and the distribution of that material worldwide—to be in the U.S., the court concluded that the claim was not extraterritorial in nature. Next, the court considered the relevance of discovery relating to the importation of allegedly infringing works into the U.S. Although such importation can violate the Copyright Act, the court noted that Blagman had not pleaded that conduct as a basis for his claims. Nevertheless, the court considered the issue potentially relevant to the Retailer Defendants’ affirmative defense that they were licensed to distribute the works in question, and so permitted the discovery to proceed.

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