During a hearing on Friday (Dec. 1) in the U.S. District Court for the Southern District of New York before Judge Alison J. Nathan, lawyers for Spotify and the putative class argued for final approval of the settlement, while two other rightsholders filed objections that the damages for each composition streamed were insufficient. Under the terms of the settlement, the writers of compositions that have been streamed between zero and 100 times would receive a minimum payment, while the rest of the money would be divided on a pro rata basis.

The basic issue is fairly straightforward: Spotify didn’t license mechanical rights for the compositions it streamed, even when it had rights to recordings of them. Although the company says that poor record keeping makes it very difficult to identify and find rightsholders, it also failed to issue the appropriate NOIs — Notices Of Intent — with the U.S. Copyright Office. In March 2016, Spotify agreed to a $30 million settlement with the National Music Publishers Association. Rightsholders can choose to opt out of the settlement and sue on their own, as several have already done.

Dealing with the issue is proving more complicated, especially since Spotify hasn’t said — and no one else knows — exactly how many compositions the company has infringed. That means lawyers for the putative class couldn’t say how much each class member would receive. “It’s hard to give a precise range,” said a lawyer for the putative class.

“How about an imprecise range?” Judge Nathan asked.

This, too, was difficult, apparently, although a lawyer for Spotify, Andrew Pincus of Mayer Brown, suggested a “ballpark” estimate that the company had infringed 300,000 songs. That would mean each rightsholder would get an average of about $100, although the actual numbers would vary widely. Statutory damages for willful copyright infringement range from $750 to $150,000.

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