BMG Rights Management (US), LLC v. JOYY Inc.

Court dismisses BMG Rights Management (US) LLC’s direct copyright infringement claim alleging that short-video creation app Likee exploits artists’ music without permission, but allows contributory infringement claim. 

Plaintiff BMG Rights Management (US) LLC, a music publisher and record label, sued defendants Bigo Technology Limited and Joyy Inc., technology companies that own and operate Likee, a social media platform based on user-generated short videos, alleging that defendants infringed plaintiff’s copyrights by promoting videos that incorporate unlicensed, copyrighted music. While defendant Joyy Inc. failed to appear, defendant Bigo Technology moved to dismiss plaintiff’s fourth amended complaint, arguing that plaintiff failed to state claims for copyright infringement and that plaintiff’s claims were barred by the safe harbor provision of the Digital Millennium Copyright Act (DMCA). 

The court found that plaintiff’s direct copyright infringement claims failed because “[p]laintiff has again failed to establish the necessary causal nexus between defendants’ conduct and its users’ illegal copying of plaintiff’s copyrighted works.” The only control exercised by defendants was over the general operation of its website. Plaintiff failed to allege that defendants selected any of plaintiff’s copyrighted works for upload, download, transmission or storage, and found that the limited guidance that defendants provide on how to upload music, as well as defendants’ copying those songs onto the platform at the direction of its users, does not constitute the kind of intervening act giving rise to volitional conduct. Rather, “direct liability must be premised on conduct that can reasonably be described as the direct cause of the infringement.” The court similarly held that plaintiff failed to establish that defendants instigated any copying, storage or distribution of copyrighted materials by advising creators “that ‘better music’ will help them go viral,” because plaintiff failed to make any connection between the alleged “better music” and plaintiff’s copyrighted works. The court dismissed the direct infringement claims against defendants with prejudice and denied leave to amend on futility grounds.

The court denied Bigo Technology’s motion to dismiss as to plaintiff’s contributory copyright infringement claim, which required evidence of specific acts of defendant that intentionally encouraged infringement. The court found plaintiff’s allegations that Bigo Technology investigated use of plaintiff’s works on the Likee application and had actual knowledge of specific instances of infringement of the works supported a reasonable inference of Bigo Technology’s specific knowledge of the infringement. The court also held that defendants’ operation of a service that allows for the posting of infringing material satisfies the requirement for substantial involvement sufficient to state a claim for contributory infringement. 

The court next turned to Bigo Technology’s argument that it is shielded from liability under the DMCA’s safe harbor provision, which protects internet service providers from liability for copyright infringement by their users. The court held that whether Bigo Technology meets the requirements of the safe harbor protection is a factual question that cannot be resolved on a motion to dismiss but that the argument could be renewed in a summary judgment motion. 

Summary prepared by Melanie Howard and David Forrest