Freeplay Music, LLC v. Gibson Brands, Inc.
195 F. Supp. 3d 613
S.D.N.Y.2016Background
- Freeplay Music, a New York company, sued Gibson Brands for alleged unlicensed use of five copyrighted sound recordings/compositions posted on Freeplay’s website and incorporated into Gibson product videos on ~49 websites.
- Gibson moved under 28 U.S.C. § 1404(a) to transfer venue to the Northern District of California or the Middle District of Tennessee.
- Gibson argued key witnesses and operative facts are in Tennessee and California; Freeplay argued New York is its home forum, key ownership/assignment evidence and TuneSat (which detected the use) are in New York.
- The court treated the letters as a motion to transfer and conducted the two-step § 1404(a) inquiry: (1) whether suit could have been brought in the proposed districts and (2) whether transfer is appropriate based on private and public interest factors.
- Court found Gibson is subject to personal jurisdiction in both proposed districts (so venue could have been laid there) but after weighing the transfer factors denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Could suit be brought in proposed districts? | Freeplay did not contest Gibson’s amenability to jurisdiction in those districts; action need not be transferred | Gibson: resides/subject to jurisdiction in TN and N.D. Cal. | Yes — action could have been filed in TN and N.D. Cal. |
| Convenience of witnesses | Freeplay: key witnesses (ownership, assignment, TuneSat) are in NY | Gibson: key (party) witnesses and operative actors are in TN (and YouTube/R&D in N.D. Cal.) | Weighed against transfer — Freeplay identified a crucial non-party in NY; Gibson failed to identify non-party witnesses clearly |
| Locus of operative facts | Freeplay: injury and copyright ownership in NY; discovery by TuneSat in NY | Gibson: videos were created/streamed from TN and YouTube in N.D. Cal., so operative facts favor transfer | Locus favors transfer to Tennessee (operative facts largely occurred there), but not sufficient alone to compel transfer |
| Weight of plaintiff's choice of forum | Freeplay: New York is home forum and venue merits substantial deference | Gibson: chosen forum has weaker ties to operative facts so less deference warranted | Plaintiff’s choice entitled to substantial weight; this factor weighs against transfer |
Key Cases Cited
- AEC One Stop Grp., Inc. v. CD Listening Bar, Inc., 326 F. Supp. 2d 525 (S.D.N.Y.) (articulates threshold for § 1404 transfer and witness-identification burden)
- Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y.) (plaintiff’s forum choice presumptively entitled to substantial deference)
- Capitol Records, LLC v. VideoEgg, Inc., 611 F. Supp. 2d 349 (S.D.N.Y.) (analysis of witness convenience and operative facts in copyright cases)
- American Eagle Outfitters, Inc. v. Tala Bros. Corp., 457 F. Supp. 2d 474 (S.D.N.Y.) (weighing operative-facts location in transfer analysis)
- Columbia Pictures Industries, Inc. v. Fung, 447 F. Supp. 2d 306 (S.D.N.Y.) (standard for overcoming deference to plaintiff’s chosen forum)