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Kroger asks a federal judge to toss Sony Music’s broad-ranging infringement case, claiming that the Cox v. Sony case ruling set the precedent that businesses can’t be liable for influencer posts.
Kroger and 17 affiliates have asked a California federal judge to throw out Sony Music’s broad-ranging infringement suit over music used in social media ads. The companies state six primary reasons why the case shouldn’t be allowed to proceed, including jurisdiction and procedural flaws. It also cites the Supreme Court’s Cox v. Sony ruling, arguing that it sets precedent that companies cannot be vicariously liable for posts by independent influencers.
Sony Music and nine affiliated labels sued Kroger and its affiliates back in August, claiming at least 392 unauthorized uses of their recordings in social media posts made by Kroger’s affiliate brands and paid influencers.
But Kroger and 17 affiliate companies name “six independent reasons” why the case should be dismissed, or that Sony should at least be made to provide a more definitive statement. Eight of the defendants argue that they should not be subject to personal jurisdiction in California, including Roundy’s, Harris Teeter, and Murray’s Cheese Bar.
Sony’s initial complaint alleged that the companies’ products are available to delivery to California consumers through Kroger partnerships, including InstaCart and DoorDash. But Kroger counters that “same-day and next-day delivery of groceries from a store in Milwaukee or Chicago to Los Angeles would be highly unlikely.”
Further, Kroger claims that the exhibit of the 392 songs in question fails to identify which plaintiff owns each recording. Kroger estimates that 110 of those cite no sound recording registration, including 59 marked as pre-1972 recordings, five that list registrations as pending, and 21 that invoke the Berne Convention.
Kroger’s motion also cites the Supreme Court’s ruling in Cox v. Sony over contributory infringement, which found unanimously that Cox Communications was not liable for its subscribers’ piracy. The motion states that while the complaint “alleges that Kroger could oversee advertising, it does not allege that Kroger did anything to bring about infringement.”
Kroger further argues that Sony’s claims tied to a 2020 holiday campaign license that allegedly included The Lovin’ Spoonful’s “Do You Believe in Magic” are time-barred under the Copyright Act’s three-year statute of limitations.
A hearing on the motion is scheduled for January 14.
