SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

UMG RECORDINGS, INC.,

Plaintiff,

-against-

ESCAPE MEDIA GROUP, INC.,

Defendant.



Index No. 100152/2010
IAS Part 39
Justice Saliann Scarpulla







MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT


FILED: NEW YORK COUNTY CLERK 09/23/2014 08:08 PM
INDEX NO. 100152/2010
NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/23/2014



TABLE OF CONTENTS
INTRODUCTION..........................................................................................................................1
FACTUAL AND PROCEDURAL BACKGROUND .................................................................4
I. UMGs Exclusive Rights in Its Catolog of Pre-1972 Recordings ........................................4
II. Escapes Infringing Grooveshark Service .............................................................................4
A. Escapes Business Model ...................................................................................................4
B. Escapes Unauthorized Use of UMGs Pre-1972 Recordings ........................................6
C. Escapes Streaming of UMGs Pre-1972 Recordings .....................................................7
D. Escapes Ongoing Copyright Infringement and Its Pretextual Counterclaims
Against UMG ......................................................................................................................7
III. Procedural History .............................................................................................................8
ARGUMENT ................................................................................................................................10
I. Applicable Standards for Summary Judgment Under N.Y. C.P.L.R. 3212 ..................10
II. New Yorks Long History of Protection of Pre-1972 Recordings Under Common Law 10
III. UMG Is Entitled to Summary Judgment on Its Common Law Copyright Infringement
Claims......................................................................................................................................12
A. Applicable Standards for Common Law Copyright Infringement .............................12
B. UMGs Ownership of the Pre-1972 Recordings ............................................................12
C. Escapes Infringement of UMGs Common Law Rights ..............................................12
1. Escapes Infringing Distribution of UMGs Pre-1972 Recordings ........................14
2. Escapes Infringing Reproduction of UMGs Pre-1972 Recordings .....................15
3. Escapes Infringing Public Performance of UMGs Pre-1972 Recordings ..........16
IV. UMG Is Entitled to Summary Judgment on Its Unfair Competition Claims ..................18
V. UMG Is Entitled to Summary Judgment on Escapes Counterclaims .............................21
A. UMGs Conduct Is Protected by the Noerr-Pennington Doctrine ...............................21
B. UMG Has a Legal Justification for Its Actions .............................................................23
C. Escape Cannot Meet the Standard for Tortious Interference Because UMG
Acted Without Malice ......................................................................................................24
CONCLUSION ............................................................................................................................25

- ii -

TABLE OF AUTHORITIES
Page(s)
CASES
Alvarez v. Prospect Hosp.,
68 N.Y.2d 320 (1986) ..............................................................................................................10
Am. Broad. Cos., Inc. v. Aereo, Inc.,
134 S.Ct. 2498 (2014) ..............................................................................................................18
Apple Corps. Ltd. v. Adirondack Grp.,
124 Misc.2d 351 (N.Y. Sup. Ct. N.Y. County 1983) ..............................................................20
Arista Records LLC v. Greubel,
453 F. Supp. 2d 961 (N.D. Tex. 2006) ....................................................................................15
Arista Records LLC v. Lime Wire LLC,
06 Civ. 05936 (KMW), 2010 WL 10031251 (S.D.N.Y. Aug. 9, 2010) ..................................13
Arista Records LLC v. Myxer Inc.,
CV 08- Civ. 03935 (GAF)(JCX), 2011 WL 11660773 (C.D. Cal. Apr. 1, 2011) ...................13
Arista Records, LLC v. Usenet.com, Inc.,
633 F. Supp. 2d 124 (S.D.N.Y. 2009) ......................................................................................15
Arista Records v. MP3Board, Inc.,
00 Civ. 4660 (SHS), 2002 U.S. Dist. Lexis 16165 (S.D.N.Y. Aug. 29, 2002) ........................24
Barqs Inc. v. Barqs Beverages, Inc.,
677 F. Supp. 449 (E.D. La. 1987) ............................................................................................22
BE & K Constr. Co. v. NLRB,
536 U.S. 516 (2002) .................................................................................................................22
Capitol Records, Inc. v. MP3tunes, LLC,
821 F. Supp. 2d 627 (S.D.N.Y. 2011) ......................................................................................19
Capitol Records, Inc. v. Naxos of Am., Inc.
372 F.3d 471 (2d Cir. 2004).....................................................................................................10
Capitol Records, Inc. v. Naxos of Am., Inc.
4 N.Y.3d 540 (2005) ........................................................................................................ passim
Capitol Records, Inc. v. Wings Digital Corp.,
218 F. Supp. 2d 280 (E.D.N.Y. 2002) .....................................................................................20
Capitol Records, LLC, d/b/a EMI North Am. v. Escape Media Grp.,
12-CV-06646 (AJN)(SN) (S.D.N.Y. May 28, 2014) ....................................................... passim

- iii -
Capitol Records, LLC v. BlueBeat, Inc.,
765 F. Supp. 2d 1198 (C.D. Cal. 2010) .............................................................................17, 18
Capitol Records, LLC v. Harrison Greenwich, LLC,
4 Misc.3d 202 (N.Y. Sup. Ct. Comm. Div. 2014) .................................................12, 15, 16, 17
Capitol Records, LLC v. Harrison Greenwich, LLC,
Index No. 652249/2012 (Dkt. No. 86) .....................................................................................17
Capitol Records, LLC v. ReDigi, Inc.,
934 F. Supp. 2d 648 (S.D.N.Y. 2013) ....................................................................15, 16, 17, 18
Collins v. E-Magine, LLC,
291 A.D.2d 350 (1st Dept 2002) ............................................................................................24
EMI Records Ltd. v. Premise Media Corp.,
Index No. 601209/08, 2008 N.Y. Misc Lexis 7485 (N.Y. Sup. Ct. Aug. 8, 2008) .................15
Firma Melodiya v. ZYX Music GmbH,
882 F. Supp. 1306 (S.D.N.Y. 1995) .........................................................................................14
Flo & Eddie, Inc. v. Sirius XM Radio, Inc.,
CV 13-5693 PSG (RZx) (C.D. Cal. Sept. 22, 2014) ..........................................................20, 21
Fonotipia Ltd. v. Bradley,
171 F. 951 (E.D.N.Y. 1909).....................................................................................................10
Foster v. Churchill,
87 N.Y.2d 744 (1996) ..............................................................................................................24
Friends of Rockland Shelter Animals, Inc. v. Mullen,
313 F. Supp. 2d 339 (S.D.N.Y. 2004) ......................................................................................22
Goldstein v. California,
412 U.S. 546 (1973) .................................................................................................................10
Jasper v. Bovina Music, Inc.,
314 F.3d 42 (2d Cir. 2002).......................................................................................................12
Lama Holding Co. v. Smith Barney Inc.,
88 N.Y.2d 413 (1996) ..............................................................................................................21
LondonSire Records, Inc. v. Doe 1,
542 F. Supp. 2d 153 (D. Mass. 2008) ......................................................................................15
Lum v. New Century Mortg. Corp.,
19 A.D.3d 558 (2d Dept 2005) ...............................................................................................24
Madden v. Creative Servs.,
84 N.Y.2d 738 (1995) ..............................................................................................................12

- iv -
McHale v. Anthony,
70 A.D.3d 463 (1st Dept 2010) ..............................................................................................21
Melea Ltd. v. Quality Models Ltd.,
345 F. Supp. 2d 743 (E.D. Mich. 2004) ...................................................................................22
Metropolitan Opera Assn v. Wagner Nichols Recorder Corp.
199 Misc. 786 (N.Y. Sup. Ct. N.Y. County 1950) .......................................................... passim
New Stadium LLC, v. Greenpoint-Goldman Corp.,
Index. No. 600493/2005, 2010 N.Y. Misc. Lexis 1724 (N.Y. Sup. Comm. Div. Sept.
16, 2014) ..................................................................................................................................24
P. Kaufmann, Inc. v. Americraft Fabrics, Inc.,
232 F. Supp. 2d 220 (S.D.N.Y. 2002) ................................................................................23, 24
Peralta v. Figueroa,
Index No. 28093/06, 2007 WL 4104122 (N.Y. Sup. Ct. Nov. 14, 2007) ................................21
Pitcock v. Kasowitz, Benson, Torres & Friedman LLP,
74 A.D.3d 613 (1st Dept 2010) ........................................................................................21, 25
Primetime 24 Joint Venture v. Natl Broad. Co.,
219 F.3d 92 (2d Cir. 2000).......................................................................................................22
Profl Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49 (1993) ...................................................................................................................21
Rostropovich v. Koch Intl Corp.,
94 Civ. 2674 (JFK), 1995 WL 104123 (S.D.N.Y. Mar. 7, 1995) ............................................20
Roy Export Co. Establishment of Vaduz, Liechtenstein v. Columbia Broad. Sys., Inc.,
672 F.2d 1095 (2d Cir. 1982)...................................................................................................19
Select Comfort Corp. v. Sleep Better Store, LLC,
838 F. Supp. 2d 889 (D. Minn. 2012) ......................................................................................22
Shapiro & Son Bedspread Corp. v. Royal Mills Assocs.,
764 F.2d 69 (2d Cir. 1985).......................................................................................................24
Thryoff v. Nationwide Mut. Ins. Co.,
8 N.Y.3d 283 (2007) ................................................................................................................12
UMG Recordings, Inc. v. Escape Media Grp., Inc.,
107 A.D.3d 51 (1st Dept 2013) ..........................................................................................9, 10
UMG Recordings, Inc. v. Shelter Capital Partners LLC,
718 F.3d 1006 (9th Cir. 2013) .................................................................................................13
Vermette v. Kenworth Truck Co., Div. of Paccar, Inc.,
68 N.Y.2d 714 (1986) ..............................................................................................................10

- v -
Weissman Real Estate, Inc. v. Big V Supermarkets, Inc.,
268 A.D.2d 101 (2d Dept 2000) .............................................................................................22
White Plains Coat & Apron v. Cintas Corp.,
8 N.Y.2d 422 (2007) ................................................................................................................25
Winegrad v. N.Y. Univ. Med. Ctr.,
64 N.Y.2d 851 (1985) ..............................................................................................................10
Zuckerman v. City of N.Y.,
49 N.Y.2d 557 (1980) ..............................................................................................................10
STATUTES
17 U.S.C. 301 ..............................................................................................................................10
N.Y.C.P.L.R. 3013 ........................................................................................................................9
N.Y.C.P.L.R 3212 .......................................................................................................................10




- 1 -
INTRODUCTION
This case arises from Defendants massive willful copyright infringement and unfair
competition in violation of New York common law. Defendant Escape Media Group, Inc.
(Escape) owns the notorious Grooveshark music service through which it streams, i.e.,
performs, a massive catalog of recorded music for the public. Its unlicensed library includes
virtually the entire catalog of recorded music owned by Plaintiff UMG Recordings, Inc.
(UMG) including the iconic sound recordings created prior to February 15, 1972 at issue
herein (Pre-1972 Recordings). According to Escapes projections, the copyrighted sound
recordings of UMG and the other major record labels accounted for a staggering of the
songs that Escape streamed to of Grooveshark users. Based on these
estimates, Escape infringed UMGs copyrighted works billions of times since it launched the
current iteration of Grooveshark without any license from UMG and in flagrant violation of
UMGs exclusive rights.
Escapes pervasive copyright infringement was part of its premeditated business strategy
to exploit the popular sound recordings owned by UMG and other record labels in order to attract
users to Grooveshark without paying any licensing fees. Escapes Chairman openly admitted the
intentional nature of this infringing business model as follows:






See Affirmation of Gianni P. Servodidio (Servodidio Aff.), Ex. A. According to Escape, it
that it could engage in blatant copyright infringement and then
from UMG and the other major record labels for the use of their content. Id., Exs.

- 2 -
B-C. Indeed, Escape conceded that
Id., Ex. D.
Given the unlawful nature of its business model, Escape has been sued for copyright
infringement by every major record label.
1
In a case filed by Capitol Records, LLC in the
Southern District of New York, the court issued a comprehensive summary judgment decision
finding that Escape intentionally violated New York and federal copyright law by streaming to
Grooveshark users copies of Capitols sound recordings including Pre-1972 Recordings. Capitol
Records, LLC, d/b/a EMI North Am. v. Escape Media Grp., 12-CV-06646 (AJN)(SN), Slip Op.
at 2 (S.D.N.Y. May 28, 2014) (Report and Recommendation) (EMI), Servodidio Aff., Ex. E.
2

UMGs claims in this case address one particular facet of Escapes infringement: the
unauthorized exploitation of UMGs Pre-1972 Recordings. Those recordings are not covered by
the federal Copyright Act, but instead are protected exclusively under state law. For more than a
century, New York courts have held that owners of Pre-1972 Recordings are entitled to broad
protection against various acts of infringement and unfair competition that misappropriate the
economic value of the performances embodied in these sound recordings. The EMI decision, as
well as other recent cases, applied this established principle to uphold claims asserted by New
York copyright owners against unauthorized digital streaming services. In doing so, these courts
have affirmed that the common law of this state is both broad and sufficiently flexible to address
new forms of online piracy facilitated by rapid and ever-changing advances in technology.

1
UMG and two other major record labels (Sony and Warner) filed a copyright infringement lawsuit in the Southern
District of New York against Escape and its senior officers and employees for directing their employees to upload
infringing music to Grooveshark. See Br. for Summ. J., Arista Music, et al. v. Escape Media Grp. Inc., 11 Civ. 8407
(TPG) (Dkt. No. 69) (filed Feb. 18, 2014); see also SUF 18. Plaintiffs Motion for Summary Judgment in that
case is currently pending. See Servodidio Aff. 2.
2
At the time of filing of this complaint, Capitol Records was part of EMI Recorded Music, one of the major label
groups. Subsequent to the commencement of Capitol Records action against Escape, EMI was acquired by UMG.
Affirmation of Darren J. Schmidt (Schmidt Aff.) 26.

- 3 -
UMG is entitled to summary judgment holding Escape liable for common law copyright
infringement and unfair competition under New York law. There is no dispute that UMG is the
owner of the Pre-1972 Recordings at issue and that Escape has infringed UMGs common law
copyrights in those recordings by streaming copies of these works more than
to its users including nearly streams to users in this state without any
authorization or license to do so. See Schmidt Aff. 2-3, 22; Affidavit of Dr. Horowitz
(Horowitz Aff.) 39-41, Ex. E; see also Joint Statement of Undisputed Facts (SUF) 1, 4,
17. Moreover, Escape has admitted that it competes with UMG in the market for the
dissemination of music over the Internet. Def.s Amd. Answer & Countercls. 58 (Dkt. No. 79)
(hereinafter Amd. Answer). Accordingly, it obtained an unfair competitive advantage over
authorized streaming services by using UMGs sound recordings without a license or payment.
Finally, UMG is entitled to summary judgment dismissing Escapes specious
counterclaims, which are nothing more than a transparent attempt to deflect attention from the
infringing nature of its Grooveshark service. These counterclaims address three discrete
instances where UMG and a related company (which is a non-party to this action)
communicated, in a legally justified way, with third parties to object to their support of Escapes
infringing service. Based on the undisputed facts, these claims should be dismissed because:
(i) under the Noerr-Pennington doctrine, UMG cannot be subjected to liability for actions
undertaken directly or indirectly to enforce its copyrights and related contractual interests;
(ii) under New York law, UMG had an absolute legal justification to enforce its intellectual
property rights to address Escapes ongoing infringement; and (iii) Escape cannot establish that
UMG acted with malice or unlawful means, which is a required element of such claims.

- 4 -
FACTUAL AND PROCEDURAL BACKGROUND
I. UMGS EXCLUSIVE RIGHTS IN ITS CATALOG OF PRE-1972 RECORDINGS
UMG is one of the oldest, largest, and most respected record labels in the world, and is
the owner or exclusive United States licensee of the rights in thousands of iconic Pre-1972
Recordings. See Schmidt Aff. 2; SUF 1, 4. Some of those sound recordings contain the
performances of the most popular and successful recording artists of the 20th Century, such as
Buddy Holly, The Carpenters, Cat Stevens, Chuck Berry, The Jackson 5, Marvin Gaye, The
Supremes, The Temptations, and The Who. Schmidt Aff. 2. These recordings are not
protected by federal copyright law, but rather by the common law of the individual states. Infra
at 10-12.
UMG and its artists invested enormous time, skill, talent, and effort in creating the Pre-
1972 Recordings, in promoting them, and in distributing them to the public. In addition to
distribution in physical formats, such as CDs or vinyl records, UMGs Pre-1972 Recordings are
available in digital file formats for consumers to purchase and play on computers and mobile
devices. See Schmidt Aff. 20; SUF 2. In addition, UMGs Pre-1972 Recordings are
available for streaming, or contemporaneous playback, from a number of authorized sources
such as iTunes, Amazon, Spotify, Vevo, Rdio, and Rhapsody. SUF 3. Music streaming
services are an increasingly popular and important source for users to access UMGs music
catalog, including its Pre-1972 Recordings. See Schmidt Aff. 20.
II. ESCAPES INFRINGING GROOVESHARK SERVICE
A. Escapes Business Model
Escape owns and operates Grooveshark, a blatantly infringing pirate music service. See
Schmidt Aff. 22; EMI, Slip Op. at 2, 41, 43, 50, 52. Groovesharks stated mission is to provide
its users with unfettered, on-demand access to any song in the world. See Servodidio Aff., Ex.

- 5 -
H-1; SUF 7-8; Schmidt Aff. 23. Although UMG never has granted a license to Escape, the
Grooveshark service provides users with the ability to stream UMGs entire music catalog,
including its valuable Pre-1972 Recordings. Schmidt Aff. 22.
Grooveshark launched its streaming service in 2008, and now provides over 20 million
users with access to a catalog of over 15 million audio files. Servodidio Aff., Ex. O; SUF 6,
7, 9. Escapes internal projections estimated that % of the streams from Grooveshark are of
works belonging to the major labels, from which Escape had no licenses. Servodidio Aff., Ex. F;
EMI, Slip Op. at 37. These projections further confirmed that Escape has streamed billions of
infringing copies of UMGs works. Escape has profited from this pervasive infringement by
attracting users to Grooveshark and thereafter selling advertising and user subscriptions. See
Horowitz Aff. 15 & n.2; SUF 10; Servodidio Aff., Exs. H-4, H-8, L.
At all relevant times, Escape employed a business model for Grooveshark that was based
upon the use of infringing content. See Servodidio Aff., Exs. A, D, G, H-12, H-4, H-7, I-12,
J-M; EMI, Slip Op. at 37, 49, 50. Indeed, the senior executives of Escape openly acknowledged
that they required but did not have licenses from UMG and other major record labels to
stream their copyrighted sound recordings to Grooveshark users. Servodidio Aff., Exs. A-D, H-
34, H-6. Nonetheless, rather than obtaining such licenses, Escape made a calculated business
decision to launch Grooveshark, utilizing infringing label content in order to grow faster, reduce
costs and attempt to strike more favorable licensing deals. Escapes Chairman underscored this
business strategy in one internal email where he asked facetiously,

Id., Ex. C. Indeed, Escapes officers openly discussed the possibility
that they would never have to pay for their unauthorized use of copyrighted content.

- 6 -
Specifically, they hoped that by illegally growing their user base, they could collect valuable data
about Grooveshark users listening habits, which they could then sell to the labels for more than
Escape would have to pay in licensing fees. Id., Ex. A.
B. Escapes Unauthorized Use of UMGs Pre-1972 Recordings
As described in the Affidavit of Dr. Horowitz, Escapes Grooveshark service provides
users with on-demand access to an enormous library of unlicensed digital music files stored on
Escapes computer servers, including the Pre-1972 Recordings. Horowitz Aff. 18, 21. In
order to stream sound recordings to its users, Escape engaged in a multi-step process in which it
reproduced, distributed, and performed these music files.
First, Escape programmed its service
Horowitz Aff. 16, 22. In order to ensure that Grooveshark
provided a comprehensive music selection, Escape designed its servers
Id.;
SUF 12. Thus,
Horowitz Aff. 22.
Second, Escape distributed digital copies
of infringing files directly to its users. Horowitz Aff. 23.



Horowitz Aff. 24.
Third,



- 7 -
Horowitz
Aff. 25-26; see SUF 14.
Finally, as soon as Escape commenced the distribution of files to users, the songs
automatically started to play on the users computers, thereby resulting in the performance of
these files to Grooveshark users. Horowitz Aff. 27.
C. Escapes Streaming of UMGs Pre-1972 Recordings
Escapes database records confirm that it repeatedly infringed UMGs Pre-1972
Recordings. Escape maintained a database containing tables recording Groovesharks activities,
including, inter alia, the streaming of individual files to its users. SUF 17. Based on this data
and other records, see infra at 12, UMG has identified, for purposes of this litigation, a
representative sample of its Pre-1972 Recordings that Escape streamed to its users (hereinafter
the Works-in-Suit).
3
Escapes database records confirmed that it streamed this representative
sample of works at least times during the period for which Escape made data
available (from 2009 to 2013) including nearly streams to users located
in New York. Horowitz Aff. 39-41, Ex. E.
D. Escapes Ongoing Copyright Infringement and Its Pretextual Counterclaims
Against UMG
Notwithstanding the commencement of this action in 2010 and a related federal case
against Escape in 2011, Escape has continued to date to operate and grow the Grooveshark
service. See Schmidt Aff. 27; SUF 9, 16. Accordingly, UMG has taken appropriate
measures in furtherance of pending litigation to protect UMGs copyrights against ongoing
infringement by Escape and to enforce controlling contractual rights. In addition, a non-party

3
Plainly, the representative sample of works upon which UMG seeks a determination of liability is only a fraction
of the total infringements of UMGs catalog by Escape. This can be illustrated by the fact that Escape itself
acknowledged that UMG likely owned a of Escapes entire catalog, or as many as million songs. See
Servodidio Aff., Ex. F (UMG share of streams by Grooveshark); id., Ex. O (size of Grooveshark catalog).

- 8 -
with an indirect corporate relationship to UMG has taken similar action. Specifically:
Universal Music Distribution Corp. (UMGD), a non-party with a corporate
relationship to




Schmidt Aff. 29-33.
Universal Music Group International (UIM) another non-party with an indirect
corporate relationship to



Id. 34-36; SUF 19-20.
UMG owned a majority equity interest in a company called Isolation Network, Inc.
(INgrooves), a digital distributor of certain sound recordings owned by UMG and
other labels. Given this investment, UMG advised INgrooves that Grooveshark was
a highly infringing service and that UMG had filed legal claims against Escape, and
asked INgrooves not to support Escape and not to distribute any content owned by
UMG to Escape. Schmidt Aff. 37-41.
Having no substantive defense to UMGs infringement claims, Escape filed several
baseless counterclaims against UMG for alleged interference with contracts and business
relations based on the above-referenced communications. As discussed below, the undisputed
record confirms that the communications at issue directly related to the efforts by UMG and
related companies to curtail the massive infringement of its copyrights by Escapes Grooveshark
service and thus were wholly appropriate and justified.
III. PROCEDURAL HISTORY
On January 6, 2010, UMG filed a complaint (the Complaint) in this action asserting
causes of action alleging: (i) infringement of UMGs common law copyrights in the Pre-1972
Recordings, and (ii) unfair competition.
4
Compl. 28-34 (Dkt. No. 1).

4
As this Court noted during the conference on June 25, 2014, UMG has properly pled a common law infringement
and unfair competition claim against Escape. As such, under the liberal notice pleading standards in New York,

- 9 -
On June 16, 2010, Escape filed an amended answer to the Complaint asserting two
inapposite federal defenses arising under the Digital Millennium Copyright Act (DMCA) and
the Communications Decency Act (CDA). First Amd. Answer 48-49 (Dkt. No. 34). On
August 30, 2010, UMG moved to strike these defenses. Pl.s Mot. to Strike (Dkt. No. 40).
Thereafter, on January 21, 2011, Escape filed an amended answer and asserted counterclaims
against UMG for alleged violations of state antitrust laws and for tortious interference with
contract and business relations. Amd. Answer (Dkt. No. 79). In March 2011, UMG also moved
to dismiss Escapes counterclaims. Pl.s Mot. to Dismiss Countercls. (Dkt. No. 84).
On July 10, 2012, the Court issued an order: (i) granting UMGs Motion to Dismiss
Escapes affirmative defense under the CDA, but denying UMGs Motion to Dismiss Escapes
DMCA defense (this latter portion was reversed on appeal)
5
; (ii) granting UMGs Motion to
Dismiss Escapes antitrust counterclaim; and (iii) denying UMGs Motion to Dismiss Escapes
tortious interference claims, finding that it could not dismiss those counterclaims at [that]
stage, before the parties had an opportunity to take discovery. Memo. & Order at 25 (Dkt.
No. 121). Since the Courts ruling, Escape has not conducted any discovery on these
counterclaims. Servodidio Aff. 3.

UMG was not required to allege a separate and distinct claim for Escapes violation of each of UMGs exclusive
rights. N.Y. C.P.L.R. 3013 (pleading need only provide a party with notice of the facts and transactions
underlying the claims at issue and material elements of each cause of action), 3017(a) ([T]he court may grant any
type of relief . . . appropriate to the proof whether or not demanded, imposing such terms as may be just.); Siegel &
Connors, N.Y. Practice 208-09; see also infra at 12 (elements of common law infringement).
5
On April 23, 2013, the First Department reversed the Courts Order and dismissed Escapes DMCA defense
because it conflicted with the plain language of the Copyright Act, which left protection of the Pre-1972 Recordings
exclusively to New York common law. UMG Recordings, Inc. v. Escape Media Grp., Inc., 107 A.D.3d 51, 57-58,
964 N.Y.S.2d 106, 110-12 (1st Dept 2013).

- 10 -
ARGUMENT
I. APPLICABLE STANDARDS FOR SUMMARY JUDGMENT UNDER N.Y.
C.P.L.R. 3212
New York Civil Practice Law and Rules 3212 provides that summary judgment shall be
granted if, upon all the papers and proof submitted, Plaintiff has established the elements of the
cause of action as a matter of law. See Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562 (1980);
Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). When moving for summary
judgment, the proponent must first make a prima facie showing of entitlement to judgment as a
matter of law. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman, 49 N.Y.2d at
562. Such a showing can be made by tendering sufficient evidence to demonstrate the absence
of any material issues of fact. Alvarez, 68 N.Y.2d at 324.
If a prima facie showing has been made, the burden shifts to the opposing party to
produce evidence sufficient to establish the existence of material issues of fact. Id.; Vermette v.
Kenworth Truck Co., Div. of Paccar, Inc., 68 N.Y.2d 714, 717 (1986); Zuckerman, 49 N.Y.2d at
562.
II. NEW YORKS LONG HISTORY OF PROTECTION OF PRE-1972
RECORDINGS UNDER COMMON LAW
It is well established that Pre-1972 Recordings are protected exclusively by state law.
See 17 U.S.C. 301; Capitol Records, Inc. v. Naxos of Am., Inc. (Naxos), 4 N.Y.3d 540, 558-
60 (2005); UMG v. Escape, 107 A.D.3d at 57-58; see also Capitol Records, Inc. v. Naxos of Am.,
372 F.3d 471, 477-78 (2d Cir. 2004); Goldstein v. California, 412 U.S. 546, 552 (1973)
(recognizing that the Copyright Act does not govern Pre-1972 Recordings).
In part due to the absence of federal protection, New York has a century-old tradition of
providing broad common law protection against infringement of Pre-1972 Recordings. See, e.g.,
Fonotipia Ltd. v. Bradley, 171 F. 951, 961, 964 (E.D.N.Y. 1909) (granting injunctive relief on a

- 11 -
state law claim of unfair competition based on the defendants distribution of records copied
from plaintiffs recordings). Later, in the seminal case of Metropolitan Opera Assn v. Wagner
Nichols Recorder Corp., the court described the rationale for this common law protection:
To refuse to the groups who expend time, effort, money and great skill in
producing these artistic performances the protection of giving them a property
right in the resulting artistic creation would be contrary to existing law,
inequitable, and repugnant to the public interest. . . . Equity will not bear witness
to such a travesty of justice; it will not countenance a state of moral and
intellectual impotency. Equity will consider the interests of all parties coming
within the arena of the dispute and admeasure the conflict in the scales of
conscience and on the premise of honest commercial intercourse.
199 Misc. 786, 802 (N.Y. Sup. Ct. N.Y. County 1950), affd 279 A.D. 632 (1st Dept 1951).
The core principles of New Yorks protection of Pre-1972 Recordings were reiterated and
extended by the Court of Appeals in 2005 in Capitol Records, Inc. v. Naxos of America, Inc.
The defendant in Naxos had digitally re-mastered certain sound recordings owned by the
plaintiffs and then sold the re-mastered recordings to the public without license or authorization
from the plaintiffs. 4. N.Y.3d. at 544, 545. When sued for infringement, defendants argued,
inter alia, that the use of this digital technology provided a complete defense to the infringement
claim. Id. at 546, 564. In a comprehensive opinion, the Naxos court rejected this defense and
confirmed that New York common law provided relief for the infringement of Pre-1972
Recordings upon a showing of the ownership of a valid common law right and the unauthorized
use of the protected work. Id. at 559-60, 563-64.
The Court of Appeals holding in Naxos confirms that New York common law is flexible
and can adapt to protect owners of Pre-1972 Recordings against various forms of infringement
and unfair competition. Thus, as discussed herein, a party may not evade liability under New
York law by utilizing new forms of technology to infringe the rights of owners of Pre-1972
Recordings. See id. at 555 (the common law has allowed courts to keep pace with constantly

- 12 -
changing technological and economic aspects so as to reach just and realistic results) (internal
quotation marks omitted); see also Thryoff v. Nationwide Mut. Ins. Co., 8 N.Y.3d 283, 291
(2007) ([I]t is the strength of the common law to respond, albeit cautiously and intelligently, to
the demands of commonsense justice in an evolving society.) (quoting Madden v. Creative
Servs., 84 N.Y.2d 738, 744 (1995)).
6

III. UMG IS ENTITLED TO SUMMARY JUDGMENT ON ITS COMMON LAW
COPYRIGHT INFRINGEMENT CLAIMS
A. Applicable Standards for Common Law Copyright Infringement
Under New York law, a valid claim for common law copyright infringement requires a
showing of: (i) the existence of a valid common law copyright; and (ii) the unauthorized use of
the work protected by the copyright. Naxos, 4 N.Y.3d at 559-60, 563; Capitol Records, LLC v.
Harrison Greenwich, LLC, 4 Misc.3d 202, 204 (N.Y. Sup. Ct. Comm. Div. 2014).
B. UMGs Ownership of the Pre-1972 Recordings
As set forth in the accompanying Schmidt Affirmation, UMG acquired all rights, title,
and interest in each of the Works-in-Suit, either through written assignments or as works-for-
hire. Schmidt Aff. 3-19, Exs. A-B; see also SUF 4. The supporting documents are
sufficient to prove UMGs ownership of each copyright. See Jasper v. Bovina Music, Inc., 314
F.3d 42, 47 (2d Cir. 2002) (signed writings establish copyright ownership). As owner of the
common law copyrights in the Works-in-Suit, UMG possesses the exclusive right to exploit
these works, or to license others to do so. See Naxos, 4 N.Y.3d at 563.
C. Escapes Infringement of UMGs Common Law Rights
Escape is liable for common law copyright infringement because it engaged in the

6
The Naxos court also reaffirmed the ongoing viability of a separate claim for unfair competition based on the
unlawful copying of Pre-1972 Recordings. In particular, the court held that unfair competition, in addition to
unauthorized copying and distribution requires competition in the marketplace or similar actions designed for
commercial benefit. Naxos, 4 N.Y.3d at 563-64 (collecting cases).

- 13 -
unauthorized use of UMGs copyrighted content with resulting injury to UMG. See Naxos,
4 N.Y.3d at 559-60, 563.
The undisputed facts before the Court confirm that Escape engaged in the massive and
intentional use of UMGs content without its authorization. As set forth in the Affidavit of
Dr. Horowitz, UMG utilized industry standard audio fingerprinting technology from Audible
Magic a leading software vendor to confirm that Escape streamed the Works-in-Suit to its
users. Horowitz Aff. 30-41; Affidavit of Vance Ikezoye 3-6; Affirmation of Lindsay W.
Bowen 4-5.
7
Escapes database records further confirm that it streamed copies of the Works-
in-Suit to its users more than times, including nearly streams to users in
New York. Horowitz Aff. 39-41.
Indeed, there was nothing subtle or nuanced about Escapes conduct. Escape created a
thriving pirate business based on its unlicensed use of popular label content. See supra at 4-5. In
order to operate this business and attract users, Escape provided access to virtually the entire
catalog of UMGs sound recordings, including the Works-in-Suit. Escape knew that it required a
license to use UMGs content in this manner and it repeatedly acknowledged this legal obligation
in numerous emails and other communications discussing the need to from
UMG. Supra at 1-2.
The harm to UMG as a result of Escapes infringement is manifest. The viability of
UMGs entire business depends on its ability to maintain the exclusive rights to exploit its sound

7
As multiple courts have recognized, Audible Magics software is based on recognizing the unique content of an
underlying audio work and creating an acoustic fingerprint, which is then matched against its Global Rights
Registry Database to identify the copyright owner. See, e.g., EMI, Slip Op. at 12-14; UMG Recordings, Inc. v.
Shelter Capital Partners LLC, 718 F.3d 1006, 1012 (9th Cir. 2013); Arista Records LLC v. Lime Wire LLC, 06 Civ.
05936 (KMW), 2010 WL 10031251, at *6 (S.D.N.Y. Aug. 9, 2010) (fingerprinting technology, available from
commercial vendors such as Audible Magic, is the most effective available means of content-recognition filtering
based on recognizing the unique content of an underlying audio-visual work and detecting and preventing copying
of that content); Arista Records LLC v. Myxer Inc., CV 08- Civ. 03935 (GAF)(JCX), 2011 WL 11660773, at *5
(C.D. Cal. Apr. 1, 2011).

- 14 -
recordings. Schmidt Aff. 20. Here, Escape engaged in the wholesale taking of UMGs entire
music catalog in order to attract users to Grooveshark and profit from sales of advertising and
subscriptions. As a result, Escapes service directly competed with numerous legitimate
services, which paid UMG for the valuable rights to use its content for on-demand streaming to
their users. See id. 20, 24. Absent relief from this Court, there would be little incentive for
any online service to secure such rights from UMG, as opposed to simply taking the content
without authorization and payment as Escape did.
Based on the above, Escape has engaged in infringing conduct as a matter of law. Naxos,
4 N.Y.3d at 555, 563-64. To protect common law copyright interests, New York courts utilize a
flexible and evolving approach that focuses on the nature of the conduct and damage to the
copyright owner. Supra at 10-12. The record before the Court is overwhelming that Escapes
unauthorized use of UMGs copyrighted works, including the Works-in-Suit, was intentional and
widespread and has threatened to destroy the very lifeblood of UMGs business. No more is
necessary for Escape to be found liable for copyright infringement under New York law.
***
Although Escapes massive use of the Works-in-Suit without authorization constitutes
copyright infringement as a matter of law, Escapes conduct invaded a number of distinct and
severable exclusive rights belonging to UMG.
1. Escapes Infringing Distribution of UMGs Pre-1972 Recordings
Under New York law, the owners of copyrights in Pre-1972 Recordings have the
exclusive right to distribute their works. See Naxos, 4 N.Y.3d at 545, 559-60; Metropolitan
Opera, 199 Misc. at 786, 797-99; Firma Melodiya v. ZYX Music GmbH, 882 F. Supp. 1306,
1316, 1318 (S.D.N.Y. 1995).

- 15 -
In the online context, it is well settled that the distribution of digital files over the Internet
violates a copyright owners exclusive rights. See EMI, Slip Op. at 46-47, 51-52; Capitol
Records, LLC v. ReDigi, Inc., 934 F. Supp. 2d 648, 651, 657 n.8 (S.D.N.Y. 2013) ([A]n
electronic file transfer . . . fit[s] within the definition of distribution of a phonorecord under
New York and federal law (internal quotation marks omitted)); Arista Records, LLC v.
Usenet.com, Inc., 633 F. Supp. 2d 124, 146-49 (S.D.N.Y. 2009) (electronic bulletin board service
infringed distribution right by sending copies of MP3 file to users); see also LondonSire
Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 169, 173-74 (D. Mass. 2008); Arista Records LLC
v. Greubel, 453 F. Supp. 2d 961, 968 (N.D. Tex. 2006).
Here, it is undisputed that Escape distributed to its users millions of digital copies of
UMGs Pre-1972 Recordings. See Horowitz Aff. 23-25, 39-41, Ex. E. As described by Dr.
Horowitz, Escapes distribution of digital files from its servers to the computers of Grooveshark
users Id. 23.
Moreover, Escapes distribution of these files
Id. 25; see SUF 14. Since Escape had no license
from UMG to engage in this conduct, Escape unquestionably violated UMGs exclusive rights to
control the distribution of its sound recordings.
2. Escapes Infringing Reproduction of UMGs Pre-1972 Recordings
New York common law also protects a copyright owners exclusive right to reproduce its
Pre-1972 Recordings. See Naxos, 4 N.Y.3d at 545, 559-60; Metropolitan Opera, 199 Misc. at
786, 797-99; Harrison Greenwich, 44 Misc.3d at 204-05; EMI, Slip Op. at 43-44; EMI Records
Ltd. v. Premise Media Corp., Index No. 601209/08, 2008 N.Y. Misc Lexis 7485, at *9 (N.Y.
Sup. Ct. Aug. 8, 2008).

- 16 -
As the Commercial Division of this Court recently held in Harrison Greenwich, it is an
obvious legal conclusion that the unauthorized duplication of digital music files over the
Internet infringes a copyright owners exclusive right to reproduce. 4 Misc.3d at 205 (citing
ReDigi, 934 F. Supp. 2d at 649-50). Other courts similarly have recognized that [i]t is simply
impossible that the same material object can be transferred over the Internet. Thus, logically,
. . . the Internet transfer of a file results in a material object being created elsewhere at its finish.
ReDigi, 934 F. Supp. 2d at 649-50 (citation omitted).
Here, Escape violated UMGs exclusive common law right of reproduction in multiple
ways. First,
Horowitz Aff. 22. Further, Escape reproduced the Works-in-Suit when
it of copies of these works to its users computers for streaming.

Id. 25; see SUF 14.
Because Escape had no authorization from UMG for any of these acts of reproduction, Escape is
liable for violating UMGs exclusive rights under New York law.
3. Escapes Infringing Public Performance of UMGs Pre-1972 Recordings
As recognized by the Court of Appeals in Naxos and reiterated by numerous other courts,
New York protects the common law copyrights belonging to the owners of Pre-1972 Recordings
regardless of the technology used to engage in the infringement. See supra at 11. Indeed, one of
the unique characteristics of New Yorks common law is that it provides broad and flexible
protection against various methods of infringement. Accordingly, as recognized in Naxos, the
protection afforded to Pre-1972 Recordings must be flexible enough to keep pace with
constantly changing technological and economic aspects so as to reach just and realistic results.
Naxos, 4 N.Y.3d at 555 (quoting Metropolitan Opera, 199 Misc. at 799).

- 17 -
In the instant case, Escapes public performance of UMGs Pre-1972 Recordings via
digital streaming to of users threatens to destroy the commercial value of these
works. In recent years, consumers have increasingly obtained copyrighted music from on-
demand streaming services that provide instant access to sound recordings on any Internet-
connected device. See Schmidt Aff. 20. By providing users with unlimited on-demand access
to UMGs Pre-1972 Recordings, Escape like the defendant in Naxos is simply using a new
form of technology to infringe UMGs intangible property rights.
For these reasons, a number of courts recently have held that New York common law
protects against the unauthorized public performance of Pre-1972 Recordings via digital
streaming. Most notably, the EMI court found that Escape violated the plaintiffs exclusive right
to control the public performance of its Pre-1972 Recordings when Escape streamed copies of
those works to users of Grooveshark. EMI, Slip Op. at 42-43.
In another recent decision, the Commercial Division granted summary judgment holding
that a website operator violated the plaintiffs common law rights by streaming copies of a Pre-
1972 Recording from its website. Harrison Greenwich, 44 Misc.3d at 204-05; see also Index
No. 652249/2012, Slip Op. at 1 (Dkt. No. 86), Servodidio Aff., Ex. N. The court expressly
confirmed that by engaging in unauthorized streaming, the [defendant] committed both an
unauthorized reproduction and public performance of the recording. Id., Slip Op. at 1; see also
Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198, 1206 (C.D. Cal. 2010).
Under controlling case law, playing copyrighted music via an Internet website such as
Grooveshark constitutes a performance of that work. As the court in the ReDigi case held,
audio streams are performances because a stream is an electronic transmission that renders the
musical work audible as it is received by the client-computers temporary memory. This

- 18 -
transmission, like a television or radio broadcast, is a performance because there is a playing of
the song that is perceived simultaneously with the playback. ReDigi, 934 F. Supp. 2d at 652
(internal quotation marks omitted).
Moreover, Escapes streaming of UMGs copyrighted works to millions of users is a
performance of those works to the public because any member of the public can access
Grooveshark in order to receive streams from Escape. See SUF 15. The fact that Grooveshark
users receive streams from Escape at different times or places is immaterial. Escapes streaming
violates the exclusive right of public performance because it communicates the same
contemporaneously perceptible images and sounds to multiple people. Am. Broad. Cos., Inc. v.
Aereo, Inc., 134 S.Ct. 2498, 2501-02 (2014) (Internet video streaming is a public performance
under federal law); ReDigi, 934 F. Supp. 2d at 652 (audio streaming is a public performance).
Here, the undisputed facts show that Escape streamed UMGs Pre-1972 Recordings to
Grooveshark users more than times. Horowitz Aff., Ex. E. In so doing,
Id. 24.
Accordingly, as set forth in the Horowitz Affidavit, Escape was responsible for the performance
of that work to the computers of multiple users. See id. 24-27. Based on the authorities set
forth above, this conduct invaded UMGs rights to control the public performance of its Pre-
1972 Recordings on digital streaming services such as Grooveshark. EMI, Slip Op. at 42-43, 51-
52.
IV. UMG IS ENTITLED TO SUMMARY JUDGMENT ON ITS UNFAIR
COMPETITION CLAIMS
UMG also is entitled to summary judgment on its separate claim for unfair competition.
In order to prevail on this claim, UMG must show that Escape (i) used UMGs works without
authorization; and (ii) that it either competed with UMG in the marketplace or acted for

- 19 -
commercial benefit. Naxos, 4 N.Y.3d at 563 (collecting cases); Capitol Records, Inc. v.
MP3tunes, LLC, 821 F. Supp. 2d 627, 650 (S.D.N.Y. 2011); see also Roy Export Co.
Establishment of Vaduz, Liechtenstein v. Columbia Broad. Sys., Inc., 672 F.2d 1095, 1105 (2d
Cir. 1982) (noting the breadth of New York unfair competition law as encompassing any form
of commercial immorality, or simply as endeavoring to reap where (one) has not sown
(citations omitted)).
Here, UMG has established these elements of unfair competition as a matter of law. First,
as set forth above, Escape has used UMGs copyrighted works without authorization to do so.
See supra at 12-18. Second, Escape affirmatively conceded that Escape is a competitor of UMG
in the marketplace for the dissemination of recorded music over the Internet, including within
New York State. Amd. Answer 58 (Dkt. No. 79). Finally, there is no dispute that Escape
acted for its commercial benefit. Based on only the representative sample of UMGs works at
issue, Escape streamed the Works-in-Suit more than times to its users, thereby
exploiting the appeal of these sound recordings to attract users and generate revenues. See supra
at 5, 7. As its own Chairman admitted, Escape affirmatively used UMGs popular content of
UMG in order to grow its business exponentially Servodidio Aff.,
Ex A.
Escapes unfair competition is analogous to that of the defendants in Metropolitan Opera.
There, the plaintiffs operatic performances had been broadcast on the radio, and recordings of
the performances were licensed by the plaintiff for sale to the public. See 199 Misc. at 789-90.
The Metropolitan Opera defendants copied the same performances from the radio and created
and sold their own recordings. Id. In granting a preliminary injunction, the court found a prima
facie case of unfair competition because:

- 20 -
Plaintiff Metropolitan Opera derives income from the performance of its operatic
productions in the presence of an audience, from the broadcasting of those
productions over the radio, and from the licensing to Columbia Records of the
exclusive privilege of making and selling records of its own performances.
Columbia Records derives income from the sale of the records which it makes
pursuant to the license granted to it by Metropolitan Opera. Without any payment
to Metropolitan Opera for the benefit of its extremely expensive performances,
and without any cost comparable to that incurred by Columbia Records in making
its records, defendants offer to the public recordings of Metropolitan Operas
broadcast performances.
Id. at 786.
The court held that established precedent [left] no doubt of [the courts] recognition that
the effort to profit from the labor, skill, expenditures, name and reputation of others which
appears in this case constitutes unfair competition which will be enjoined. Id.
Through its unauthorized commercial streaming of UMGs Pre-1972 Recordings, Escape
unquestionably appropriated the labor, skill, and expenditures of UMG and its artists for
Escapes commercial advantage. If users can obtain unlawful access to a particular recording for
free, they are much less likely to visit a licensed streaming website or purchase a CD or a digital
copy from a legitimate online service. Moreover, if a commercial enterprise can make those
recordings available to the public for free, eventually no other enterprise will pay to license those
rights from UMG. Such conduct presents a classic case of unfair competition under New York
law. See, e.g., Capitol Records, Inc. v. Wings Digital Corp., 218 F. Supp. 2d 280, 286 (E.D.N.Y.
2002) (unfair competition where gravamen of complaint [was] that defendants acted in bad faith
by misappropriating copyrighted music for their own financial gain and in order to realize a
commercial advantage over that of the rightful owners of such copyrights); Metropolitan
Opera, 199 Misc. at 786, 803; Apple Corps. Ltd. v. Adirondack Grp., 124 Misc.2d 351, 354-55
(N.Y. Sup. Ct. N.Y. County 1983); Rostropovich v. Koch Intl Corp., 94 Civ. 2674 (JFK), 1995
WL 104123, at *5-6 (S.D.N.Y. Mar. 7, 1995); see also Flo & Eddie, Inc. v. Sirius XM Radio,

- 21 -
Inc., CV 13-5693 PSG (RZx), Slip Op. at 13 (C.D. Cal. Sept. 22, 2014), Servodidio Aff., Ex Q
(unauthorized public performance via streaming of Pre-72 Recordings constituted unfair
competition under California law).
V. UMG IS ENTITLED TO SUMMARY JUDGMENT ON ESCAPES
COUNTERCLAIMS
Under New York law, the elements for tortious interference with contract or business
relations are: (i) the existence of a valid contract or a business relationship with the third party;
(ii) knowledge of that contract or relationship; (iii) intentional procurement of the third partys
breach without justification or solely out of malice or through illegal means; (iv) an actual
breach of the contract or injury to the business relationship; and (v) damages. Lama Holding Co.
v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996) (elements of tortious interference with
contract); Pitcock v. Kasowitz, Benson, Torres & Friedman LLP, 74 A.D.3d 613, 614-15 (1st
Dept 2010) (interference with business relations).
As discussed below, the undisputed record confirms that UMG as well as UIM (a non-
party related to UMG) engaged in the challenged conduct in order to curtail the scope and impact
of Escapes ongoing infringement pending the adjudication of UMGs claims.
8
Accordingly,
UMG is entitled to summary judgment dismissing Escapes baseless counterclaims.
A. UMGs Conduct Is Protected by the Noerr-Pennington Doctrine
The Noerr-Pennington doctrine provides broad immunity from liability for actions taken
prior to and during the litigation of claims. Profl Real Estate Investors, Inc. v. Columbia
Pictures Indus., Inc., 508 U.S. 49, 65 (1993). This immunity applies to tortious interference

8
While the actions of UIM are legally justified on their face, they are the actions of a non-party and cannot be
attributed to UMG. See McHale v. Anthony, 70 A.D.3d 463, 465 (1st Dept 2010) (summary judgment for tort
defendant where separate entity engaged in the accused conduct); Peralta v. Figueroa, Index No. 28093/06, 2007
WL 4104122, at *13-14 (N.Y. Sup. Ct. Nov. 14, 2007) (dismissing complaint against corporate defendant where
corporate affiliate was responsible for the conduct at issue).

- 22 -
claims under New York state law. Weissman Real Estate, Inc. v. Big V Supermarkets, Inc., 268
A.D.2d 101, 106 (2d Dept 2000); Friends of Rockland Shelter Animals, Inc. v. Mullen, 313 F.
Supp. 2d 339, 343 (S.D.N.Y. 2004).
In applying the doctrine, courts have been mindful of the need to give adequate
breathing space to permit activities comparable to the filing of formal litigation. BE & K
Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002). For example, it is well settled that the Noerr-
Pennington doctrine protects the rights of intellectual property owners to police their copyrights
and trademarks by sending cease and desist letters to third parties. Select Comfort Corp. v. Sleep
Better Store, LLC, 838 F. Supp. 2d 889, 900 (D. Minn. 2012); Melea Ltd. v. Quality Models Ltd.,
345 F. Supp. 2d 743, 758 (E.D. Mich. 2004); Barqs Inc. v. Barqs Beverages, Inc., 677 F. Supp.
449, 453 (E.D. La. 1987); see also Primetime 24 Joint Venture v. Natl Broad. Co., 219 F.3d 92,
100 (2d Cir. 2000) (collecting cases).
As the EMI court found, Escape has engaged in and facilitated copyright infringement on
a massive scale via its Grooveshark service. EMI, Slip Op. at 79. The Grooveshark service has
attracted of users by streaming billions of copyrighted works owned by the
major record labels including UMG. Even though UMG and all the other labels have
commenced copyright infringement litigation against Escape in both state and federal courts,
Escape has continued to operate its Grooveshark service in willful violation of UMGs rights.
See Schmidt Aff. 27; SUF 16.
Given Escapes egregious conduct and the damage Escape continued to inflict during the
pendency of this action, UMG (for itself and for UMDG) and UIM communicated with third
parties to object to their role in supporting the infringement of UMGs sound recordings via the
Grooveshark service. Specifically, the undisputed evidence confirms that: (i) UMG contacted

- 23 -


Schmidt Aff. 29-33 ; (ii) UIM contacted
, id. 34-36; SUF 19-20; and
(iii) UMG owned a substantial equity interest in INgrooves and therefore objected to INgrooves
business dealings with an egregiously infringing pirate service that was profoundly damaging
UMGs business. Schmidt Aff. 38, 41.
Escape has failed to adduce any evidence during years of discovery to controvert any of
these facts. Nor does it have any facts to support its untenable allegations that UMG or UIM
engaged in any conduct for an improper purpose unrelated to the enforcement of UMGs
copyrights. See Amd. Answer 58 (Dkt. No. 79). Indeed, knowing full well that UMGs
conduct was legally justified, Escape never even took any discovery on the counterclaims after
this Court denied the Motion to Dismiss to give it that opportunity. Servodidio Aff. 3.
Given the body of case law holding that the Noerr-Pennington doctrine protects UMGs
litigation-related enforcement activities, and the undisputed record showing that the activities of
UMG (as well as non-party UIM) were directly related to such enforcement, summary judgment
is appropriate on this basis alone.
B. UMG Has a Legal Justification for its Actions
UMG is also entitled to summary judgment on Escapes counterclaims because the
undisputed facts establish that UMG and UIM had a legal justification to take steps to enforce its
copyrights and the contracts of its related company against the ongoing infringement by Escape.
New York courts have held that [s]eeking to protect a copyright by alerting a third party
that the copyright is being infringed constitutes a justification defense to [tortious interference
with contract or business relations claims]. P. Kaufmann, Inc. v. Americraft Fabrics, Inc., 232

- 24 -
F. Supp. 2d 220, 225 (S.D.N.Y. 2002) (citing Shapiro & Son Bedspread Corp. v. Royal Mills
Assocs., 764 F.2d 69, 75 (2d Cir. 1985)); Arista Records v. MP3Board, Inc., 00 Civ. 4660 (SHS),
2002 U.S. Dist. Lexis 16165, at *49 (S.D.N.Y. Aug. 29, 2002) (justification applies to notifying
third-party internet service provider of defendants infringement).
Here, as described above, Escapes counterclaims related to three instances where UMG
and UIM communicated with various business partners involved with and otherwise supporting
Escapes egregiously infringing service. The undisputed facts confirm that these
communications directly related to the enforcement of UMGs copyrights in its sound recordings
and related contractual rights. There is not a scintilla of evidence that UMG (or any non-party,
related company) acted out of any motivation other than protecting its copyrighted works.
Accordingly, such conduct simply is not tortious interference. To hold otherwise would subject
virtually every copyright owner who takes steps to protect and police its intellectual property
rights in the marketplace to retaliatory claims for tortious interference. For this reason, the Court
should grant UMGs motion for summary judgment as to both counterclaims.
C. Escape Cannot Meet the Standard for Tortious Interference Because UMG
Acted Without Malice
Finally, UMG is entitled to summary judgment because Escape cannot, as a matter of
law, establish that UMG acted with malice or improper means.
Under New York law, where a party acted in furtherance of its own pre-existing business
relationships with a third party, plaintiff must demonstrate that the defendants conduct was
motivated by malice or improper means as a necessary element. See, e.g., Foster v. Churchill,
87 N.Y.2d 744, 750-51 (1996); Lum v. New Century Mortg. Corp., 19 A.D.3d 558, 559
(2d Dept 2005); Collins v. E-Magine, LLC, 291 A.D.2d 350, 351 (1st Dept 2002); New Stadium
LLC, v. Greenpoint-Goldman Corp., Index. No. 600493/2005, 2010 N.Y. Misc. Lexis 1724, at

- 25 -
*1-2, 14, 19, 20-21 (N.Y. Sup. Comm. Div. Sept. 16, 2014); see also White Plains Coat & Apron
v. Cintas Corp., 8 N.Y.2d 422, 425-27 (2007); cf. Pitcock, 74 A.D.3d at 614-15 (malice or
wrongful means always required to establish tortious interference with economic advantage).
In the present case, there is no evidence whatsoever of malice. Rather, as described
above, the undisputed facts confirm that UMG engaged in the challenged conduct for the legally
justified purpose of seeking to prevent the ongoing infringement of copyrights by Escape. See
supra at 21-14. Tellingly, all communications from UMG and UIM asserting that Escape
operated an infringing service were manifestly accurate. Indeed, the record before the Court is
compelling that Escape flagrantly violated UMGs common law rights by streaming billions of
copies of UMGs works without any license. See supra at 6-7. Escape was fully aware of the
infringing nature of its business model and operations as confirmed by numerous internal emails
and other undisputed evidence. See, e.g., Servodidio Aff., Exs. A-D, F-M.
Given the foregoing, Escape cannot establish a necessary element of its claims that
UMGs actions constituted interference with Escapes contracts or business relations through
malice, improper means, or misrepresentation. UMG is therefore entitled to summary judgment
on Escapes counterclaims for this independent reason.
CONCLUSION
In view of the foregoing, UMG respectfully requests that this Court grant summary
judgment against Escape for common law copyright infringement of UMGs copyrights in the
Works-in-Suit, based on Escapes invasion of its rights of reproduction, distribution, and
performance, as well as for unfair competition, and for UMG on Escapes counterclaims for
tortious interference with contract and business relations.
Dated: September 23, 2014 R es pec tf u l l y s u bmitted,
I :
f l '~.~L. ~ r/~
Andrew H. Bart
Gianni P. Servodidio
Linds ay W. Bowen
JENNER &BLOCK LLP
919 Third Avenu e
37th Fl oor
New York, NY 10022
tel . (212) 891-1600
f ax (212) 891-1699
Attorney s f or Pl aintif f
-26-