Damages Inquiry in Warner Music UK Limited v TuneIn Inc: Disclosure Disputes and Legal Principles Analyzed

Citation: [2023] EWHC 2875 (Ch)
Judgment on

Introduction

The case of Warner Music UK Limited & Anor v Tunein Inc [2023] EWHC 2875 (Ch) revolves around issues of copyright infringement and the subsequent inquiry into damages. Deputy Master Raeburn examined disputes over disclosure, particularly concerning the disclosure of comparable licences and their relevance to the determination of damages for copyright infringement in the context of internet radio service operations in the UK. This article analyses the legal principles applied in this case and how they were used to settle disclosure disputes within the parameters of the existing legal framework.

Key Facts

Warner Music UK Limited and Sony Music Entertainment UK Limited, representing various corporate group members, claimed copyright infringement against TuneIn Inc, an American company operating an internet radio service. TuneIn’s service aggregates radio stations worldwide, allowing UK users access to unlicensed music stations, resulting in infringing acts. The liability had been established in favor of the claimants with TuneIn’s appeals having been dismissed. The case in question pertains to the second Case Management Conference (CMC) focused on disputes regarding the inquiry into damages, particularly the disclosure of documents.

Several legal principles and practice directions formed the basis for the court’s decision-making:

  1. Control Over Documents:

    • The concept of “control” of documents is pivotal in determining the disclosure obligations. The court opted not to predetermine the extent of the Claimants’ control over Phonographic Performance Limited (PPL) documents, stating it premature to decide before parties conducted their searches (referring to Ardila Investments NV v ENRC NV [2015]).

  2. Model C Requests:

    • Under Practice Direction 57AD, Model C requests for disclosure must be “limited in number, focused in scope and concise.” The requests should not be used in a tactical or oppressive way and should clearly outline the specific documents or narrow classes of documents sought for disclosure.

  3. Reasonable and Proportionate Disclosure:

    • Disclosure is bound by the principles of reasonability and proportionality, as emphasized in UTB LLC v Sheffield United Limited [2019] and McParland & Partners Limited v Whitehead [2020]. This includes considering factors like the importance of the case, the likelihood of documents’ probative value, the number of documents involved, and the necessity of expeditious, fair, and cost-effective case management.

  4. Comparable Licenses:

    • For assessing damages in copyright infringement, comparable licenses serve as an important metric. The case relied on precedents, such as Smith Kline & French Laboratories Ltd’s (Cimetidine) Patents [1990] and Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd [2023], which stress the significance of comparable licenses in determining reasonable royalties. Yet, the comparables should be specific and relevant to the case.

  5. Judicial Estimation of Damages:

    • The estimation of damages is not limited to assessing a given set of terms but also involves judicial discretion to determine a fair conclusion potentially different from the parties’ proposals, as noted in Unwired Planet International Ltd v Huawei Technologies (UK) Ltd [2017].

Outcomes

Deputy Master Raeburn provided directives for both parties to follow regarding disclosure:

  • TuneIn’s disclosure under Issue 1 would be limited to data extracted from specific databases, including non-UK specific versions of identified databases.
  • The Claimants were directed to supply a historic list of licensed stations.
  • Both parties were ordered to cooperate to identify the PPL rates for webcasters and simulcasters for each calendar year from 1 November 2011 onwards.
  • The requests for disclosure under Issues 2A and 2B were deemed too wide, requiring further refinement by both parties to identify specific requests that are reasonable and proportionate for the purposes of the Inquiry.

Conclusion

The Warner Music UK Limited & Anor v Tunein Inc case is a definitive illustration of how the courts navigate the complexities of disclosure in the digital age, particularly concerning intellectual property infringement and the subsequent valuation of damages. The legal principles established and clarified within the UK’s judicial precedents provide a structured framework in which parties can assess comparable licenses’ relevance and target disclosure requests effectively. The outcome reaffirms the judiciary’s commitment to conducting cases in a manner that is both fair and economical, ensuring a balance between comprehensive disclosure and the avoidance of disproportionate burdens on the parties involved.