Pretty Much Everyone Sues Sirius XM Over Copyright Issues On Pre-1972 Recordings

from the it's-a-pile-on dept

Thu, Sep 12th 2013 2:25pm — Mike Masnick

Over the past few years we've covered a number of stories having to do with the copyright status of pre-1972 recordings. Because of a bit of a quirk in copyright law, sound recordings weren't actually covered by federal copyright law in the US until after 1972. Instead, they were covered by a ridiculous patchwork of state laws -- which is one reason why old songs that would have been in the public domain (even under today's laws) had they been any other form of content, will be locked up for much, much longer. As you might imagine, some of those who hold the copyrights on those older songs have been trying to leverage this in somewhat ridiculous ways, such as arguing that the DMCA safe harbors don't apply to pre-1972 songs.

In the last month and a half or so, it appears that everyone who holds a copyright on pre-1972 recordings has picked a new target: satellite radio giant Sirius-XM. You see, pretty much everyone has assumed for years (with good reason) that the statutory rates set by the Copyright Royalty Board for Sirius XM to pay SoundExchange naturally applied to all copyright-covered music. After all, once you can get past the ridiculous idea that three old judges get to decide how much satellite radio companies have to pay to play music, you'd at least think that the rules applied across the board.

Except, someone recently remembered those pre-1972 recordings. It started back in August, when lawyers for Flo & Eddie, of The Turtles, suddenly started demanding tremendous amounts of money from Sirius. That resulted in a "class action" lawsuit, seeking $100 million, being filed in California. But why stop with California when there are 49 other states? The same lawyers have followed the same basic lawsuit in other states as well. These, apparently, followed a tremendously obnoxious "PLEASE GOVERN YOURSELF ACCORDINGLY" letter.

Sensing an opportunity it was missing to suck up even more money, SoundExchange jumped into the fray with its own lawsuit. Now, SoundExchange is the organization which Sirius XM already pays all those statutory rate moneys to... and has for years... but it's arguing that Sirius XM has been trying to avoid paying even the statutory rates on pre-1972 recordings, and that it's done so for years, despite the CRB being clear that it does need to pay up.

Of course, this raises some interesting questions. If Sirius XM really has been not paying SoundExchange for pre-1972 recordings and hasn't licensed those recordings from the copyright holders directly, then, um, it might be in serious trouble. If that's the case, it sounds like an astounding strategic error on the part of Sirius XM. While it may have saved them from paying some amount of revenue to SoundExchange (estimated at 10 to 15%), opening themselves up to having to then license each of those works directly is a nightmare. At the very least, if Sirius XM had continued to pay SoundExchange's statutory rates, it would have some sort of argument against the class action lawsuits. However, if it turns out that the satellite broadcaster had tried to avoid paying anyone... that's probably not going to end well.

Sensing blood in the water (of course), all three of the major labels have now jumped in with their own lawsuit over this issue. Basically, it appears that Sirius XM is going to be fighting this battle against multiple players in multiple courts for a long time. Of course, you can bet a lot of this is just posturing over a different dispute. Sirius XM has been actively trying to route around SoundExchange (who it pays a tremendous amount to each year) and do direct licensing deals. In fact, Sirius XM sued SoundExchange for antitrust violations last year, claiming the organization was colluding to stop artists from opting-out of the SoundExchange deal and doing direct licensing deals with Sirius XM.

In other words... these are just the latest in a whole series of legal battles about how to split up the pie, with little regard to actually trying to make the pie bigger. Typical.

157678779 the Turtles v Sirius Comformed and Filed Complaint 3 (PDF)157678779 the Turtles v Sirius Comformed and Filed Complaint 3 (Text)

165520930 Turtles Exhibit B to Class Action Complaint Florida (PDF)165520930 Turtles Exhibit B to Class Action Complaint Florida (Text)

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Filed Under: common law, copyright, flo & eddie, pre-1972, pre-1972 sound recordings, the turtles
Companies: riaa, sirius xm, soundexchange

15 Comments

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JWW (profile), 12 Sep 2013 @ 2:54pm

So long 60's on 6
I never listen to stuff older than the 70's but it would be interesting if SiriusXM just started a loop on channel 6 (60's music) explaining that copyright law is so screwed up that they won't ever be playing 60's music again.

Ditto 50's on 5 and the big band channel on channel 4.

If those artists are all greedy bastards, why the hell would I want to listen to their stuff anyway. Oh and if other older artists currently being paid by the royalty companies and deciding not to sue get hurt by the blackout of pre-60s music, then I guess it sucks to be them.

SiriusXM is routinely painted as a evil supervillan by the music industry, but Sirius are the ones being seriously abused by a horrible copyright system.
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out_of_the_blue, 12 Sep 2013 @ 3:07pm

Typical of grifters. Fixed that for ya.
Both SoundExcchange and Sirius XM totally grift. They're sleazy middlemen taking money away from honest artists. The latter is just same old grifting as radio only now on the internet. There should be statutory limitation on such, besides high tax rates.

But back up to Mike's next to last sentence: making the pie bigger. That runs up against inherent effect that more people are trying to eat the pie (meaning artists, here), tons of starry-eyed kids hoping for quick riches, and so inevitably quality and likelihood of big success go down. Besides that, while the available attention may increase with internet, music is competing with many other forms of entertainment that have also increased. The pie may actually be shrinking. As a practical matter, I'd forget about that, and anyway, as usual, Mike only puts out the bare notion, no attempt at follow-up.

Just finished reading an interesting piece, that I won't link, basically on the difficulty of getting noticed (either without or in spite of merits): seems mostly a matter of being obnoxious and contrary.* That stills seems to me to the major problem for any given person or group.

[* No, though stellar at those, it's incidental to stating my ideas, not a goal in itself.]
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- Anonymous Coward, 12 Sep 2013 @ 6:29pm
  
  Re: Typical of grifters. Fixed that for ya.
  Yeah, artists should just use their own satellites to broadcast their music.
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  - That One Guy (profile), 12 Sep 2013 @ 8:34pm
    
    Re: Re: Typical of grifters. Fixed that for ya.
    Sarcasm that may have been, but these days the smart ones do just that(in a sense) by hosting, selling, and offering people the ability to listen to their music via the many options online, all without having parasites like the major labels taking a massive cut of the profits, and demanding the musicians sign over their copyrights in exchange.
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    - PaulT (profile), 13 Sep 2013 @ 12:33am
      
      Re: Re: Re: Typical of grifters. Fixed that for ya.
      No, according to ootb anyone who offers such a service is just "grifting" from the musicians profits. Be it Sirius or Spotify offering them a way to stream their music, iTunes for letting people buy it or Twitter for letting them promote it, they're all "grifters"....
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      - Anonymous Coward, 13 Sep 2013 @ 7:24am
        
        Re: Re: Re: Re: Typical of grifters. Fixed that for ya.
        Even the artists are grifters, making money off of harmonic air vibrations. Filthy grifting artists.
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- PaulT (profile), 13 Sep 2013 @ 12:31am
  
  Re: Typical of grifters. Fixed that for ya.
  "The latter is just same old grifting as radio only now on the internet."
  
  So, you're saying *radio* is grifting now? The promotional tool that labels fell over themselves to try and illegally bribe to play their music so they'd earn more money?
  
  You really need to make up your mind. Are you obsessed with just attacking any online innovation that doesn't pay high corporate fees, or are you just opposed to the entire history of music now?
  
  "That runs up against inherent effect that more people are trying to eat the pie"
  
  No it doesn't. The pie gets bigger, even if more people are eating it. That might mean each slice is smaller, but the pie is bigger.
  
  I mean, seriously? The pie analogy is so that barely functioning retards like yourself can actually grasp the simple concepts that form the arguments. Now you're admitting you don't even understand the most basic analogy?
  
  "The pie may actually be shrinking."
  
  It may even be tranforming into a giant paella! Do you have any citations not gathered from your own nether regions (difficulty: the major label recording industry is not the whole music industry).
  
  "Just finished reading an interesting piece, that I won't link, basically on the difficulty of getting noticed (either without or in spite of merits): seems mostly a matter of being obnoxious and contrary.* That stills seems to me to the major problem for any given person or group."
  
  So why do you attack Mike every time he points out any service that allows such exposure?
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Anonymous Coward, 12 Sep 2013 @ 3:28pm

If my SiriusXM rates go up because of this, I will cancel the service. I'm sure I won't be alone - then nobody gets anything...
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Anonymous Coward, 12 Sep 2013 @ 3:49pm

and obviously the best way would be to cancel the whole thing and start from scratch with some people making the laws who know what they are talking about, while at the same time trying to stop the labels from demanding all the income. if that is the case, shut the business down straight away. the owner wont be earning but nor will the labels. surely even they wont be so stupid as to lose out on everything by not accepting a slightly smaller slice? if the one playing the songs get nothing, he isn't going to be daft enough to keep earning for everyone else!
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Anonymous Coward, 12 Sep 2013 @ 4:29pm

I wish those people get what they want and Sirius has to close its doors, I wish anyone dumb enough to deal with music goes bankrupt and have their names dragged into the mud until there is nobody absolutely nobody who wants to touch that crap ever.

Then I want to see the "musicians" complain of falling revenues and blame it on piracy LoL
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JT, 12 Sep 2013 @ 6:17pm

I want a job where I get to write a one-paragraph letter and demand $300 million for it.
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Anonymous Coward, 13 Sep 2013 @ 12:54am

The traditional music industry is suing more modern broadcasters to gain more of the income derived from artist's works. No wonder that the trope of the starving artist is so common as they are last in the queue to get any money made from the distribution of recording..
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- Pragmatic, 13 Sep 2013 @ 3:47am
  
  Re:
  Define "works." As JT said above, "I want a job where I get to write a one-paragraph letter and demand $300 million for it."
  
  That is what's at issue here. This is why the public domain is so important. All this griping and whining over copyright pretends that artists only lurk in recording studios, emerging at night to feed, presumably on the blood of the living, or something.
  
  Actually, no. As Techdirt has pointed out many times, attempting to restrict people from making money to advertise the performances of the artist via broadcasting and sharing causes more problems than it solves because the people at the end get the money first, then distribute it to middlemen till there's little of it left to give the artist. Assuming that the artist is not trapped in a "work for hire" agreement.
  
  Artists generally make the most money from live performances and other real scarcities such as public appearances. Royalties don't pay much unless the artist is insanely popular.
  
  So can we PLEASE stop pretending that artists ONLY make money from royalties from copies and broadcasts, and would starve to death without them?
  
  Thanks.
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Ninja (profile), 13 Sep 2013 @ 4:49am

I hope they end up destroying each other. I'm all for a nuclear winter in the copyright world. Maybe this will spark the much needed reform. No matter how you look at it this is plain madness. Just like anything related to intellectual property is.
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Anonymous Coward, 13 Sep 2013 @ 6:08am

True Talent
If any of these corporations involved around the music that was created from raw talent had any talent themselves, they would create their own music and cease and desist from making the public suffer through all of these lawsuits which most likely in the end will only result in the limitation of what music we are able to hear on the waves. Thank you very much for all your greed and non talent.
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