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Nashville Federal Court Decides Spotify CEO Daniel Ek Must Sit for Deposition in Copyright Licensing Dispute Over Streaming of Eminem Songs

The U.S. District Court for the Middle District of Tennessee, Nashville Division, denied a bid by the streaming service Spotify to put off a deposition of Spotify President, CEO and co-founder Daniel Ek until a damages segment of the litigation. Eight Mile Style LLC v. Spotify USA Inc., 3:19-cv-0736. Music publisher Eight Mile Style alleged that Stockholm, Sweden-based Spotify "streamed recordings of [rap artist Eminem's] Eight Mile Compositions as if it had obtained [required] compulsory mechanical licenses [for the songs] — and indeed fostered the impression that it had obtained those licenses — when, in fact, it had missed its chance to timely complete the required steps and therefore needed to obtain a negotiated license to render its ongoing actions non-infringing." A federal magistrate decided as to management of the case that Ek must sit for a deposition, though restricted the session to Ek being deposed remotely, for a maximum of three hours. In considering Spotify's motion for review of the magistrate's order, Middle District Judge Aleta A. Trauger noted: "Spotify argues that, even if Ek is able to testify about whether Spotify took an inappropriately loose approach to licensing requirements in order to quickly establish its foothold in the streaming market, that testimony would be relevant, if at all, only to whether the plaintiffs are entitled to enhanced damages based on Spotify's willfulness." The Music Modernization Act (MMA), which allows digital music providers to obtain a one-stop blanket license for streaming songs, limits a plaintiff's recovery to royalties owed in infringement lawsuits brought Jan. 1, 2018, or after, but before a designated "license availability date." District Judge Trauger found: "If [Eight Mile High's] case had actually been strictly bifurcated between liability and damages, then Spotify's objection [to the timing of Ek's deposition] might be persuasive. The MMA provision to which Ek's testimony appears most likely to be relevant is not an outright safe harbor from liability, but rather a limitation on remedies, meaning that, under a conventional two-phase inquiry, evidence bearing on the applicability of that provision would be relevant only to the second phase. But Spotify concedes in its briefing that the first phase of discovery encompasses both 'liability and MMA compliance.' The Magistrate Judge's Order was consistent with that division of subject matter and therefore was not contrary to the law."