(For Common Law Copyright Infringement Against All Named Defendants and Does 1-10)   (For Unfair Competition Against All Named Defendants and Does 1-10)   19.  Plaintiff’s Pre-1972 Recordings are the product of a significant investment of time,  effort, money and creative talent in creating, manufacturing, advertising, promoting, selling and  licensing its recordings.  In return, Plaintiff receives revenues, royalties and other compensation  from its ongoing licensing and exploitation of these works.   21.  CBS provides the Broadcast Service to members of the public in New York and  elsewhere, and broadcasts sound recordings through numerous radio stations in New York,  including, without limitation, the following:  WCBS – 101.1 FM, Classic Hits; WBMP – 92.3  FM, Top 40; and WWFS – 102.7 FM, Adult Contemporary.  Among the sound recordings that  CBS publicly performs, reproduces and distributes through the Broadcast Service are the  Recordings.   22.  The Internet Service is provided by CBS to members of the public in New York  and elsewhere, and delivers and streams (and licenses others to deliver and stream) music  through its stations’ websites, and through smart phones and tablets through its downloadable  Android and iOS Apps.  Among the sound recordings that CBS publicly performs, reproduces,  and distributes through the Internet Service are the Recordings.   23.  CBS understands that having a vast and complete range and array of music is  critical to the success of any music service, which is why Pre-1972 Recordings constitute a  significant part of the Music Service.  Through the Internet Service, CBS offers and advertises  live radio simulcast, which allows a user to select and listen to the live audio simulcast of  hundreds of radio stations throughout the United States, inclusive of radio stations owned by  CBS.  Many of these radio stations are dedicated to Pre-1972 Recordings.  CBS promotes these  stations in order to establish and increase its user base, popularity, and revenue.   25.  CBS has reproduced, performed, distributed and otherwise exploited via the Music  Service the Recordings without Plaintiff’s consent.  CBS knows that it does not have any license,  right, or authority to reproduce, perform, distribute or otherwise exploit via the Music Service  any Pre-1972 Recordings (including the Recordings).  CBS also knows which of the recordings  its reproduces, performs, distributes or otherwise exploits via the Music Service are Pre-1972  Recordings.   26.  CBS’s entire business is built around selling access to music and selling the music.   CBS delivers audio advertisements to its users in between songs and displays (through the  Internet Service, including mobile apps) visual ads while music is playing.   27.  Although a significant portion of CBS’s revenue earned in 2014 is attributable to  Pre-72 Recordings, and though CBS capitalizes on its customers’ desire to listen to these  recordings, CBS has not licensed from Plaintiff or paid to Plaintiff any royalties or other  compensation.     28.  By its conduct, CBS deprives Plaintiff and the Class of the revenues to which it and  membes of the Class are entitled.  CBS’s refusal to pay for its continued use of Pre-72  Recordings directly contravenes New York law and policy, which always have provided equal, if  not greater, rights to owners of sound recordings than the federal Copyright Act.   30.  This broad protection afforded to Pre-72 Recordings is consistent with the  recognition by New York courts of critical, important public policy interests in providing strong  state law protection for sound recordings.  These interests include ensuring that record  companies receive compensation from their substantial expenditure of effort, skill and money in  creating, marketing and exploiting recorded performances, as well as ensuring that the owners of  sound recordings possess adequate remedies against those who misappropriate and profit from  such performances.  New York’s protections for sound recordings thus are complete, providing  exclusive ownership and rights in Pre-72 Recordings that are not limited in any way, and that  include any conduct by which individuals or entities seek to unfairly compete and profit from the  skill and labor of Plaintiff by appropriating and exploiting Pre-72 Recordings for their own  benefit, including by unauthorized and unlicensed reproduction and public performance of these  recordings.   31.  The need for effective state law protection of Pre-72 Recordings is especially great  today.  Pre-72 Recordings comprise a significant and important share of the overall body of  existing musical recordings, and include some of the most popular and valued recordings in  history.    32.  To address the anticipated shift in music consumption habits and the rise of digital  radio services and, therefore, the need to provide federal protection for the performance of  copyrighted sound recordings, Congress passed the Digital Performance Rights in Sound  Recordings Act (“DPRA”), granting owners of post-72 copyrighted sound recordings the right to  “perform the copyrighted work publicly by means of a digital audio transmission.”  17 U.S.C.  § 106(6).     34.  Plaintiff brings this class action on its own behalf and on behalf of all other  similarly situated owners of Pre-1972 Recordings (the “Class” or “Class Members”) to put an  end to CBS’s wholesale infringement and misappropriation of their Pre-1972 Recordings and to  obtain damages, including punitive damages, and injunctive relief.  Simply stated, CBS has  disregarded Plaintiff and the Class’s exclusive ownership of their Pre-1972 Recordings in New  York, impaired their ability to sell, lawfully exploit, or otherwise control their Pre-1972  Recordings as permitted under New York law and misappropriated same for its own financial  gain.  CBS’s conduct is causing, and will continue to cause, enormous and irreparable harm to  Plaintiff and the Class unless compensatory and punitive damages are awarded against CBS and  it is enjoined and restrained from engaging in further infringement and misappropriation of the  Pre-1972 Recordings.  35.  Plaintiff brings this action, pursuant to Fed. R. Civ. P. 23, on behalf of itself  individually and on behalf of all other similarly situated owners of Pre-1972 recordings, which  recordings were reproduced, performed, distributed or otherwise exploited by CBS via the Music  Service in New York.  The proposed Class is comprised of and defined as follows:  All owners of sound recordings of musical performances that initially  were “fixed” (i.e., recorded) prior to February 15, 1972, which sound  recordings were reproduced, performed, distributed and/or otherwise  exploited by CBS via any form or method of delivery or storage (e.g.,  terrestrial broadcast, Internet, computer, server, etc.) in New York (the  “Class”).   37.  The Class for whose benefit this action is brought is so numerous and  geographically dispersed that joinder of all members of the Class is impracticable.  Plaintiff is  informed and believes that there are hundreds or thousands of members of the Class whose  identity can be readily ascertained from third party, music industry sources and from CBS’s  database files and records.  Therefore, the Class can be readily located and notified of this action.    38.  Plaintiff’s claims are typical of the claims of the members of the Class, and  Plaintiff’s interests are consistent with and not antagonistic to those of the Class it seeks to  represent.  Plaintiff and all members of the Class have sustained actual pecuniary loss and face  irreparable harm arising out of CBS’s continued course of conduct as complained of herein.   39.  Plaintiff does not have any interests that are adverse to, or which conflict with, the  interests of the absent members of the Class and it is able to fairly and adequately represent and  protect the interests of such Class.  Plaintiff has raised viable statutory, misappropriation, unfair  business practices, and conversion claims of the type reasonably expected to be raised by  members of the Class, and will vigorously pursue those claims.  Plaintiff is represented by  experienced, qualified and competent counsel, who are experienced in complex commercial  litigation, class action procedures, and the legal subject matter of this dispute.  Plaintiff and its  counsel are committed to prosecuting this action vigorously.   42.  Defendants have engaged in common law copyright infringement and unfair  competition, which has affected all members of the Class such that final and injunctive relief on  behalf of the Class as a whole is efficient and appropriate.  43.  Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 42,  above, as though set forth in full herein.   44.  The Pre-1972 Recordings are unique intellectual property subject to common law  copyright protection under the law of the State of New York.   45.  As the owners of valid common law copyrights or exclusive licensees in and to the  Pre-1972 Recordings, Plaintiff and the Class possess the exclusive rights to reproduce, perform,  distribute or otherwise exploit the Pre-1972 Recordings, and license, or refrain from licensing,  others to do so.   46.  Plaintiff and the Class have not authorized or licensed Defendants to reproduce,  perform, distribute or otherwise exploit the Pre-1972 Recordings in any manner.   47.  The distribution, reproduction, performance or other exploitation by Defendants of  unauthorized copies of the Pre-1972 Recordings, including, without limitation, those listed in  Schedule A, constitute infringement of Plaintiff and the Class’s common law copyrights in such  recordings and violation of their exclusive rights therein.  Plaintiff and the Class have invested  substantial time and money in the development of their Pre-1972 Recordings.   49.  As a direct and proximate consequence of Defendants’ copyright infringement of  the Pre-1972 Recordings, Plaintiff and the Class have been damaged in an amount that is not as  yet fully ascertained but which Plaintiff is informed and believes, and alleges thereon, exceeds  $5,000,000, according to proof.   50.  Plaintiff is informed and believes, and alleges thereon, that in engaging in the  conduct described above, Defendants acted with oppression, fraud and/or malice.  Defendants’s  conduct has been despicable and undertaken in conscious disregard of Plaintiff and the Class’s  rights.  Accordingly, Plaintiff and the Class are entitled to an award of punitive damages against  Defendants in an amount sufficient to punish and make an example of them, according to proof.   51.  Defendants’ conduct is causing, and unless enjoined and restrained by this Court,  will continue to cause, Plaintiff and the Class great and irreparable injury that cannot fully be  compensated or measured in money, and for which Plaintiff and the Class have no adequate  remedy at law.  Plaintiff and the Class are entitled to temporary, preliminary and permanent  injunctions, prohibiting further violation of Plaintiff and the Class’s rights in and exclusive  ownership of their Pre-1972 Recordings in New York.  52.  Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 42,  above, as though set forth herein.   53.  Plaintiff and the Class’s Pre-1972 Recordings are valuable assets to them.  Plaintiff  is engaged in the selling and licensing of all forms of distribution, reproduction, performance or  other exploitation of its Pre-1972 Recordings, including, without limitation, by selling physical  compact discs and digital Phonorecord deliveries and licensing the master use in audio-visual  recordings, such as movies and commercials.  From inception, such Pre-1972 Recordings have  generated for Plaintiff millions of dollars in revenues from such selling and licensing activities.     55.  Defendants have not paid anything to Plaintiff or the Class for distributing,  reproducing and performing the Pre-1972 Recordings.  Without expending any time, labor or  money of its own, Defendants have simply appropriated the commercial qualities, reputation and  salable properties of the Pre-1972 Recordings, including, without limitation those recordings  listed on Schedule A, by unfairly and directly competing with Plaintiff and the Class’s use, sale,  distribution and exploitation of the Pre-1972 Recordings.  In so doing, Defendants have  undermined Plaintiff and the Class’s substantial creative and financial investment for  Defendants’ own commercial benefit.   56.  Defendants have usurped for themselves the fruits of Plaintiff and the Class’s  financial and creative investments.  Defendants are profiting from the results of Plaintiff and the  Class’s  expenditures and skill without having to incur any expense or risk of its own in relation  to the Pre-1972 Recordings.  Furthermore, Defendants’ unauthorized use of the Pre-1972  Recordings is likely to cause confusion, mistake or deception as to the source, sponsorship,  affiliation or connection between Plaintiff and the Class, and Defendants.   58.  Defendants’ acts constitute a misappropriation of Plaintiff and the Class’s property  and rights in and to the Pre-1972 Recordings, and constitute misappropriation and unfair  competition under New York law.   59.  As a direct and proximate result of Defendants’ misappropriation and unfair  competition, Plaintiff and the Class are entitled to recover all proceeds and other compensation  received or to be received by Defendants from their misappropriation and unfair competition of  the Pre-1972 Recordings.  Plaintiff and the Class have been damaged, and Defendants have been  unjustly enriched, in an amount that is not as yet fully ascertained but which Plaintiff is informed  and believes, and alleges thereon, exceeds $5,000,000, according to proof at trial.  Such damages  and/or restitution and disgorgement should include a declaration by this Court that Defendants  are constructive trustees for the benefit of Plaintiff and the Class, and an order that Defendants  convey to Plaintiff and the Class the gross receipts received or to be received that are attributable  to Defendants misappropriation of the Pre-1972 Recordings.   60.  Plaintiff is informed and believes, and alleges thereon, that by engaging in the  conduct as described above, Defendants acted with oppression, fraud and/or malice.  Defendants’  conduct has been despicable and undertaken in conscious disregard of Plaintiff and the Class’s  rights.  Accordingly, Plaintiff and the Class are entitled to an award of punitive damages against  Defendants, and each of them, in an amount sufficient to punish and make an example of them  according to proof at trial.  