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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 >