In the past couple months, facing the owners of older music, SiriusXM has lost, lost again and lost thrice over the issue of whether California and New York state laws protect the exclusive right to publicly perform pre-72 sound recordings.
In the first battle against Flo & Eddie of The Turtles, SiriusXM wanted to appeal the decision before moving ahead to the next stages of litigation including class certification and damages liability.
But U.S. District Judge Philip Gutierrez won't make it easy.
His earlier decision granting summary judgment to the plaintiffs was grounded upon a California law that was enacted in 1982 that was meant to address pre-1972 music, before sound recordings began falling under federal law. The state statute was silent on the issue of public performance, and despite decades of terrestrial broadcasters and others assuming a right to broadcast hits from the 1960s, the judge decided that the law included performance rights for the benefit of copyright owners rather than excluding them.
On Thursday, the judge issued a new ruling on the issue of whether SiriusXM could take up an immediate appeal. He writes:
"While the Court is largely unpersuaded and sometimes baffled by Sirius XM’s repetitive or off-point theories about how reasonable jurists might read an unwritten exclusion into §980(a)(2), the Court will not analyze the potential grounds for difference of opinion because certification of this Order suffers from an even more basic deficiency. At this stage in the litigation and under the operative scheduling order governing the case, certification of the Order for immediate appeal would delay rather than materially advance the termination of the litigation; therefore, the Court denies the motion."This doesn't necessarily mean that there won't be an appeal nonetheless. SiriusXM can try to get the 9th Circuit to order one up anyway. But it does make it more unlikely.
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