UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
 
FRANK MUSIC CORP., on behalf of 
itself and all others similarly 
situated, 
 
-against- 
 
COMPUSERVE INCORPORATED, 
 
Defendant. 
 
 
Civil Action No. 93 Civ. 8153 (JFK) 
 
COMPLAINT 
 
CLASS-ACTION 
 
 
Plaintiff, by its attorneys, Silverman & Shulman, P.C., 
complaining of the defendant herein, alleges as follows:  
 
Jurisdictional Allegations 
 
1.  This action arises under the Copyright Act of the United 
States (17 U.S.C. Sec. 101, et seq.).  This Court has exclusive 
jurisdiction over this action under Section 1338(a) of the 
Judicial Code [28 U.S.C. Section 1338(a).] Venue is proper 
under Section 1400(a) of the Judicial Code [28 U.S.C. Section 
1400(a).]  
 
Class Action Allegations 
 
2.  Plaintiff brings this action pursuant to Rule 23(a), (b)(2) and 
(3) of the Federal Rules of Civil Procedure, on behalf of itself 
and all other copyright owners similarly situated (the "Class"), 
who are all music publishers-principals of the The Harry Fox 
Agency, Inc., their common licensing and collecting agent, and 
whose copyrighted musical compositions are the subject of 
those unauthorized uses by defendant hereinafter alleged, in 
violation and infringement of the exclusive rights granted to 
copyright owners of musical compositions pursuant to Section 
106 of the U.S. Copyright Act [17 U.S.C. Section 106.]  
 
3.  The class numbers in excess of one hundred forty (140), and 
it is therefore impracticable to bring them all before the Court. 
The questions of law and fact presented herein regarding 
defendant's violation and infringement of rights under the 
Copyright Act and its liabilities therefor are common to the 
entire Class. The claims of plaintiff herein are typical of the 
claims of the Class. Plaintiff will fairly and adequately protect 
the interests of the Class in that plaintiff has retained competent 
counsel experienced in litigation of this nature, has the 
financial support of the Harry Fox Agency, Inc.*, and is 
seeking injunctive relief based upon defendant's violation of 
the rights of each member of the Class and statutory damages 
determinable for each member of the Class. A class action is 
superior to individual litigation because it permits a resolution 
of all claims in one action; there is no pending litigation of any 
of such claims. Any notices required to be given to the Class of 
any proceeding in this action can be given to The Harry Fox 
Agency, Inc., the Class' common agent, who shall undertake to 
transmit such notices to each member thereof.  
 
The Parties 
 
4.  Plaintiff FRANK MUSIC CORP. (hereinafter "Frank") is a 
New York corporation with its principal office at 39 West 54th 
Street, New York, New York 10019.  
 
5.  Frank and the members of the Class were and continue to be 
copyright owners engaged in the business of publishing, 
licensing and otherwise marketing and exploiting musical 
compositions.  
 
6.  Defendant (hereinafter "Compuserve") is an Ohio 
corporation with an office for the conduct of its business at 120 
Broadway in the City, County and State of New York, and 
accordingly, can be found in this judicial district.  
 
7.  Compuserve, a wholly-owned subsidiary of H & R Block 
Group, Inc., upon information and belief, has offices and 
subsidiaries of its own in over 16 states and in seven foreign 
countries, employing more than 1600 persons and has annual 
sales in excess of two hundred eighty million ($280,000,000.) 
dollars. Compuserve, amongst other things, is engaged in the 
business of maintaining a computer-based on-line information 
and electronic communication service which involves 
Compuserve's maintenance of a large mainframe computer and 
the database contained therein consisting of literary, graphic 
and musical material. Such mainframe computer and database 
are hereinafter sometimes referred to as the "Bulletin Board." 
Compuserve grants access to its Bulletin Board to it paid 
subscribers, who via a device known as a "modem" and the use 
of their own personal computers: a) put into the Bulletin Board, 
for storage in the Bulletin Board's database, the literary, 
graphic and musical material chosen by such subscribers (a 
process known as "uploading"), and b) can select and take from 
the Bulletin Board the literary, graphic and musical material 
stored in the Bulletin Board's database (a process known as 
"downloading".) Each subscriber pays Compuserve a monthly 
fee for such access and also pays Compuserve, in the form of 
"log on" charges, for the time that it is connected to 
Compuserve's Bulletin Board. The material contained in this 
Bulletin Board's database is identified in tables of contents 
which are known as "menus." The menus list, amongst other 
things, the various on-line literary, graphic and musical 
material and other communication services which are 
accessible to Compuserve's subscribers.  
 
8.  Compuserve provides the aforesaid access (to upload to and 
download from its Bulletin Board) to subscribers who reside 
within this judicial district and elsewhere.  
 
Allegations of Copyright Infringement 
 
9.  At all times relevant herein, Frank was and continues to be 
the sole copyright owner of the musical composition entitled 
"UNCHAINED MELODY" (hereinafter the "Frank Work"):  
 
A. which was written and composed by Alex North and Hy 
Zarat, both citizens of the United States (the "authors");  
 
B. which was registered for copyright (under its former title 
"ARE YOU STILL MINE") with the U.S. Copyright Office as 
an unpublished work on January 10, 1955 and for which the 
Registor of Copyright issued registration certificate No. 
EU382542 to and in the name of Frank;  
 
C. which was registered for copyright (under its present title 
"UNCHAINED MELODY") with the U.S. Copyright Office 
after publication on February 10, 1955 and for which the 
Register of Copyrights issued registration certificate NO. EP 
87381 to and in the name of Frank;  
 
D. which copyrights were both duly renewed by the authors on 
January 6, 1983 and for which the Register of Copyrights 
issued renewal certificates Nos. RE 153-688 and RE 151-142, 
respectively, and  
 
E. which renewal copyrights are owned by Frank pursuant to 
prior written transfers from the authors dated, respectively, 
December 29, 1982 (from Alex North) and May 24, 1978 (from 
Hy Zarat), which written were recorded in the U.S. Copyright 
Office, respectively, in Volume 1954 at page 396 and in 
Volume 1666 at page 36.  
 
10. Frank has duly complied with all pertinent provisions of the 
Copyright Act and all laws governing copyright with respect to 
the Frank Work.  
 
11. Members of the Class are, and at all times relevant herein 
were, the copyright owners of certain musical compositions 
(the "Class Compositions"), which class compositions:  
 
A. were all identified in the Bulletin Board's menus and 
number in excess of five hundred fifty (550);  
 
B. were, together with the Frank Work (as more particularly 
hereinafter alleged), the subject of recordings which were 
uploaded and downloaded to and from Compuserve's Bulletin 
Board by Compuserve's subscribers, and  
 
C. were the subject of copyright registrations in the U.S. 
Copyright Office with the Register of Copyrights having issued 
appropriate registration certificates therefor, and if appropriate 
and required by the copyright act, the subject of duly renewed 
copyrights.  
 
12. The members of the Class have duly complied with all 
pertinent provisions of the Copyright Act and all laws 
governing copyright with respect to the Class Compositions.  
 
13. Compuserve, in providing access to its Bulletin Board (in 
particular its "MIDI **/Music Forum" and various "libraries" 
therein) by its paying subscribers, is , and at all relevant times 
herein was, engaged in the following activities with respect to 
the Frank Work and the Class Compositions:  
 
A. permitting, facilitating and participating in the recording of 
performances of the Frank Work and the Class Compositions 
into, and storing such recordings in, Compuserve's computer 
database by permitting and enabling its paying subscribers to 
upload such performances thereto,  
 
B. maintaining a storage of unauthorized recordings of The 
Frank Work and Class Compositions (uploaded by its 
subscribers) in and as apart of Compuserve's computer 
database, and  
 
C. permitting, facilitating and participating in the recording 
(i.e. re-recording) of the performances of The Frank Work and 
the Class Compositions (therefore stored in its computer 
database) by permitting and enabling its paying subscribers to 
download such recorded performances therefrom.  
 
14. At all times relevant herein Compuserve had, and continues 
to have, control over the nature and content of materials stored 
in its Bulletin Board and downloaded therefrom.  
 
15. At all times relevant herein Compuserve had actual 
knowledge of, or in the exercise of reasonable diligence could 
have determined, the nature and content of materials stored in 
its Bulletin Board and downloaded therefrom.  
 
16. At all times relevant herein Compuserve had actual notice, 
or in the exercise of reasonable diligence could have 
determined, the recordings of the Frank Work and the Class 
Compositions were uploaded (recorded) to, stored in, and 
downloaded (re-recorded) from its computer database.  
 
17. Neither Compuserve, nor its subscribers, sought or obtained 
authority from Frank or the members of the Class to upload 
(record), store, or download (re-record) performances of their 
respective Frank Work or Class Compositions to, in or from 
Compuserve's Bulletin Board.  
 
18. The acts and omissions of Compuserve hereinabove 
referred to constitute acts of copyright infringement by 
Compuserve with respect to the Frank Work and the Class 
Compositions.  
 
19. Written demand was heretobefore made upon Compuserve 
to cease and desist from is hereinabove alleged activities with 
respect to the musical compositions owned or controlled by the 
publisher-principals of the Harry Fox Agency, Inc.  
 
20. Despite such written demand aforesaid, Compuserve 
continues its hereinabove alleged activities.  
 
21. The acts and omissions of Compuserve hereinabove alleged 
are wilful and intentional acts of copyright infringement with 
respect to Frank's copyrighting the Frank Work and the Class' 
respective copyrights in the Class Compositions and, by reason 
of multiple uses of a number of the Class Compositions, 
constitute more than six hundred ninety (690) wilful and 
intentional acts of infringement in connection with the Frank 
Work and the Class Compositions.  
 
WHEREFORE, Frank, on behalf of itself and the Class, 
demands relief as follows:  
 
1. That Compuserve be required to pay to Frank and each 
member of the Class the sum of not less than $100,000 for each 
infringement by Compuserve of the respective copyrights in 
the Frank Work and the Class Compositions, as statutory 
damages provided in the U.S. Copyright Act.  
 
2. That Compuserve, its agents, servants, employees, 
subsidiaries, divisions, and affiliates be preliminarily enjoined 
during the pendency of this action and be permanently enjoined 
thereafter from: a) infringing the copyrights in the Frank Work 
and the Class Compositions in any manner; b) permitting, 
facilitating or otherwise participating in the recording and re-
recording of the Frank Work and the Class Compositions in 
any manner including, but not limited to, the uploading and 
downloading of performances of the Frank Work and the Class 
Compositions to or from Compuserve's computer database, or 
otherwise permitting, facilitating or otherwise participating in 
the storage of such performances therein.  
 
3. That Compuserve during the pendency of this action be 
required to purge its computer database of those files from 
which copies or phonorecords of performances of the Frank 
Work and the Class Compositions can be made, and otherwise 
be required to prevent any access thereto by Compuserve's 
subscribers.  
 
4. That Compuserve be required to deliver up to be impounded 
during the pendency of this action and to deliver up for 
destruction all articles and devices in its possession, custody 
and control from which infringing copies or phonorecords of 
the Frank Work and the Class Compositions can be made or 
derived.  
 
5. That Compuserve be required to pay to Frank and to the 
Class the costs and disbursements of this action, together with 
reasonable attorney's fees to be allowed by the Court.  
 
6. That Frank and the Class have such other and further relief 
as the Court may deem just and proper.  
 
 
Dated: October 29, 1993. 
 
 
SILVERMAN & SHULMAN, P.C. 
 
/s/ Alan L. Shulman 
Bar No. A99520 
 
136 East 57th Street 
New York, NY 10022 
(212) 758-2030 
 
Attorneys for Plaintiff 
 
 
ENDNOTES 
 
* The Harry Fox Agency, Inc. provides licensing and collection 
services to over 12,000 music publishers-principals and is the 
licensing and collection agent of plaintiff Frank Music Corp. 
and all of the members of the Class in this action. The Harry 
Fox Publishers' Association, Inc., a not-for-profit corporation 
and the principal trade association of music publishers in the 
United States.  
 
** "MIDI" is the acronym for "Musical Instrument Digital 
Interface." It constitutes the stream of data that flows between 
musical instruments in the digital world of computers and 
music-producing instruments such as synthesizers. It can be 
recorded electronically in a computer's memory, stored 
permanently on the floppy disks used in computers, and later 
recalled to play back the musical work which is the subject of a 
MIDI recording.  
 
=============================================
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
 
 
FRANK MUSIC CORP., on behalf of 
itself and all others similarly 
situated, 
 
-against- 
 
COMPUSERVE INCORPORATED, 
 
Defendant. 
 
 
Civil Action No. 93 Civ. 8153 (JFK) 
 
STIPULATION AND ORDER- 
AMENDMENT OF THE COMPLAINT AND THE ANSWER  
 
 
IT IS HEREBY STIPULATED AND AGREED by and 
between the parties to the above-entitled action, by their 
respective undersigned attorneys, that pursuants to Rule 15(a) 
of the Federal Rules of Civil Procedures, the Complaint and the 
Answer heretofore filed in this action be, and they hereby are, 
deemed amended as follows:  
 
1.  The Complaint is hereby amended by: 
 
a) Deeming the Schedule "A" annexed to this Stipulation as 
being annexed to and made a part of the Complaint;  
 
b) Adding the following sentence at the end of Paragraph "2" 
of the Complaint:  
 
"Attached hereto and made part of this Complaint as Schedule 
"A" is a list identifying both the "Class Compositions" and the 
"Frank Work" (as such terms are hereinafter referred to in 
musical compositions as well as the members of the Class, 
which in addition to Plaintiff, totals three hundred and eighty-
three (383) music publishers."  
 
c) Substituting the following for the first line of Paragraph "3" 
of the Complaint:  
 
"3.  The Class, in addition to Plaintiff, numbers three hundred 
and eighty three (383),"  
 
d) Substituting the following for the first five (5) lines of 
Paragraph "11" of the Complaint:  
 
"11.  Members of the Class are, and at all times relevant herein 
were, the copyright owners of their respective musical 
compositions as identified on Schedule "A" (the "Class 
Compositions"), which Class Compositions:  
 
A. number nine hundred and forty-six (946);"  
 
e) Substituting the following for the first three (3) lines of 
Paragraph "13" of the Complaint:  
 
"13.  Compuserve in providing access to its Bulletin Board (in 
particular its "MIDI**/Music Forum" and various "libraries" 
therein, as well as over thirty other "Forums" by its paying 
subscribers, is, and at all relevant times"  
 
2.  The responses set forth in the Answer (as originally filed) 
are hereby deemed responsive to the allegations set forth in the 
Complaint as herinabove amended.  
 
Dated: October 25, 1995, New York, New York  
 
 
SILVERMAN & SHULMAN, P.C. 
 
By: /s/ Alan L. Shulman [AS 9520] 
136 East 57th Street 
New York, New York 10022 
(212) 758-2020 
Attorneys for Plaintiff and the Plaintiff Class  
 
DEBEVOISE & PLIMPTON 
 
By: /s/Bruce P. Keller 
875 Third Avenue 
New York, New York 10022 
(212) 909-6000 
Attorney for Defendant 
 
 
SO ORDERED: 
 
Dated: November 7, 1995, New York, New York  
 
By: 
Hon. John F. Keenan, U.S.D.J.