SiriusXM Loses Another Round In Court

For the third time in as many months, SiriusXM has been rocked with a court ruling over the issue of pre-1972 sound recordings, according to The Hollywood Reporter.

This time, a ruling comes in New York, a sign that the satellite radio broadcaster's liability won't be limited to California — the scene of earlier losses — plus bad news for Pandora and terrestrial radio operators.

SiriusXM has been fighting lawsuits from Flo & Eddie of The Turtles as well as major record labels for publicly performing sound recordings without authorization and compensation.

The key to these disputes is understanding that sound recordings only began falling under federal copyright protection in 1972. State laws protect sound recordings authored before that year, but until these new lawsuits were brought, it wasn't particularly clear whether ownership of a pre-72 sound recording included the exclusive right to publicly perform the song.

Flo & Eddie Of The Turtles

On Friday, New York federal judge Colleen McMahon became the latest to weigh in on the legal firestorm by denying SiriusXM's motion for summary judgment in a second lawsuit brought by Flo & Eddie.

She shrugged off SiriusXM's principal argument that no public performance rights exist because New York case law contains no discussion of it. She acknowledges the "accepted fact of life in the broadcast industry for the last century" that nobody was paying royalties for public performance.

According to the judge, there is a stronger argument that the years of judicial silence "implies exactly the opposite of what Sirius contends — not that common law copyright in sound recordings carries no right of public performance, but rather that common law copyright in sound recordings comes with the entire bundle of rights that holders of copyright in other works enjoy."

As that happens, all sorts of other music users — terrestrial radio operators, digital streamers and maybe even your local pub — are going to be faced with some big decisions about whether or not to continue playing pre-72 music without a license from the owners of sound recordings.

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