Noel Redding Estate Ltd & Anor v Sony Music Entertainment UK Limited
[2024] EWHC 561 (Ch)
Warner Music UK Limited & Anor v Tunein Inc
17 November 2023
[2023] EWHC 2875 (Ch)
High Court
Two big music companies sued TuneIn for playing their music without permission. The judge said TuneIn has to share some information about how it works, but not everything TuneIn asked for. The judge wants both sides to agree on what information is really needed to figure out how much TuneIn owes in damages.
Key Facts
- •Copyright infringement claim by Warner Music UK and Sony Music Entertainment against TuneIn.
- •Liability established, now damages inquiry.
- •Claimants represent 137 corporate group members, owning/licensing hundreds of thousands of sound recordings.
- •TuneIn operates an internet radio service aggregating radio stations and podcasts.
- •Disputes concern disclosure of comparable licences relevant to damages assessment.
- •Claimants propose using PPL rates for webcasters as a basis for damages.
- •TuneIn suggests a percentage of its revenue or a per-stream rate.
- •Disputes about the extent of Claimants' 'control' over PPL documents.
- •Disputes regarding the scope of searches for disclosure of relevant data and documents.
Legal Principles
Modern principles governing extended disclosure in Practice Direction 57AD.
UTB LLC v Sheffield United Limited [2019] EWHC 914 (Ch) at [75]-[79]; McParland & Partners Limited v Whitehead [2020] EWHC 298 (Ch) at [3]-[4], [44]-[54] and [58].
Test for 'control' of documents (access and practical control).
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173; Ardila Investments NV v ENRC NV [2015] EWHC 3761 (Comm) at [10]
Importance of comparable licences in damages assessment.
Smith Kline & French Laboratories Ltd’s (Cimetidine) Patents [1990] RPC 203, 236; Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd [2023] EWCA Civ 11 at [16(viii)]
Need for pleaded comparables before disclosure can be ordered.
Interdigital Technology Corp v Lenovo Group Ltd [2023] EWHC 1583 (Pat) at [299], [608]; Big Bus Co Ltd v Ticketogo Ltd [2015] EWHC 1094 (Pat); Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd [2020] EWHC 3701 (Pat) at [21]-[22]
Disclosure must be reasonable and proportionate, considering factors in PD 57AD para 6.4.
Practice Direction 57AD
Outcomes
Premature to determine Claimants' control over PPL documents at this stage.
Making a determination before searches and disclosure certificates would prejudge the issue.
TuneIn's proposed constraints on searches under Issue 1 are acceptable, but should not be limited to UK listening activity.
Infringement occurred by making works available, not just by listening in the UK. Open searches are disproportionate.
Claimants' disclosure under Issue 1 limited to a list of stations licensed for reception in the UK.
TuneIn's broader requests are disproportionate and not sufficiently focused.
Issue 2 (PPL rates) is necessary, reasonable, and proportionate; Model B disclosure appropriate.
Both parties rely on PPL rates; TuneIn's attempt to link this to other issues is rejected.
Issues 2A and 2B (comparable licences) are key issues, but TuneIn's requests are too broad.
While disclosure is appropriate, the requests lack focus and are disproportionate under Model C. Parties must refine requests.
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