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ARSCLIST  January 2016

ARSCLIST January 2016

Subject:

Re: Latest in Flo & Eddie (Turtles) vs Sirius case

From:

Jim Sam <[log in to unmask]>

Reply-To:

Association for Recorded Sound Discussion List <[log in to unmask]>

Date:

Mon, 4 Jan 2016 11:23:47 -0800

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (216 lines)

For anyone following digital streaming and royalties issues, news is that
Flo and Eddie's lawyer is now also suing Spotify.

http://www.digitalmusicnews.com/2016/01/04/spotify-slapped-with-a-second-class-action-lawsuit/

On Wed, Oct 22, 2014 at 6:18 AM, Leggett, Stephen C <[log in to unmask]> wrote:

>
> http://www.copyhype.com/2014/10/california-law-protects-public-performance-rights-of-pre-1972-sound-recordings/
>
>
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of Leggett, Stephen C
> Sent: Friday, October 17, 2014 7:02 PM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] Latest in Flo & Eddie (Turtles) vs Sirius case
>
>
> http://blog.ericgoldman.org/archives/2014/10/a-seismic-ruling-on-pre-1972-sound-recordings-and-state-copyright-law-flo-eddie-v-sirius-xm-radio-guest-blog-post.htm
>
> A Lengthy analysis:
> "A Seismic Ruling On Pre-1972 Sound Recordings and State Copyright Law-Flo
> & Eddie v. Sirius XM Radio (Guest Blog Post)"
> ....
> Implications
>
> The ruling is a huge victory for sound recording copyright owners, which
> can use the ruling not only to negotiate higher negotiated rates for public
> performance of pre-February 15, 1972 sound recordings, but may also use
> such older recordings as leverage for negotiating higher rates for
> post-February 15, 1972 sound recordings.  (Such negotiation tactics might
> be deemed to be copyright misuse, but it is unclear whether state law will
> recognize this federally-recognized defense.)  Moreover, nothing in the
> decision limits the state-law violations to public performance by means of
> digital audio transmission, so the decision gives sound recording copyright
> owners the general public performance right in pre-February 15, 1972 sound
> recordings that they have always craved, but that was previously denied to
> them under federal law (and was assumed not to exist in state law under
> Whiteman).  That means that traditional AM/FM broadcasters and television
> broadcasters, who are expressly exempt under federal law with respect to
> post-February 15, 1972 sound recordings, can expect to be sued next.
>
> Sound recording copyright owners can also use the ruling to go after
> internet service providers.  Section 512 of the federal Copyright Act
> provides that internet service providers are not liable for infringements
> committed by their users, so long as the service provider promptly complies
> with the "notice-and-takedown" provisions of that section.  But because
> Section 301(c) states that pre-February 15, 1972 sound recording copyrights
> are not preempted by the federal act, sound recording copyright owners have
> been suing internet service providers under state law, arguing that service
> providers are liable for reproduction and electronic distribution of
> pre-February 15, 1972 recordings under state law, and that the limitation
> of liability provided by federal law does not apply.  Existing court
> decisions so far are split, with the New York Appellate Division holding
> that Section 512 does not apply to pre-February 15, 1972 sound recordings,
> because of the express terms of Section 301(c); while the U.S. District
> Court for the Southern District of New York has held that Section 512 does
> apply to pre-February 15, 1972 sound recordings, notwithstanding Section
> 301(c).
>
> The Flo & Eddie ruling will undoubtedly be appealed to the U.S. Court of
> Appeals for the Ninth Circuit.  It will take some time for that court to
> render a decision, however.  In the meantime, unless the ruling is stayed
> pending appeal, one can expect "oldies" recordings to start to disappear
> from Sirius XM radio, and a pitched battle may be waged in California
> courts (state and federal) over the use of pre-February 15, 1972 sound
> recordings by other digital broadcasters and traditional AM/FM and
> television broadcasters.  It is worth noting, however, that because this
> issue is governed primarily by state law, the Erie doctrine applies.  In
> the absence of federal preemption, both the federal district court and the
> Ninth Circuit can only predict how the state courts would rule on the
> interpretation of a state statute.  The Ninth Circuit should take advantage
> of the certification procedure provided for by state law and certify the
> question to the California Supreme Court, so that a binding interpretation
> of state law can issue.
>
> When the issue reaches the California Supreme Court, it should take into
> account the historical context, that public performance rights in sound
> recordings that were sold to the public have been assumed not to exist
> under state law for over 75 years.  Interpreting a state statute first
> enacted in 1872 to provide such rights now, some 75 years later, will wreak
> havoc with existing commercial practices.  The Register of Copyrights has
> recommended that Congress bring pre-February 15, 1972 sound recordings
> under federal law, and she has also recommended that the existing digital
> audio transmission right for sound recordings should be extended to a
> general public performance right.  Doing so at the federal level makes
> sense.  Litigating the existence of a public performance right on a
> state-by-state basis, when such a right was assumed not to exist for over
> 75 years, does not.
>
> Case citation: Flo & Eddie Inc. v. Sirius XM Radio Inc.,
> 2:13-cv-05693-PSG-RZ  (C.D. Cal. Sept. 22, 2014).
> Share this:
>
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of Leggett, Stephen C
> Sent: Friday, October 17, 2014 8:58 AM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] Latest in Flo & Eddie (Turtles) vs Sirius case
>
>
> http://variety.com/2014/music/news/record-labels-win-key-ruling-over-sirius-xms-airplay-of-pre-1972-songs-1201331348/
>
> Record Labels Win Key Ruling Over Sirius XM's Airplay of Pre-1972 Songs
>
>
> https://www.techdirt.com/articles/20141016/06025128843/sirius-xm-hit-again-over-pre-1972-recordings.shtml
>
> "Sirius XM Hit Again Over Pre-1972 Recordings from the
> convinced-by-the-other-ruling dept A few weeks ago, we wrote about how
> Sirius XM had lost its case concerning the public performance rights over
> pre-1972 sound recordings by the band The Turtles. As we noted, this ruling
> effectively upset decades of consensus about public performance rights for
> pre-1972 works. When that ruling came out, we noted that the judge, in a
> nearly identical case brought by the RIAA, appeared to be leaning in the
> opposite direction. It appears that the judge, Mary Strobel, read the other
> ruling and found it convincing enough to lean back in the other direction.
> While not a final determination in the case, Strobel has issued a ruling
> (pdf) that makes it pretty clear that Sirius XM is likely to lose, based on
> her agreement with that other ruling.
>
>     Having considered the additional authority, the papers submitted and
> arguments of counsel, the court is persuaded that it should change its
> tentative ruling.
>
> The ruling itself is more of an essay of "on the one hand, on the other
> hand" arguments, rather than a typical judicial ruling (in many ways making
> it more readable), with the judge more or less suggesting that she's not
> entirely comfortable with this outcome, but that based on the plain
> language of California's state copyright law, this is the best way to read
> the law.
>
> Of course, the real mess here is because of the different treatment of
> pre-1972 recordings"
>
>
> http://www.hollywoodreporter.com/thr-esq/siriusxm-dealt-new-blow-riaas-741177
>
> "SiriusXM Dealt New Blow in RIAA's Lawsuit Over Older Music
> 3:51 PM PDT 10/15/2014 by Eriq Gardner
>
> The record industry is suddenly much closer to winning a huge copyright
> case against the satellite radio giant after a judge does a 180
>
> It's getting worse for SiriusXM in the ongoing strife over pre-1972 music.
>
> Last month, a California judge granted summary judgment to Flo & Eddie of
> The Turtles who alleged that the satellite radio giant was misappropriating
> their songs without authorization and compensation. The judge decided that
> ownership of sound recordings authored before 1972 - before federal
> copyright law began covering recorded music - included the exclusive right
> to publicly perform the recording.
>
> The decision has now swayed another judge who was presiding over a similar
> case brought by Capitol Records and other record industry giants.
>
> In August, Los Angeles Superior Court Judge Mary Strobel expressed her
> inclination to reject proposed jury instructions offered by the record
> companies, but on Tuesday, she had a change of heart by granting what the
> record companies were seeking."
>
>
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of Leggett, Stephen C
> Sent: Wednesday, September 24, 2014 9:12 AM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] Latest in Flo & Eddie (Turtles) vs Sirius case
>
> And lastly , a long Billboard analysis/article
>
>
> http://www.billboard.com/articles/news/6259277/siriusxm-copyright-battle-ruling
>
>
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of Leggett, Stephen C
> Sent: Wednesday, September 24, 2014 8:09 AM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] Latest in Flo & Eddie (Turtles) vs Sirius case
>
> From the article:
>
> "But overall, this is a whopping ruling with consequences almost
> impossible to overstate. In the short term, the ruling will likely be
> appealed as the plaintiffs eye a trial that will determine the awarding of
> damages. In the long term, it could compel SiriusXM, Pandora and many in
> the tech industry to strongly lobby Congress for new copyright laws that
> cover pre-1972 recordings. The ruling also will - or should - be read
> closely by other businesses including terrestrial radio operators and bars
> that publicly perform older music.
>
> SiriusXM is facing another lawsuit from the RIAA in California as well as
> more lawsuits from Flo & Eddie in other states. Pandora is also facing a
> lawsuit by record labels in New York. And the ruling potentially opens the
> floodgates to more litigation on the issue of pre-1972 music."
>
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of Leggett, Stephen C
> Sent: Wednesday, September 24, 2014 7:51 AM
> To: [log in to unmask]
> Subject: [ARSCLIST] Latest in Flo & Eddie (Turtles) vs Sirius case
>
>
> http://www.hollywoodreporter.com/thr-esq/siriusxm-suffers-crushing-loss-high-734981
>

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