SiriusXM Loses For A Third Time On Public Performance Of Pre-1972 Works, This Time In New York

from the a-big-shakeup dept

Mon, Nov 17th 2014 3:41am — Mike Masnick

A year ago, a bunch of folks in the recording industry hit on its latest strategy to squeeze more money out of services playing music: upset decades of settled copyright law, and pretend that pre-1972 works were subject to public performance rights. Suddenly lawsuits started flying like crazy, most directed at Sirius XM, with a few directed at Pandora. The key issue is the fact that pre-1972 sound recordings are not covered by federal copyright law, but a patchwork of (very messy) state laws and common law. Those state laws were never considered to have included public performance rights, but now people are going back to pretend they did. Of course, there would be a simple way to deal with this: just make those recordings subject to federal copyright laws, but the RIAA has fought hard against this.

In September, a judge ruled against Sirius XM and in favor of Flo & Eddie, the company that owns the rights to the music of the band The Turtles. In October, another California court agreed with the first (despite initially leaning in the other direction). Both of those were specific to California state law, however. But now, another month has gone by and Flo & Eddie has another big victory over Sirius XM, this time under New York's law. You can read the ruling.

The judge, Colleen McMahon, acknowledges that this ruling completely upsets decades of accepted practice, but doesn't seem too bothered by it all:

Of course, the conspicuous lack of any jurisprudential history confirms that not paying royalties for public performances of sound recordings was an accepted fact of life in the broadcasting industry for the last century. So does certain testimony cited by Sirius from record industry executives, artists and others, who argued vociferously before Congress that it was unfair for them to operate in an environment in which they were paid nothing when their sound recordings were publicly performed.... That they were paid no royalties was a matter of statutory exemption under federal law; that they demanded no royalties under the common law when their product as ineligible for federal copyright protection is, in many ways, inexplicable.

But acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law - only that they failed to act on it.

Instead, she notes that the reason this is only coming up now is because Congress only created a performance right for digital music recently. That doesn't really make much sense when you think about it. If the industry was really sitting on this potential goldmine of performance royalties for decades, wouldn't it have made use of it before now?

Instead, the judge defaults to a purely maximalist approach, saying that absent any specific exemptions, we should assume that common law copyright in New York covers just about every damn thing.

Modern federal law supports the notion that an express carve-out is required in order to circumscribe the bundle of rights appurtenant to copyright

That should raise some serious First Amendment questions. In federal copyright law, the Supreme Court has argued that the First Amendment conflict is generally resolved through exceptions to copyright -- including those established in common law, like fair use. Yet here, the court is basically saying, unless an exemption is clearly stated, everything is covered. That's very troubling.

Of course, it's likely that this, like the California cases, will be appealed, and it will all eventually end up before the Supreme Court. But, in the interim, don't be surprised if "golden oldies," including pretty much all music from pre-1972, start disappearing from a variety of services. Good job, recording industry, you may succeed in driving the classics into total obscurity.

246631456 Turtles Sirius NY Ruling (PDF)246631456 Turtles Sirius NY Ruling (Text)

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Filed Under: copyright, new york, performance rights, pre-1972, pre-1972 sound recordings, the turtles
Companies: flo & eddie, pandora, sirius xm

52 Comments

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Reader Comments

The First Word

“

This is just incorrect:

Modern federal law supports the notion that an express carve-out is required in order to circumscribe the bundle of rights appurtenant to copyright

Modern federal copyright law carves out explicit exceptions to free speech in the Copyright Act of 1976. This statement shows a fundamental misunderstanding of the nature of copyright law by the judge, as well as the nature of intellectual property generally.

Then again, I've litigated enough to not be surprised.

—John William Nelson

”

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Ninja (profile), 17 Nov 2014 @ 3:05am

But, in the interim, don't be surprised if "golden oldies," including pretty much all music from pre-1972, start disappearing from a variety of services.

Can't blame the services for it. And again you can rely on file sharing to preserve such things much like it's been done with a variety of titles. It is sad that pirates came too late to save some titles that rotted in the MAFIAA's warehouses though.
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That Anonymous Coward (profile), 17 Nov 2014 @ 4:35am

YAY!!
So the cartels will manage to get a small pile of cash that they might throw a few cents of to the artists...and will have made sure that no platform will touch ANY of this content in the future.
There will be no discovery of this content by new fans, so no future sales potential, and they will use the lack of interest as a reason to withdraw these things from the market.

Isn't copyright wonderful?

For a limited time really should be less than the half life of plutonium.
The laws of the past are so far removed from the present day they are damaging.
It is well past time that the laws be revisted and revised and actually make sure that he public is given something once again in exchange for these "limited" monopolies.
The patchwork of laws here and abroad no long serve any purpose but to line the pockets of the cartels at the expense of the artists and the public.
Things under copyright vanish, locked away and forgotten because no one knows who has the rights.

Copyright should require that it be available in the market at the market price lest it lose its status.
Millions are wasted in legal fights that manage to change what laws actually say to meet some new desire for income off of content they hold but can't be bothered to market themselves. Perhaps it would be best to put them back into the job of selling content and not rewriting laws to keep old concepts alive... they forgot their job was to promote, expose, and sell... no to lock up forever while they consider how to squeeze every tenth of a cent they can possibly get.
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MadAsASnake (profile), 17 Nov 2014 @ 4:44am

Of course - getting rid of the golden oldies is a pre-requisite for selling Justin Beiber.
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Anonymous Coward, 17 Nov 2014 @ 5:07am

in other words, as is so usual in these cases, you have a judge that knows almost nothing concerning copyright and who should get what, for what, and when, ruling again, as usual for the entertainment industries, probably because of encouragement from those industries because it is the 'biggest participant in the case and it wouldn't lie, would it'!
i never could understand why the law makes this sort of thing illegal unless money is paid out, even after 10years, let alone the lifetime plus another one or whatever. absolutely ridiculous!!
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Anonymous Coward, 17 Nov 2014 @ 5:18am

Re. "Of course, there would be a simple way to deal with this: just make those recordings subject to federal copyright laws, but the RIAA has fought hard against this."

It's oh so tempting to creatively adapt this without permission or consent to "bring back copyright terms to a sensible below human life duration and the waste of lawyers fees and legal racketeering on obsolete laws will go away".
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Anonymous Coward, 17 Nov 2014 @ 5:18am

It's too late to save the old music. There's nothing we can do about that now.
What we need to do is keep educating new and potential artists to stay away from the labels. Sure they may look alluring to start with, but once you sign the deal with the devil (and make no mistakes, they genuinely are the devil) you can pretty much kiss your profits goodbye. Things won't look so nice once you get your first royalties check...if you ever get your first royalties check. Because they'll be sure to do everything in their power, including breaking the law, to make sure you don't. Education here is key.

And the next time the dinosaurs in a suit try to proclaim they are doing anything for the sake of culture, throw this back in their face immediately.
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beech, 17 Nov 2014 @ 5:35am

Response to: Anonymous Coward on Nov 17th, 2014 @ 5:18am
Maybe this is part of the point. Make copyright so complicated with so many interlacing laws and facets and associated rights that getting all the necessary rights to use a piece of music is suddenly to much work. Music channels will have to deal with buying rights in bulk from the huge labels, because jumping through all those hoops with every inde label or band is too complicated to be worth the effort.

Then we end up with an orphan works scenario. If you want to play pre 1972 music, you gonna track down who has the rights to your favorite obscure musician, or buy a big package from MAFIAA?
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Anonymous Coward, 17 Nov 2014 @ 5:45am

Re: Response to: Anonymous Coward on Nov 17th, 2014 @ 5:18am
If the MAFIAA claim to license all pre-1972 music, will they defend the licensees when the actual rights owners sue them?
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Kaden (profile), 17 Nov 2014 @ 5:52am

Flo and Eddie
"Flo & Eddie, the company that owns the rights to the music of the band The Turtles".

Flo and Eddie are the actual Turtles. Mark Volman and Howard Kaylan were the Turtles dudes, but they adopted the names of Frank Zappa's roadies when they joined the Mothers of Invention after the Turtles sank.

I'll shut up now.
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John William Nelson (profile), 17 Nov 2014 @ 6:10am

This is just incorrect:

Modern federal law supports the notion that an express carve-out is required in order to circumscribe the bundle of rights appurtenant to copyright

Modern federal copyright law carves out explicit exceptions to free speech in the Copyright Act of 1976. This statement shows a fundamental misunderstanding of the nature of copyright law by the judge, as well as the nature of intellectual property generally.

Then again, I've litigated enough to not be surprised.
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Ed (profile), 17 Nov 2014 @ 6:24am

The RIAA/MPAA/ASCAP and idiots like "Flo & Eddie" are the best friends The Pirate Bay could ever have. TPB FTW!
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Anonymous Coward, 17 Nov 2014 @ 6:35am

Why aren't copyright treated like assets in inventory and taxed annually? I bet the lobbying for longer terms would reverse quickly if you had to pay an annual fee for each copyrighted work that you wished to keep locked away. $10 per year that a work has been under copyright seems like a reasonable compromise between what an individual creator can afford and an economic incentive for a large corporation to release work that are no longer earning a profit.
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Anonymous Coward, 17 Nov 2014 @ 6:49am

Re: Flo and Eddie
It's an interesting story. The Turtles record company went bankrupt soon after the band dis-banded. Mark Volman and Howard Kaylan came back and bought the rights to "The Turtles" a decade later. The other band members were basically screwed over, as is typical in the shark-eat-shark music business.

Other than music copyrights, another issue with these 'oldies' bands --in fact, any band-- is that the trademarks are often not owned by the band members themselves. And not uncommonly, when the original band menbers get together and tour, they are prohibited from using their former name in any manner whatsoever, and are even barred from answering "yes" to that question on a radio interview.

The public tends to think of band members as being owners/partners, but that's usually not the case at all. Many are basically just hired hands with no ownership interest, and can be sacked at any time.

So whenever an oldies band comes to town, it's always a good idea to look them up to see if it's really the original band ... or just some session players hired by some guy who bought the band name as an investment.
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Anonymous Coward, 17 Nov 2014 @ 7:05am

Re:
Excellent idea. If intellectual property is indeed property, then why can't it be taxed like property? Why is there no annual registration or fee for copyrights? Why all the advantages of (normal) property ownership, but none of the disavantages?
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Anonymous Coward, 17 Nov 2014 @ 7:24am

Mike Masnick just hates it when musicians get paid for their hard work.
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Anonymous Coward, 17 Nov 2014 @ 7:30am

Re:
The suit wan't filed by labels or "cartels". It was filed by two musicians, Mark Vollman and Howard Kaylan.

But don't let facts get in the way of your anti-musician, pirate rant.
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Anonymous Coward, 17 Nov 2014 @ 7:37am

Re: Re: Flo and Eddie
"The other band members were basically screwed over"

The "other band members" was a revolving door of back up musicians. Mark Volman and Howard Kaylan were the mind, soul and voices of the band The Turtles.

But don't let facts get in the way of your anti-musician, pirate rant.
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jupiterkansas (profile), 17 Nov 2014 @ 7:58am

Re: Re: Re: Flo and Eddie
It's possible to correct people's factual errors without insulting them.
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beech, 17 Nov 2014 @ 8:14am

Re: Re: Re: Re: Flo and Eddie
Incorrect. This is the internet. Insults are king, jackass. But don't let that get in the way of your anti-douchebag, pro-civility rant.
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Anonymous Coward, 17 Nov 2014 @ 8:16am

Re:
I know the feeling. I built this house 30 years ago and it sold several times since I built it. Why am I not getting paid for my hard work for each time it sells. /s I have no problem if Musicians get paid. I have a problem that they feel entitled to be paid over and over for all eternity and it is supported by the government. Why doesn't the government enforce everyone to pay me over and over for my hard work? Sure, I was already paid once but it took time to plan and implement. I should be paid a percentage every time money exchanges hands due to my hard work for the next 70 years.
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Anonymous Coward, 17 Nov 2014 @ 8:24am

This ruling sounds completely sensible from a legal point. The problems emerge when the law in itself is insensible.
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Anonymous Coward, 17 Nov 2014 @ 8:33am

Re: Re:
I should be paid a percentage every time money exchanges hands due to my hard work for the next 70 years.

That would be an improvement on copyright, which is getting paid for the rest of your life, and your inheritors getting paid for the next 70 years. That is your hard work should keep you and your children and grandchildren in luxury.
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jupiterkansas (profile), 17 Nov 2014 @ 8:36am

Re: Re: Re:
You forgot all their lawyers too.
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beltorak (profile), 17 Nov 2014 @ 8:45am

Re:
that would be awesome; and if you go by their (*ahem*) logic, each copyrighted work is worth anywhere from 30,000 to 150,000 bucks....
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Gwiz (profile), 17 Nov 2014 @ 8:52am

Re:
Mike Masnick just hates it when musicians get paid for their hard work.

That statement is simply untrue. Over 15 years of blog posts from Mike dispute that without a doubt.

You seem to be lashing out at the messenger because reality isn't quite conforming to your illusions of what the music business should be.

You can shake your fist at the clouds all you want, but it won't change the fact that your little exclusive club isn't so exclusive anymore because the bouncers (A&R men) can no longer stop everyone at the door and the pie is now being cut into smaller pieces.
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Anonymous Coward, 17 Nov 2014 @ 9:02am

"Good job, recording industry, you may succeed in driving the classics into total obscurity."

That's probably their goal. How many artists from the 50's and 60's are still actively touring, have merchandising etc? People spending time finding and listening to their music are people not spending time and money on whatever hot new artist the RIAA is pushing and the associated concerts, merchandise, and so forth.

The past isn't valuable to them, it's the competition. And I think we all know how fond recording industry types are of competition.
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Dan, 17 Nov 2014 @ 9:31am

Flo & Eddie taking over from the rip off artists
So Mark Volman and Howard Kaylan get screwed by the record company (they can't perform under their own names, etc); I guess they decided to play "if you can't beat them, join them" and screw over anybody who might want to listen to their music the created? I might have been interested in seeing them on their next stop thru town on the Happy Together tour, but not anymore. And Volman has a business to 'aid up and coming musicians'?!
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Baron von Robber, 17 Nov 2014 @ 10:05am

Re: Re: Re: Flo and Eddie
I'm a pirate and a musician. =b
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Baron von Robber, 17 Nov 2014 @ 10:08am

Re:
Musicians just hate it when douchbags think Mike hates musicians.
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Mike Masnick (profile), 17 Nov 2014 @ 10:10am

Re:
Mike Masnick just hates it when musicians get paid for their hard work.

No, I'm *THRILLED* when artists get paid for their hard work, which is why I happily highlight successful artist business models all the time. What worries me is when the law is abused in a way that stifles creativity and innovation.
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That Anonymous Coward (profile), 17 Nov 2014 @ 10:22am

Re: Re:
"But don't let facts get in the way of your anti-musician, pirate rant."

[Citation Needed]

but don't let that get in the way of your baseless accusations.
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DandonTRJ (profile), 17 Nov 2014 @ 10:29am

The judge actually got this one right. "Decades of settled practice" by industry isn't a binding legal determinant. The plaintext of the law supports Flo & Eddie's position. Also, there's a difference between "express carveouts" to copyright law and "exceptions" thereto, the latter category being broader. The only express carveout to the California law is for cover songs (not broadcasting), but SiriusXM still got to litigate a bunch of affirmative defenses *for* their broadcasting (including fair use), so First Amendment concerns were definitely factored in. They just happened to lose on it, because there's nothing transformative about broadcasting songs for pure commercial gain. I agree that the law is silly, and there should just be a federal broadcasting right for all recordings instead of this stupid segmentation before and after 2/15/72, but that's something for the legislature to fix, not the judiciary.
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PRMan, 17 Nov 2014 @ 11:03am

Re:
This is EXACTLY what the services should do. Remove every song 1972 and before and never play it again.

After all, those songs are 42 years old now, so clearly that's the answer.
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Anonymous Coward, 17 Nov 2014 @ 11:06am

Re: Re: Re: Re:
Oops, forgot the parasites who get paid first, which is why so many artists are starving.
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PRMan, 17 Nov 2014 @ 11:11am

Re:
I think this schedule works:

Year Payment
1-5 Free and automatic
6-10 $10 and must register
11-15 $100 and must register
16-20 $1,000 and must register
21-25 $10,000 and must register
25-30 $100,000 and must register
31-35 $1,000,000 and must register
etc.

This ensures that at some point, it's cheaper to not register and allow the work to go into the public domain.

Most works would not be registered at all and even most popular works only once or twice. Maybe some Disney movies would actually make it to the 30 year mark and maybe Michael Jackson or the Beatles, but most works wouldn't make it that far.
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PRMan, 17 Nov 2014 @ 11:15am

Re:
This is most likely true. You see it in arcade ROMs. Nobody has licensed and sold their ROMs for play in emulators, even though many people would pay 99 cents for a licensed copy.

They don't WANT you to play old games. It's getting in the way of you buying their new games.
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Anonymous Coward, 17 Nov 2014 @ 12:14pm

Re: Re:
That or pay for them. A lot of internet radio services simply pay Sound Exchange for them like they would any other song recorded post-1972. There hasn't been any sign that any of those services are facing lawsuits.

All on-demand services (Spotify, Rdio, Rhapsody, Beats) pay for pre-1972 recordings as well.
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Anonymous Coward, 17 Nov 2014 @ 12:20pm

Re:
That's not their goal and it won't happen. That is just typical TechDirt exaggerations. Other services like Spotify, Rdio, Rhapsody, XBox Music, Beats, iTunes Radio, and nearly all direct-licensed services are paying for pre-1972 recording. SiriusXM and Pandora are just looking for a way to cut their royalty costs.
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Zonker, 17 Nov 2014 @ 12:32pm

Re: Re:
Actually, as recently advertised on my local news station there are a lot of old arcade games available now online at the Intenet Arcade. Of course, as you pointed out many people would still pay to obtain copies of the game ROMs for themselves.
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Beech, 17 Nov 2014 @ 1:09pm

Re: Re: Response to: Anonymous Coward on Nov 17th, 2014 @ 5:18am
Huh? I wasn't saying they were going to claim the rights to license all pre-1972 music, I was saying they're going to make getting ALL the assorted licenses for old music in all states and venues so much work it's not going to be worth the bother to sort through the legal morass just to play one song by one band. If you want to get the rights to play pre-1972 music (like on an oldies station) it will only be worth your time to negotiate all the licenses for a huge label with a big library rather than 100s of individual bands.

In fact, what with termination rights hanging just around the corner, this could be even more insidious.
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Beech, 17 Nov 2014 @ 1:14pm

Re: Re:
I almost think the "automatic" option is pretty bad. It would make it much easier for everyone to register everything you want a copyright on. Put it all online. Let everyone know who owns what works and for how long. No more orphan works. No more trying to figure out who owns which rights on what music. Online registry, pure and simple.
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jupiterkansas (profile), 17 Nov 2014 @ 1:22pm

Re: Re: Re: Re: Re:
If only the offspring benefited from the "estate" I doubt such a law would exist. It's only because "estates" need to be "managed" by lawyers that copyright can last over 150 years.
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jupiterkansas (profile), 17 Nov 2014 @ 1:25pm

Re: Re:
Of course they're looking to cut their their royalty costs. They're asking, "Why are we paying royalties when federal law says we don't have to?"
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Anonymous Coward, 17 Nov 2014 @ 2:21pm

Re: Re: Re:
Keeping an on-line registry up to date requires work by the rights owners, as they have to update it with every change of address, sale of company; transfer of rights, whether by sale or inheritance. Even then there would still be an orphan works problem when death or bankruptcy left no obvious transfer of ownership.
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Anonymous Coward, 17 Nov 2014 @ 4:27pm

Re: Re:
And of course, now that more money needs to be thrown at them there'll be more pre-1972 works produced, right?
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Anonymous Coward, 17 Nov 2014 @ 4:28pm

Re:
Whine away, paste eater.
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techflaws (profile), 17 Nov 2014 @ 10:02pm

Re:
Get a job.
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Bergman (profile), 18 Nov 2014 @ 1:41am

This sort of ruling makes me wonder if Judge McMahon got her gavel out of a Cracker Jack box...
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Nicolas (profile), 18 Nov 2014 @ 4:31am

Re: Flo and Eddie
Volman and Kaylan put out a few albums as Flo & Eddie when the Turtles folded. I can't imagine SiriusXM plays their horrible crap.
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Ugh, 18 Nov 2014 @ 7:21am

"Of course, it's likely that this, like the California cases, will be appealed, and it will all eventually end up before the Supreme Court."

This is insanely sloppy and irresponsible reporting. The order above is denying summary judgement, meaning the case is still in motion practice. It hasn't even come close to trial yet. This is not a final opinion, this is not jurisprudence, this is not what the article says it is.
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John Fenderson (profile), 19 Nov 2014 @ 8:37am

Re: Re: Re: Re:
"Keeping an on-line registry up to date requires work by the rights owners"

Yes it does. That's a good thing.

"Even then there would still be an orphan works problem when death or bankruptcy left no obvious transfer of ownership."

That wouldn't be a problem at all -- if the records aren't up to date, then the copyright isn't valid and the work falls into the public domain. There would be no orphan works issue.
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Karl (profile), 19 Nov 2014 @ 11:25am

Re:
This is insanely sloppy and irresponsible reporting. The order above is denying summary judgement, meaning the case is still in motion practice. It hasn't even come close to trial yet. This is not a final opinion, this is not jurisprudence, this is not what the article says it is.

It's true that it's not a final judgement, but it is an order ruling that, as a matter of law, the Turtles do have a public performance right under New York state law.

In fact, the judge gave SiriusXM until December 5th to bring additional facts to the case (not legal arguments), and if not, she would issue a default judgement against them:
Furthermore, it appears to the Court that there are no disputed issues of material fact as to
liability. Sirius is therefore ORDERED to show cause by December 5, 2014, why summary judgment should not be entered in favor of Flo and Eddie as to liability only.

In other words, the only thing that would save SiriusXM from liability is if there were "disputed issues of material fact" - e.g. if SiriusXM could show that they did not, in fact, play the Turtles' music.

This is about as close to a final judgement as you can get without actually being one.
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