COUNSEL CONCERNS: Federal Judge Scolds Both Sides' Lawyers In Labels/Spinrilla Copyright Dispute

A federal judge in Atlanta called out attorneys in a nationally watched copyright case for their role in an “an all-out, knock-down, drag-out fight between the '800-pound Gorilla' of the recording industry in one corner of the room vs. 'Spinrilla', the self-proclaimed '800-pound Gorilla of free hiphop mixtapes' in the other corner.”

In a 66-page order, Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia alternately scolded a team of attorneys representing the nation's top music recording labels and the Recording Industry Association of America (RIAA), and Atlanta-based Spinrilla's counsel for causing the case to degenerate into “all this sound and fury.” Atlantic Recording Corp. v. Spinrilla, 1:2017cv00431.

District Judge Totenberg also decried the “glut of issues slathered on the court by the parties” in a case that she said has become “essentially stalled as a result of the onslaught of motions.”

The district judge made clear in her order that she lost patience with the games of legal “hide the ball” and issued directives to lawyers for both sides to pony up information and documents that she indicated should have been provided to opposing counsel months ago.

In her order, Judge Totenberg blasted a team of Jenner & Block lawyers led by Washington, DC, partner Kenneth Doroshow for bad faith and making “clear misrepresentations to the Court.” The team, which filed suit on behalf of the recording industry, also includes counsel from Atlanta's Troutman Sanders.

The district judge also warned recording industry lawyers she was wary of accepting their assertions at face value. “Based on their admitted track record of making overstatements to the Court, the Court declines [the recording companies'] implied invitation to take their word for it,” she said.

The record labels include Atlantic, LaFace Records, Sony, UMG Recordings, Warner Bros., Capitol Records, Zomba, Elektra, Arista, Roc-a-Fella Records and Bad Boy Records.

But Judge Totenberg also chastised Atlanta attorney David Lilenfeld, who represents Spinrilla and its founding owner Jeffery Dylan Copeland, for “mudslinging” and filing a motion for summary judgment that Judge Totenberg agreed was “meager,” “baffling,” “utterly groundless” and lacking “any basis in law or fact.”

The district judge concluded by citing a 25-year-old ruling written by Senior Judge Peter Fay of the U.S. Court of Appeals for the Eleventh Circuit: “All attorneys, as 'officers of the court,' owe duties of complete candor and primary loyalty to the court before which they practice. An attorney's duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly. … We must return to the original principle that, as officers of the court, attorneys are servants of the law rather than servants of the highest bidder.”

The stakes are high. The recording labels claim Spinrilla has siphoned off hundreds of thousands of potentially paying customers by making copyrighted music available for free. Spinrilla is a free mobile app where users are allowed 75 free music streams and 75 downloads a day.

Spinrilla attracted the attention of the recording industry — in particular the labels with extensive hip-hop catalogs — when the availability of free music elevated the app to within the top 1% of the most popular iOS apps worldwide.

When the recording companies filed a $3 billion copyright infringement suit in February 2017, they claimed Spinrilla's Android app was downloaded and installed between five million and 10 million times and that it had become one of the most popular music apps available on the Google Play store, ranking higher than Apple Music, Amazon Music and SiriusXM Radio.

The record labels also claimed that more than 21,000 individual recordings of copyrighted material — in addition to copyrighted album cover art — had been downloaded when they filed the suit in 2017. That included musical works by stars such as Beyoncé, Kanye West, Michael Jackson and OutKast and top tracks from Billboard's R&B/hip-hop songs chart.

Spinrilla also became a go-to app for professional DJs such as DJ Miles, DJ Dirty Dollarz, DJ Fiestaboii, DJ 837 and DJ Trey Cash, who routinely uploaded popular mixtapes for free. Spinrilla makes its money from app advertisers, among them Amazon, REI, Uber, Hulu, Samsung, Flonase and Zyrtec, the lawsuit said.

Spinrilla countered that the recording giants had asked it to promote and distribute their music and that, for years, the company had worked with the major labels to remove any unauthorized music from the app that might constitute infringement.

Lilenfeld said that the recording labels have been trying to force Spinrilla to surrender its source code, and give them unlimited access to its raw data and server. In making that argument, Lilenfeld said, the recording industry attorneys used invalid work product claims to hide that they already had scraped much of the data off the Internet that they sought from Spinrilla. Judge Totenberg's order backs his assertion up.

The Daily Report contacted Troutman's James Lamberth and Doroshow at Jenner & Block by email and left messages for them at their law offices and was awaiting reply when this article was written.

*****

Robin McDonald is for The Daily Report, an Atlanta-based ALM sibling of Entertainment Law & Finance. She can be reached at [email protected].