UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF TEXAS 

MARSHALL DIVISION 

WARNER RECORDS, INC., et al., 

Plaintiffs, 

v. 

ALTICE USA, INC., et al., 

Defendants. 

Case No. 2:23-cv-00576-JRG-RSP 

DEFENDANTS’ REPLY IN SUPPORT OF 

MOTION TO COMPEL PLAINTIFFS’ INTERROGATORY RESPONSES 

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INTRODUCTION 

Altice hereby files this reply brief pursuant to the Court’s order permitting Plaintiffs an 

additional week to respond to Altice’s motions to compel (Dkt. 85 & 86) in order to assess the 

Fifth Circuit’s intervening decision, UMG Recordings, Inc. v. Grande Commc’ns Networks, 

L.L.C., No. 23-50162, 2024 WL 4449684 (5th Cir. Oct. 9, 2024) (“Grande”), and Altice a reply 

brief. Dkt. 92. Altice disagrees in many respects with Plaintiffs’ response, including its 

characterizations of the allegations, the law, and the state of discovery, though, consistent with the 

Court’s order, limits this submission to “address any new arguments or issues raised by the Grande

decision.” Id. 

ARGUMENT 

Plaintiffs raised the Fifth Circuit’s Grande decision in their response with respect to one 

request in Altice’s motion—Interrogatory No. 4, which seeks the following: 

Identify which Copyright Works asserted by You were first issued 

or released together on or as parts of albums or compilations, 

including for each the (i) name of the corresponding album or 

compilation and (ii) the date the album or compilation was first 

issued or released. 

See Dkt. 86-1. 

 As set forth below, the Fifth Circuit’s decision in Grande obviates the need for all of the 

information sought by Interrogatory No. 4, so Altice has proposed to Plaintiffs a compromise 

that significantly narrows the request and promotes judicial efficiency by focusing the issues for 

resolution on the merits. 

In Grande, the Fifth Circuit unequivocally held that individual sound recordings 

registered together on the same U.S. Copyright Office registration certificate (i.e., sharing the 

same registration number, as set forth in Plaintiffs’ list of works-in-suit attached to the 

Complaint) or as works made-for-hire (i.e., designated as such on the registration certificate) are 

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parts of compilations and therefore not entitled to separate awards of statutory damages. See 

Grande, 2024 WL 4449684, at *18-19. Rather, Plaintiffs are entitled to only one award per 

compilation (i.e., one award per unique registration number). Id. The Fifth Circuit properly 

applied the Copyright Act’s plain language. Id. at *19 (“The statute unambiguously instructs that 

a compilation is eligible for only one statutory damage award, whether or not its constituent 

works are separately copyrightable. Thus, the district court erred in holding that each individual 

song in a compilation was eligible for a statutory damage award.”). 

The Fifth Circuit’s ruling is consistent with how Altice argued in its motion that the law 

should be applied in this case. Dkt. 86 at 3-5. However, as Altice also noted in its motion as the 

basis for this interrogatory, certain courts (including at Plaintiffs’ urging) have departed from this 

plain reading, and applied various tests that result in each part of a compilation (i.e., each sound 

recording registered with other sound recordings on a single registration certificate) being 

entitled to separate awards of statutory damages. Id. at 4. Certain of these other courts have 

looked to how the work was first released or otherwise exploited. Id. (“The clear language of the 

Copyright Act and court decisions notwithstanding, Plaintiffs and other rights holders have taken 

the position in other litigations that individual tracks on an album should be entitled to separate 

awards, citing to various decisions in which certain courts have found the nature in which the 

plaintiffs released and/or exploited the works to be relevant to this determination.”). Indeed, as 

Plaintiffs make clear, they are seeking en banc review in order to have the Fifth Circuit adopt 

such a rule. Dkt. 93 at 2, n.1. 

In light of the Fifth Circuit’s clear ruling in Grande, Altice has proposed to Plaintiffs the 

following compromise to resolve Interrogatory No. 4: 

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Altice would agree to withdraw Interrogatory No. 4 without prejudice if Plaintiffs agree 

to stipulate to which of their pre-1972 sound recordings-in-suit were issued as parts of albums 

and are therefore considered parts of compilations for purposes of Section 504(c)(1) of the 

Copyright Act. See Ex. A (proposed stipulation).1

Based on Plaintiffs’ Complaint, out of the 6,706 sound recordings-in-suit, only 175 were 

issued prior to 1972. See Dkt. 1-1 (the works in the column titled “Copyright Registration No.” 

that state “Pre-1972 Sound Recording”). Sound recordings issued prior to 1972 could not be 

registered with the U.S. Copyright Office and, accordingly, do not have copyright registration 

numbers. See 17 U.S.C. § 301(c) (“[N]o sound recording fixed before February 15, 1972, shall 

be subject to copyright under this title.”).2

 For these 175 recordings, Altice thus cannot use the 

fact that recordings were registered together on the same U.S. Copyright Office certificate or as 

works “made for hire” to establish that they are parts of compilations, as instructed by the Fifth 

Circuit’s Grande opinion. See Grande, 2024 WL 4449684, at *18 (“The works’ certificates of 

registration—which are ‘prima facie evidence ... of the facts stated’ therein, 17 U.S.C. § 

410(c)—bear numerous hallmarks of compilations.”). 

To the extent that these pre-1972 recordings were released as parts of compilations (i.e., 

albums), which appears to be the case based on Altice’s analysis as reflected in its proposed 

stipulation (see Ex. A), the Fifth Circuit’s Grande holding would equally apply notwithstanding 

1

 Altice’s offer to withdraw this request in exchange for the proposed stipulation is without 

prejudice, should the law change, either upon a Fifth Circuit en banc review or by the United 

States Supreme Court. 

2

 In 2018, Congress enacted the Music Modernization Act that provides in part that pre-1972 sound 

recordings are entitled to statutory damages, so long as the copyright owner complied with certain 

requirements. Altice takes no position on whether Plaintiffs have complied with such requirements 

and are otherwise entitled to statutory damages for these works. That is an issue that will be 

addressed in connection with merits proceedings. 

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the lack of U.S. Copyright Office registrations. This is because, where “the record evidence 

indicates ... works in suit are compilations (albums) comprising individual works (songs)[,] [t]he 

statute unambiguously instructs that a compilation is eligible for only one statutory damage 

award ... .” Grande, 2024 WL 4449684, at *19. 

Altice’s proposed compromise substantially narrows the scope of the information that it 

seeks with Interrogatory No. 4, requiring Plaintiffs merely to confirm which of the 175 pre-1972 

works were issued on which albums identified in Altice’s proposed stipulation.3

 This is 

information that Altice otherwise would seek through written discovery or deposition testimony, 

so addressing this now through a factual stipulation promotes efficiency by narrowing issues for 

resolution on the merits. 

CONCLUSION 

Based on the foregoing, Altice respectfully requests that the Court grant the relief set forth 

above. 

Dated: October 25, 2024 Respectfully submitted, 

 

 By: /s/ Michael S. Elkin 

Claire A. Henry 

State Bar No.: 24053063 

MILLER FAIR HENRY PLLC 

1507 Bill Owens Parkway 

Longview, TX 75604 

(903) 757-6400 

claire@millerfairhenry.com

Thomas M. Melsheimer 

State Bar No.: 13922550 

WINSTON & STRAWN LLP 

2121 N. Pearl Street, Suite 900 

Michael S. Elkin* 

Krishnan Padmanabhan* 

Sean R. Anderson* 

WINSTON & STRAWN LLP 

200 Park Avenue 

New York, NY 10166 

(212) 294-6700 

melkin@winston.com 

Jennifer A. Golinveaux* 

WINSTON & STRAWN LLP 

101 California Street, 35th Floor 

San Francisco, CA 9411 

3

 To the extent that Plaintiffs amend the list of works-in-suit, as they have reserved the right to 

do, including under the Docket Control Order (Dkt. 45), Altice would request that Plaintiffs 

supplement the stipulation to account for any additional or different pre-1972 sound recordings. 

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Dallas, TX 75201 

(314) 453-6500 

Sean H. Suber* 

WINSTON & STRAWN LLP 

35 W. Wacker Dr. 

Chicago, IL 60601 

(312) 558-5600 

Clement S. Roberts* 

ORRICK HERRINGTON & SUTCLIFFE LLP 

405 Howard Street 

San Francisco, CA 94015 

(415) 773-5700 

(415) 591-1506 

Diana Leiden* 

WINSTON & STRAWN LLP 

333 South Grand Avenue, 38th Floor 

Los Angeles, CA 90071 

(213) 615-1700 

Christopher J. Cariello* 

ORRICK HERRINGTON & SUTCLIFFE LLP 

51 West 52nd Street 

New York, NY 10019 

(212) 506-5000 

Mark S. Puzella* 

David Hosp* 

Sheryl Garko* 

Laura Najemy* 

ORRICK HERRINGTON & SUTCLIFFE LLP 

222 Berkely Street, Suite 2000 

Boston, MA 02116 

(617) 880-1801 

Attorneys for Defendants Altice USA, Inc. and CSC Holdings, LLC 

*Pro Hac Vice 

 

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CERTIFICATE OF SERVICE 

I certify that on October 25, 2024 a true and correct copy of the foregoing was filed with 

the Court via CM/ECF, which will send a notice of electronic filing to the parties of record. 

/s/ Michael S. Elkin 

Michael S. Elkin 

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