Judge Sez SiriusXM Cannot Transfer Turtles Suit

Flo and Eddie

A California federal judge this week refused to allow Sirius XM Radio Inc. to move a $100 million putative class action alleging it illegally played songs recorded before 1972, finding the broadcaster hadn’t sufficiently argued in favor of transferring the suit to New York.

U.S. District Judge Philip S. Gutierrez ruled against moving the suit, saying the putative class led by members of the American rock band The Turtles wasn’t addressing the same laws as another action in New York.

The lead plaintiffs in the case are Flo & Eddie of The Turtles, the iconic band whose hits include "Happy Together," "It Ain't Me Babe" and "She'd Rather Be With Me."

The band has a history of bringing big cases, but the reason why this lawsuit, filed in L.A. Superior Court, commands notice comes down to the magical number of 1972, according to The Hollywood Reporter.

Feb. 15, 1972, is the exact day on which sound recordings began falling under federal copyright protection.

For recorded music created before then, the situation is a bit more murky. The question this lawsuit addresses is: What laws cover those recordings?

Every day, SiriusXM transmits thousands of pre-1972 recordings and does so likely with the confidence that §114 of the Copyright Act gives them this authority. That statute carves out limitations on exclusive rights and also sets up the way that owners of recordings get compensated. Currently, the Copyright Royalty Board is the entity that sets statutory royalty rates for satellite radio, and SoundExchange is the entity that collects the royalties to pass along.

But it is the contention of Flo & Eddie, representing themselves and others similarly situated, that federal law can't be relied upon when dealing with pre-'72 music on satellite radio.

Until 2011, SiriusXM sent Sound Exchange a log of every song that was played along with a lump sum in royalities owed. The problem was that the log didn't include pre-1972 reocrdings, and payment wasn't broken down per song, meaning that royalties were distributed to all artists on Sirius' playlist. Two years ago, Sound Exchange requested that SiriusXM document everything that it was paying for, and SiriusXM has since stopped reporting pre-1972 recordings.