Motion To Dismiss Filed in Pro Music Rights’ Suit

Apple, Amazon, Google, Spotify, Digital Media Association, and others filed a motion to dismiss and memorandum in support of their motion on Friday in the District of Connecticut seeking for the complaint filed by Pro Music Rights to be dismissed in its entirety.

Pro Music Rights (PMR), a performance rights organization, licenses musical works so they can be performed publicly. PMR sued the music streaming services and entities representing broadcast radio and television stations for antitrust violations “by conspiring not to take licenses from PMR.” However, the defendants stated that PMR “allege[d] no facts suggesting more than Defendants’ separate, independent, and rational decisions not to buy what PMR is selling.” 

PMR claimed a “buyer conspiracy” against it exists among the defendants, but the motion and memorandum asserted that the company has not adequately supported this claim. PMR also alleged a monopsony claim against the defendants “based on the long, legally-rejected concept that a monopoly (or monopsony) can be ‘shared’ by a group of independent firms.”  The defendants asserted that the Pro Music Rights’ monopsonization claims should be dismissed “because the law rejects shared monopsonization as a theory.”

The lawsuit concerns rights in musical works, “the underlying notes and lyrics written by a songwriter – not the separate copyrights in sound recordings made from those works.” The defendants asserted that they often obtain blanket licenses from performance rights organizations for pieces that they expect will be played because of their popularity. 

The defendants noted that while PMR might have about 7.4 percent of the United States’ public performance rights, these musical works are not popular and were thus not expected to be played.  For example, it only had one song that peaked at number 90 on the U.S. Billboard Hot 100; which the defendants alleged PMR does not actually have the rights to. Furthermore the defendants claimed that “[i]nstead of assembling a repertory that potential licensees might want, PMR has opted to pursue a different path – becoming a serial litigant.”

The defendants argued that the complaint should be dismissed because it does not plausibly allege any conspiracy under Section 1 of the Sherman Act and the “conspiracy allegations are purely conclusory.” Moreover, they alleged that the complaint does not claim “conscious parallelism” or the “plus factors” for the court to “reasonably infer the existence of an unlawful conspiracy.” The defendants claimed that this allegation is implausible and should be dismissed for failure to suggest conspiracy. They further claimed that Pro Music Rights’ allegations fail to state a claim under Connecticut law and that Pro Music Rights’ complaint should be dismissed.

The defendants are represented by Eimer Stahl LLP; Izard, Kindall & Raabe LLP; Wilson Sonsini Goodrich & Rosati P.C.; Greenburg Traurig, LLP; Mayer Brown LLP; Fletch, Heald & Hildreth, PLC; Fenwick & West LLP; Pullman & Comley, LLC; Davis Wright Tremaine LLP; Lewis Brisbois Bisgaard & Smith LLP; Wiggin and Dana LLP; and Quinn Emanuel Urquhart & Sullivan, LLP.

Pro Music Rights filed individual suits against the defendants, such as Amazon and Spotify towards the end of 2019.