Saturday, December 13, 2014

Federal Judge Shoots Down SiriusXM Reversal Bid

A New York federal judge ruled Friday that a decades-old Second Circuit ruling wouldn't force her to reverse her ruling that SiriusXM needs to pay to play pre-1972 records, saying the satcaster's new attorneys at O'Melveny & Myers LLP made “a clear error” by digging up the old decision.

Sirius swapped legal teams last month after the latest in a string of losses over the old recordings, which are covered by state laws, not federal copyright.

The case in question concerns phonograph records, and SiriusXM was asking the Federal judge to use it as a basis to reconsider her finding in November that based on state laws, performers from the band The Turtles deserve an unprecedented copyright payout when companies play their old songs.

SiriusXM believed U.S. District Judge Colleen McMahon overlooked the phonograph decision’s significance.

Penned by the famous jurist Judge Learned Hand, the 1940 decision concluded that a radio station did not have to pay an orchestra band leader, in addition to the song composer, each time it played a recording of his performance.

Learned Hand wrote that state law should not let performers, once a phonograph was sold, control how and when it was played:
We think that the “common-law property” in these performances ended with the sale of the records and that the restriction did not save it; and that if it did, the records themselves could not be clogged with a servitude.
Friday's decision could mean higher music prices for everyone, and yet another expansion of U.S. copyright law.

The Turtles claims are also just the tip of the iceberg, since every other performer (or their heirs) will be in a position to make claims over unpaid per-1972 royalties too. This could represent a major financial blow to radio stations and to music websites like YouTube and Vimeo, and would likely lead them to simply pull most oldies music from their playlist altogether.

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