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Case 4:17-cv-05343-YGR Document 170 Filed 04/10/20 Page 1 of 37 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 GREG KIHN, ET AL., CASE NO. 17-cv-05343-YGR a 12 Plaintiffs, ORDER GRANTING MOTION FOR CLASS CERTIFICATION; GRANTING IN PART AND 13 vs. DENYING IN PART MOTIONS TO SEAL 14 BILL GRAHAM ARCHIVES, LLC, ET AL., Dkt. No. 107, 109, 120, 126, 128, 145, 167 15 Defendants. 16 This case arises from defendants’ exploitation of audio and video recordings of live 17 musical performances, and the musical compositions performed therein, from the 1950s to the United States District Court Northern District of Californi Northern District of 18 1990s. Plaintiffs Greg Kihn and Rye Boy Music, LLC (Kihn’s music publisher) allege that 19 defendants Bill Graham Archives, LLC dba Wolfgang’s Vault; Norton, LLC; and William Sagan 20 distributed and sold in thousands of recordings acquired from a dozen private collections— 21 recordings that captured live performances spanning several decades, made by concert producers 22 and sound engineers without the performers’ authorization. Plaintiffs allege that the conduct 23 began in 2006 when defendants began offering digital downloads or on-demand streaming on two 24 websites: (1) wolfgangs.com, which offers audio recordings; and (2) concertvault.com, which 25 offers both audio and audiovisual recordings for on-demand streaming (hereinafter, “Websites”).1 26 27 1 Defendants also launched a “Music Vault” YouTube channel in early 2014, offering 28 audiovisual recordings from the collections at issue for on-demand streaming. (Declaration of William Sagan, Dkt. No. 110-1, ¶¶ 30-32.) Case 4:17-cv-05343-YGR Document 170 Filed 04/10/20 Page 2 of 37 1 Plaintiffs Kihn and Rye Boy bring this motion seeking to certify two classes: a Composer 2 Class and a Performer Class.2 With respect to the Composer Class, plaintiff Rye Boy seeks to 3 represent a putative class of composers of musical works alleging infringement of copyrighted 4 musical compositions based upon unauthorized sale and distribution of sound recordings and 5 audiovisual recordings. With respect to the Performer Class, plaintiff Kihn seeks to represent a 6 putative class of live music performers, alleging that defendants trafficked in recordings of their 7 live musical performances without authorization in violation of 17 U.S.C. section 1101. 8 Defendants oppose class certification arguing that plaintiffs cannot meet any of the 9 requirements to certify a class under either Rule 23(b)(2) or (b)(3). In summary, they contend that 10 individualized issues arise from the creation and ownership of the live music recordings, as well as 11 from licensing arrangements and their alleged defenses of consent, fair use, and untimeliness. a 12 While defendants raise arguments in their opposition as to all the elements of Rule 23, the focus of 13 the fight here is whether common issues of fact and law would predominate, as required by Rule 14 23(b)(3). 15 As set forth more fully herein, with respect to the Composer Class, the Court concludes 16 plaintiffs’ prima facie case for copyright infringement may be established readily on common 17 evidence. In opposition to class certification, defendants have put forward a common set of United States District Court Northern District of Californi Northern District of 18 contractual agreements, applicable to the entire class, which they contend preclude liability. 19 Consequently, the Court concludes that common issues of fact and law would predominate on the 20 21 2 In response to defendants’ opposition on the grounds that the class definitions in the 22 complaint constituted impermissible “fail-safe” classes, plaintiffs narrowed their proposed definitions as follows: 23 Composer Class: All owners of copyrights in the musical compositions that 24 were recorded at a non-studio performance which have been reproduced, performed, distributed, or otherwise exploited by Defendants during the period 25 from September 14, 2014 to the present. 26 Performer Class: All persons whose non-studio performances are fixed on the sound recordings and audiovisual works which have been reproduced, 27 performed, distributed, or otherwise exploited by Defendants during the period from September 14, 2014 to the present. 28 (See Reply Brief at 3:1-9.) 2 Case 4:17-cv-05343-YGR Document 170 Filed 04/10/20 Page 3 of 37 1 copyright infringement claims and the Composer Class should be certified. 2 For much the same reasons, the Court concludes that common issues would predominate 3 on the section 1101 claim of the Performer Class. As explained below, the Court has considered 4 the novel legal question of the evidentiary burdens on a claim under section 1101. Having 5 carefully examined the text and purposes of the statute, as well as principles of evidence and 6 statutory interpretation bearing on the question, the Court finds the authorization requirement is an 7 affirmative defense, and defendants bear the burden to establish authorization. As with their 8 affirmative defenses to the Composer Class’s claims, defendants’ opposition to certification of the 9 Performer Class relies on the same limited number of agreements, applicable to all class members, 10 for their contention that the recordings and their exploitation were authorized. Thus, on the record 11 put forward by the parties at class certification, common issues of fact and law predominate on the a 12 Performer Class’s section 1101 claim, and certification of the Performer Class is appropriate. 13 Accordingly, having carefully considered the papers submitted, the pleadings in this 14 action, the admissible evidence,3 and the arguments of the parties, and for the reasons set forth 15 below, the Court GRANTS the Motion for Class Certification of: (1) a Composer Class for 16 copyright infringement, and (2) a Performer Class for violation of the Anti-Bootlegging Statute, 17 17 U.S.C. section 1101 as defined herein. United States District Court Northern District of Californi Northern District of 18 I. ADMINISTRATIVE MOTIONS TO SEAL 19 As a preliminary matter, both sides have submitted administrative motions to seal 20 documents or portions of documents offered in support of their class certification briefing and 21 supplemental briefing. (Dkt. Nos. 98, 109, 120, 126, 128, 145, 167.) While the standard for 22 3 23 Plaintiffs filed an administrative motion to supplement evidence in the class certification record with documents showing communications between the Copyright Office and defendants 24 regarding sound recordings at issue. (Motion for Relief to File Supplemental Evidence, Dkt. No. 126-4; Declaration of Matthew A. Pearson, Dkt. 126-5, Exh. A and B.) The motion to supplement 25 is GRANTED. 26 Subsequent to the hearing, defendants produced a chart listing the recordings on their Websites and a cover letter from counsel. (Dkt. No 145-1, 145-2.) Plaintiffs objected to the 27 documents as argumentative and requested to strike them. (Dkt. No. 147.) To the extent that the letter or chart offer arguments which were not made in defendants’ papers regarding certain 28 performers’ concession of defendants’ ownership, the objection is SUSTAINED. Otherwise, the documents do no more than repeat defendants’ prior arguments and the objection is OVERRULED. 3 Case 4:17-cv-05343-YGR Document 170 Filed 04/10/20 Page 4 of 37 1 sealing documents in connection with class certification does not require “compelling reasons” as 2 set forth in Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010), the Court 3 nevertheless finds that the sealing requests here are overbroad and good cause has not been 4 established to seal certain documents to the extent requested. The Court has considered the basis 5 offered for sealing, as well as the significance to the Court’s decision of the portions sought to be 6 sealed, in determining which portions to cite or quote in its order herein. The motions to seal are 7 granted only insofar as they are not necessary to the Court’s analysis. 8 Therefore, to the extent the Court has quoted or recited the contents of any specific 9 portion of a document in this decision, the motion to seal that information is DENIED for lack of 10 good cause. The motions to seal (Dkt. Nos. 98, 109, 120, 126, 128, 145, 167) are otherwise 11 GRANTED for good cause shown.4 ACKGROUND a 12 II. B 13 Defendants acquired collections of audio and audiovisual recordings capturing the live 14 musical performances of more than 900 musical artists, spanning the decades from the 1950’s 15 through 1990’s. In 2002, defendants purchased the archives from the estate of deceased San 16 Francisco Bay Area rock concert promoter Bill Graham. (Weiner Decl. Exh. 2.) Graham had 17 amassed a large personal collection of thousands of recordings from the concerts he promoted in United States District Court Northern District of Californi Northern District of 18 the San Francisco Bay Area. (See Weiner Decl. Exh. 3.) Defendants contend that they made this 19 purchase with the understanding that they were acquiring ownership of the “master recordings”5 20 21 4 22 The Court notes that any party seeking to seal documents in connection with any later motion or trial must make an appropriate showing at that time. 23 5 The term “master recording” is one of many terms of art in the realm of music copyright. 24 As stated by the Ninth Circuit: 25 Sound recordings are [copyrightable] works that result from the fixation of a series of sounds. Fixation, as defined by the Copyright Office, occurs when a 26 complete series of sounds is first produced on a final master recording that is later reproduced in published copies.

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