Judge dismisses Epidemic Sound’s second copyright lawsuit against Meta – but leaves the door open to amend

A federal judge in California has dismissed Epidemic Sound‘s second copyright infringement lawsuit against Meta.

US District Judge Jacqueline Scott Corley granted Meta’s motion to dismiss on Friday (July 10), finding that Epidemic had not plausibly alleged that any of the 1,000 works it asserted were being infringed on the company’s platforms.

The order, which you can read in full here, dismisses all six of Epidemic’s claims, covering direct, inducement and contributory infringement of both sound recordings and musical compositions.

Epidemic, a Stockholm-headquartered production music company whose catalog spans more than 50,000 tracks, sued Meta in the US District Court for the Northern District of California in December.

The complaint alleged that Meta was making Epidemic’s music available through its Audio Library, a curated collection of tracks, and through tools called Original Audio and Reels Remix on Facebook and Instagram.

Judge Corley found that Epidemic had not pointed to a single specific work on Meta’s platforms that was substantially similar to any of its tracks.

“Because Epidemic has not plausibly alleged any of its 1,000 asserted works are substantially similar to any allegedly infringing work, Epidemic fails to state a claim for direct infringement by Meta or a third party,” she wrote.

Under Ninth Circuit pleading rules, the judge noted, a copyright plaintiff must identify each allegedly infringing work and show how it is substantially similar to the protected work.

Corley found that Epidemic’s complaint contained “only conclusory allegations” that its works appeared in the Audio Library and were reproduced through Original Audio.

Epidemic‘s allegations were “insufficient to create a plausible inference Meta’s platforms contain exact copies or wholesale reproductions of each of its 1,000 Works,” the judge wrote.

“Because Epidemic has not plausibly alleged any of its 1,000 asserted works are substantially similar to any allegedly infringing work, Epidemic fails to state a claim for direct infringement by Meta or a third party.”

US District Judge Jacqueline Scott Corley

Judge Corley dismissed Epidemic’s inducement and contributory infringement claims for a related reason, noting that “secondary liability for copyright infringement does not exist in the absence of direct infringement by a third party.”

Because Epidemic had not plausibly alleged any direct infringement, those secondary claims failed too, the ruling said.

Corley granted Epidemic leave to amend its complaint “to the extent it can plausibly allege Meta’s infringing works are substantially similar to each of its copyright protected works.”

Epidemic’s amended complaint is due on Friday August 14, and the company may not add new claims or assert additional works without the court’s permission.

An initial case management conference is scheduled for September 23.

The dismissed complaint is the second that Epidemic has filed against Meta.

Epidemic’s first lawsuit, filed in July 2022, sought at least $142 million in damages and remains active before Judge Corley in the same court.

In the second suit, Epidemic sought statutory damages of up to $150,000 for each of the 1,000 works, plus a permanent injunction, according to the complaint.

Each of those works was registered after the 2022 suit was filed, the complaint said.

Meta, represented by the law firm Latham & Watkins, argued in its April motion that the case was “yet another improper attempt by Epidemic to stockpile and leverage nebulous copyright infringement claims as a business model.”

The company said that “despite having access to Rights Manager for almost a decade, Epidemic fails to identify a single allegedly infringing use of any of the 1,000 asserted tracks.”

Meta had also argued that the contributory claims should fail under the US Supreme Court‘s March ruling in Cox Communications, Inc. v. Sony Music Entertainment, though the court did not reach that argument.

In that decision, the Supreme Court held that a service provider is contributorily liable for a user’s infringement only if it induced the infringement or provided a service tailored to infringement.Music Business Worldwide