Allman

concurring.

The majority reverses the district court’s summary judgment because it believes there is a genuine issue of material fact as to whether Capricorn Records, LLC exceeded the scope of a compulsory license issued by Allman to PolyGram Records, Inc. I agree that summary judgment was improper but for different reasons.

Capricorn will be liable to Allman for copyright infringement if it reproduced and/or distributed Allman’s song either without a license or in a way not permitted by its license. 17 U.S.C. §§ 106 , 501; Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir.1999). Our first inquiry, then, should be whether Capricorn reproduced or distributed the song. If it did, we should then determine whether it had a license to copy or distribute and, if so, whether the alleged infringing activity falls within the scope of that license. My principle objection to the majority’s approach is that it skips past the first two inquiries and focuses solely on whether Capricorn exceeded the scope of the Poly-Gram license. I would attempt to resolve the first two questions before addressing the license scope issue.

PolyGram undoubtedly exercised significant…

*83 MEMORANDUM *

Gregory L. Allman and his solely owned publishing companies, Elijah Blue Music, D-Dem Music, Allbro Music and Relot Music (hereinafter jointly referred to as “Allman”) appeal the district court’s summary judgment and dismissal in favor of Capricorn Records in Allman’s copyright infringement action under 17 U.S.C. § 115 . We reverse and remand for further proceedings. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

The salient issue in this case is whether the defendants 1 exceeded the scope of compulsory licenses issued by All-man to PolyGram Records, Inc., to make and distribute phonorecords of various copyrighted songs. If a copyright owner grants a nonexclusive license to use his copyrighted material, he generally waives his right to sue the licensee for copyright infringement and can sue only for breach of contract. Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir.1999) (citing Graham v. James, 144 F.3d 229, 236 (2d Cir.1998)). However, if a license is limited in scope, and the licensee acts outside the scope of the license, the licensor can bring an action for…