Home > artist rights > Timing is Everything: Sirius May be Barred from Appealing California Loss to Turtles #irespectmusic

Timing is Everything: Sirius May be Barred from Appealing California Loss to Turtles #irespectmusic

November 15, 2014

Rut ro.  For those of you following along, remember that Flo & Eddie won a tremendous victory against SiriusXM on a motion for summary judgement in federal court before U.S. District Judge Philip Gutierrez in California in a putative class action on behalf of all pre-72 recordings.

Sirius appealed the Turtles case.

Also recall that the major labels filed a separate case in California state court before California Superior Court Judge Mary H. Strobel.  The labels essentially won that case when California Judge Strobel followed similar reasoning to federal Judge Gutierrez .  However, the California judge handed down her opinion after Sirius filed its appeal in the federal case applying California law.

So because Sirius lost both cases, the Turtles may be able to stop the Sirius appeal in the band’s federal court case if they can rely on the decision in the major label State court case.

Two parallel cases in two different court systems, both interpreting California law.

Here’s where it gets interesting.

Before federal Judge Gutierrez decided the Turtles federal case, California Judge Strobel in the major label case issued a preliminary ruling that looked like the court was going to rule against the major labels.  Lucky for them, the artists got a favorable decision first, and lucky for everyone except Sirius, the California Judge Strobel in the major label case reversed her preliminary ruling tilting against the labels and adopted federal Judge Gutierrez’s argument as a matter of California law.

But–in its appeal, Sirius is essentially asking the 9th Circuit for rule on what the California law would be–except that after Sirius filed its appeal, we got California Judge Strobel ‘s ruling.  So we now know what the California law is in fact, after the appeal was filed with federal Judge Gutierrez, but before he ruled on the appeal.

Law360 explains further:

“The ‘tentative’ ruling in the [labels’] case which Sirius XM claimed reached an ‘opposite conclusion’ had ceased to be tentative and, more importantly, had ceased to be opposite,” the [Turtles] filing said.

“Sirius XM claimed not to know about the falsity of its representations when it filed its motion. However, even under its own explanation, it knew within minutes of its filing — and it also knew that the false statements were the foundation for its motion,” The Turtles said. “Yet, rather than withdrawing its motion, Sirius XM insisted on proceeding with it even though it had no factual basis and even less of a legal basis”….

To win an immediate appeal of that decision, Sirius is going to have to prove more than just a judicial conflict over the issue. It’ll also have to show that such a move would be likely to speed up the case — another hurdle The Turtles said [in their filing] that Sirius couldn’t meet.

“Although their music is timeless, the artists who created pre-1972 recordings are aging and depend on the royalties from a marketplace that has been ravaged by piracy,” the filing said. “The artists who hope to benefit from this litigation are necessarily going to suffer tremendously from the delay that would result from an interlocutory appeal.”

The split between Judge Gutierrez’s decision and the tentative ruling weeks prior from Judge Strobel was initially a kind of silver lining for Sirius after the sound defeat in federal court. That changed on October 15th, when Judge Strobel heavily cited Judge Gutierrez’s decision in reversing course.

So Sirius may not be able to appeal the ruling against them by Judge Gutierrez and may have to move on to the damages phase of the case.  (Sirius may be able to appeal later on a different basis.)  More intrepid lawyering by Henry Gradstein and Harvey Geller.  And when you find Google Shill Listers referring to Flo & Eddie as “the company that owns the Turtles recordings”, i.e., spinning a holding company solely owned by Mark Volman and Howard Kayman rather than acknowledging an artist victory, you know that artists are winning.

Also realize that Gradstein and Geller also sued Pandora on the same issues in the same federal court where they had just won a favorable ruling from federal Judge Gutierrez.  And it’s all just a brilliant bit of lawyering.

Why is Sirius continuing this scorched earth policy against old guys and dead cats?  Time to settle your case folks.

Also recall that SoundExchange backed the RESPECT Act that will almost certainly be reintroduced in the next Congress (i.e., after Congress returns in January).  The RESPECT Act would fix the pre-72 issue for digital performances.  Sirius and Pandora had both opposed the RESPECT Act on the bizarre grounds that the Congress intended to screw the creators of our legacy of recorded music out of royalties for webcasting and simulcasting.

Of course the most Orwellian part of especially Pandora’s opposition to the RESPECT Act is because they wanted to help artists.  Yes, that’s right.  They wanted to help artists with something called “full federalization”.  Well, they got full federalization alright, just not in the location they were expecting it.

As a great drummer used to say, it’s all in the wrist.

Here are links to the documents:

Turtles Opposition to Sirius Appeal CA 031120007391

Flo Eddie v Pandora

  1. November 15, 2014 at 14:45

    Sirius and Pandora are very worried about their stockholders starting to understand enough copyright law to realize they don’t have sustainable business models.

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