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Must Read: @zvirosen Critiques Florida Flo & Eddie Ruling: Another Season, Another Common-Law Copyright Opinion — Artist Rights Watch

October 30, 2017 Comments off

The Turtles state law case in Florida on pre-72 case against SiriusXM gets a road bump from a results-oriented decision from the Florida Supreme Court.

via Must Read: @zvirosen Critiques Florida Flo & Eddie Ruling: Another Season, Another Common-Law Copyright Opinion — Artist Rights Watch

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

November 15, 2014 1 comment

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

#irespectmusic and Fasten Your Seatbelts: Where Do We Go From Here on Pre-72?

September 25, 2014 Comments off

This has been a good week for artist rights–the Turtles struck a major blow in the struggle against the new boss in their case against Sirius to protect the rights of artists who recorded prior to 1972.  What should we expect now from new boss companies like Pandora, Sirius, YouTube and Clear Channel?  When we remember that the new boss is far, far worse than the old boss, there are certain events we can anticipate.  No money, bigger alliances against us and crony capitalism on steroids.  I’d love to be wrong, but don’t be surprised if I’m right.

1.  No Payments and Scortched Earth Litigation:  While it would be the right thing to do, my prediction is that it will be a frosty day in Hell before the new boss will ever pay a penny to pre-72 artists, musicians or background vocalists without a final nonappealable judgement following absolute scorched earth litigation.  The one advantage to artists about this is that the new boss litigation will bring into sharp focus exactly who these people are and whose side they’re on.  Artists will get a reminder of who they’re dealing with every single day of the lawsuits–that could go on for many years.  Yes–they have that much disdain for artist rights.  You have to ask yourself when does disdain cross over into something much darker.

2.  Alliance of Big Tech and Big Radio:  Don’t forget that broadcast radio is directly implicated by the Turtles decision.  Even though a Clear Channel was not a defendant, the decision could easily be interpreted to require a public performance license for pre-72 recordings at terrestrial broadcast radio.  This is the very issue that the National Association of Broadcasters has been fighting for decades, spending probably over $100 million to stop artists getting paid for radio play–which just happens to be the damages award that the Turtles asked for in their case against Sirius.  (So you have to ask, what if they just paid the royalty like every other country except a handful such as North Korea and Rwanda.)

As we saw with Pandora and Sirius’s disastrous adventure with the Internet Radio Fairness Act (“IRFA”) and the Internet Radio Fairness Coalition, the NAB no longer has to fight artists by themselves.  No, they have company.  Pandora is a member of the Digital Media Association (DiMA) for starters, which includes Amazon, Google and Apple as members.  I would bet that the market cap fluctuation of DiMA members on a brisk trading day exceeds the worldwide market capitalization of the entire music business.

And this doesn’t include DiMA’s alliances with the Computer and Communications Industry Association and the Consumer Electronics Association.  Here’s the panel at a recent “invitation only” DiMA “Congressional seminar” on Capitol Hill:Screen Shot 2014-07-20 at 3.23.11 PM

Expect to see the IRFA alliance reanimated to oppose us in litigation and especially in lobbying.  And remember–friends don’t let friends get IRFA’d.

3.  Crony Capitalist Lobbying:  I would expect to see Pandora and Sirius trot out the old standbys of “platform parity” and “full federalization” seasoned with incantations of “innovation” and “don’t break the [FILL IN BLANK]”.  It likely will be phrased like this:  “We would be happy to pay if all platforms were treated the same to preserve innovation and consumer choice.” (It’s unlikely that any royalty payment increase will be passed on to consumers.) In the case of the Turtles, this will mean that broadcast radio has to pay for pre-72 on terrestrial.  These statements will be greeted by tech industry lobbyists and publications as though someone had presented some self-evident wisdom.  Google Shill Listers will likely trumpet this as an issue of fundamental fairness, don’t break the [FILL IN BLANK] yadda yadda.  Or perhaps in the positive as in “Break the free market”, the DIMA mantra.  A THREAT TO DEMOCRACY AS WE KNOW IT.

Because it’s so fair to take advantage of a self-defined loophole that at least one judge thinks is a mirage.  And it’s so democratic to lobby your way to commercial advantage.  (So I don’t want to hear a peep from any of these people about Citizens United or campaign finance reform.)

You can also expect to see the combined lobbying brainpower of companies with over a trillion dollars in market value introduce legislation written by their lobbyists that will compete with the Internet Radio Fairness Act for cruelty.  This may well be an amendment to the RESPECT Act that will effectively gut it under the guise of “platform parity” or “full federalization”.

Understand what “full federalization” means.  Pandora has been saying they’d support the RESPECT Act if it only provided for “full federalization” of pre-72 recordings.  What that means is that Pandora wants the federal government to preempt any state law sound recording copyright protection.  This would effectively “federalize” and gut state law so that all the federal defenses to copyright infringement would be available.  Companies like Google would love that to no end.  This is because Google does not get DMCA safe harbors on pre-72 recordings (I predict this is the next big artist lawsuit).  How this helps Pandora, I don’t quite see, but then Google’s Doubleclick handles all their advertising–that is, controls their revenue–so go figure.

Dima Panel

So when you hear “full federalization” think “fully formed opportunity to screw you over”.  They will pass this off as supporting artist rights, by which they mean the “termination rights”–the rights of authors to terminate transfers and licenses established under the 1976 revision of the U.S. Copyright Act.  (Specifically pursuant to Sections 203 and 304(c) for those who are reading along.)  They won’t tell you that most recording artists will have a tough time qualifying for termination rights for a host of reasons starting with work for hire, the termination applies in the US only, and a few other things.  Like they’ve never met an artist right they didn’t want to gut.  Not that it’s not worth dealing with the termination issue for pre-72 at some point–it is.  It’s just not worth giving up all the compensation rights for 50 years or so of recorded music in order to maybe get a handful of those artists covered.  That issue can be dealt with in regular order and separately.

In other words–pre72 artists don’t have a termination right now, but they do have a right to be compensated.  Like the bully in the playground stealing your lunch money, they want you to feel like they really do have your nutritional interests at heart if you’d just lick their boots clean.

Also known as ice in winter.  Because whatever it is that Pandora and Sirius choose to do, we know from past performance it will not be the right thing to do.

So fasten your seat belts, kids, it’s going to be a bumpy night.

Register in September. Vote in November.

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Hold On, I’m Coming: Reactions to the Turtles/Sirius Ruling on Unlicensed Use of Pre-72 Recordings #respectallmusic

September 24, 2014 3 comments

Reactions to the Turtles crushing defeat of Sirius are coming in, here are a few:

Sam Moore (of Sam & Dave) said it best:

Winners never quit and quitters never win.  The recording artists of the pre-72 era are winners and we are not quitting until it’s all made right for every single one of us.

It’s a good day for artists, musicians, songwriters and labels whose life’s work was infringed by Sirius.

Richie Furay (Buffalo Springfield):

“Today we are one step closer to pre-1972 music creators receiving fair pay. The ruling against Sirius XM for playing, but not paying Flo & Eddie (aka The Turtles), is a victory in music licensing history.”

T Bone Burnett:

“It is good that a federal judge made clear that online and mobile music services that have pre- 1972 recordings on their playlists should pay the artists who created these recordings. This decision puts in high relief how arbitrary the idea of 1972 is as a dividing line. If Aretha Franklin is driving listeners to a digital music service, she should share in the revenue that is generated.”

The incomparable Martha Reeves:

“This music is our legacy, and we are grateful that the court in California has acknowledged that artists have the right to be compensated when it is used by digital radio services.”

And Mark Farner of Grand Funk Railroad:

“The Court’s ruling in favor of the Turtles makes it clear that all recordings are worthy of protection.  It’s a matter of simple fairness and I am delighted that legacy artists are being heard by our justice system. Thanks to the Turtles for bringing this issue front and center.  Now more than ever it’s clear that Congress should pass the RESPECT Act, which clearly and fairly makes sure that ALL artists are treated fairly by digital radio.”

Earlier this year, SoundExchange joined with a coalition of artists in launching Project72, a campaign to ensure fair compensation for those who recorded music before 1972 and in support of H.R. 4772, the RESPECT Act. We’ve discussed Project 72 and the RESPECT Act previously on MTP:

Mike Huppe, CEO of SoundExchange:

“This decision in California confirms what we have always known: all sound recordings have value, and all artists deserve to be paid fairly for the use of their music. It does not – and should not — matter whether those recordings are protected by state or federal law.

While we are thrilled with the Turtles’ legal victory, it’s unfortunate that artists and labels were forced to pursue litigation just to receive fair payment for their art. Legacy artists like the Turtles built the foundation of music today – music that helps Sirius XM make billions of dollars a year – and it is outrageous that some digital radio services believe they can use the music of legacy artists for free.

It is clear now more than ever that Congress should quickly move to pass the RESPECT Act.  The bill, introduced by Representatives George Holding (R-NC) and John Conyers (D-MI), would require digital radio services to pay royalties to pre-1972 artists when their music is played. The RESPECT Act would also give Sirius XM, Pandora, and other services an easy and efficient way to get the rights that the federal court in the Turtles case has confirmed they need – and to give the artists the payment they deserve.”

It’s as well to remember an important passage from the Copyright Office’s report on pre-72 sound recordings:

The [Copyright] Office thinks it is unreasonable for the age of a sound recording to dictate whether royalties are paid on public performances by means of digital audio transmissions, so long as copyright subsists in that sound recording.

Looks like the Turtles made that so.

#IRespectMusic: California Court Rules for The Turtles, Deals Crushing Blow to Sirius in Victory for Artist Rights on pre-72

September 23, 2014 3 comments

Score Round One for the Duke, the Count and Satchmo–Flo & Eddie pka The Turtles have won a crushing victory over Sirius XM requiring Sirius to license and pay royalties for Flo & Eddie’s recordings published before 1972.  Sirius had taken the position that because the Congress did not expressly include pre-1972 recordings when it established the performance right for sound recordings in 1995, Sirius did not have to pay royalties on pre-72 recordings it used on its service.  This is a position held by Pandora and the Digital Media Association which includes Google among its membership.  More about that later.

The case was brilliantly argued for Flo & Eddie by Henry Gradstein and Harvey Geller, two long time artist advocates (the firm is also representing Aimee Mann in her lawsuit against MediaNet).  The theory is actually very simple, even biblical–thou shalt not steal.  But then I’m an Old Testament kind of guy.

However, the case is based on a complex set of legal principles that need to be mastered and presented just so in order to prevail.  Because Flo & Eddie managed to get back ownership of their masters years ago, they were able to bring the case themselves without any record company involvement.  (After the artists led the way, the major labels also sued Sirius.)  And Gradstein and Geller made a very effective and compelling argument to the Court that resulted in victory, a victory that will be available to artists and copyright owners everywhere seeking to correct the “Pandora loophole.”

Not only will this defeat for Sirius, Pandora and DiMA be encouraging to artists wishing to take action, it also provides what must be a tremendous sense of satisfaction to the sponsors of the RESPECT Act (HR 4772), introduced by Rep. George Holding and Rep. John Conyers.  The cosponsors are a bipartisan group seeking to right the wrong of the Pandora loophole: Reps. Coble, Blackburn, Chu, Cooper, Deutch, Gohmert, Jeffries, Peterson, Rangel, Lowenthal, Collins, Rooney and Fincher.

The Pandora loophole is an effort to justify denying artists their right to satellite radio and webcasting royalties by playing with dates.  Those dates are 1972, 1995 and 1998.  (In Flo and Eddie’s California case, another date was 1982.)  1972 is important because that was the first year that Congress extended the federal copyright law to sound recordings.  Before 1972, sound recordings are governed by state common law, sometimes included statutes as is the case in California that has an extensive state copyright act directly on point as one might expect.  1995 is important because that was the year that Congress established a limited public performance right in sound recordings transmitted digitally (including satellite radio and webcasting) and 1998 is important because that was the year that Congress fleshed out the law that established the compulsory license under Section 114(g), the royalty rate setting and put the finishing touches on establishing SoundExchange.

The Pandora loophole is some version of this argument:  Because state law applies to pre-72 sound recordings and because Congress did not intend to extend the performance right to sound recordings in 1995, pre-72 artists and copyright owners (as well as the non featured singers and musicians) get none of the royalties established in 1998 under the compulsory license.  But here’s the truly weird part:  Sirius rejected the safety of the compulsory license established in 1998 to commercialize the limited performance rights established in 1995 in favor of no license at all under state law.

Yes, that’s right:  Grown men thought this was a good idea.

The case boils down to a very simple concept:  California has a carefully crafted state copyright law that the Court ruled includes the public performance right (and does not exclude it):

The Court finds that copyright ownership of a sound recording under § 980(a)(2) [the California copyright statute] includes the exclusive right to publicly perform that recording. See Cal. Civ. Code § 980(a)(2).  Accordingly, the Court GRANTS summary judgment on copyright infringement in violation of §980(a)(2) in favor of Flo & Eddie.

The point–and one made recently by David Lowery–is that there is no language in either the California state law or in the 1995 amendment to the federal Copyright Law that excludes public performance royalties for pre72 recordings.  So the RESPECT Act can be thought of as almost a technical amendment to fix this Pandora loophole.

Neither Pandora nor Sirius exactly trumpet to their users the fact that these companies are using the pre-72 recordings in multiple channels to their profit–but none of the fees paid by fans ever gets to the artists.  Pandora even misappropriates the artist’s name in the music genome and uses association with artists by name in order to sell their service–and that’s not covered by the compulsory license, either.  (And neither is the derivative work created by the music genome–but that’s another lawsuit.)

So you have to ask yourself–what were they thinking?  Wouldn’t it have been better if Sirius really wanted to stiff old guys and dead cats that they paid the royalties and sought declaratory relief before cutting off America’s musical treasures?

Pandora and Sirius have a chance now to openly reject the bad advice they got (apparently from DiMA) and start paying on pre-72 IMMEDIATELY.  Throw their support behind the RESPECT Act.  Disassociate themselves from DiMA, CCIA, CES or whoever is giving them this horrible advice that it’s worth the downside liability risk and yet more bad PR to “save” a few bucks and stiff Miles Davis, Duke Ellington, Neil Young and so many greats who are responsible for putting American music on the map.

But if past behavior is any prediction of future action, they won’t.  You get into these scrapes by being pig-headed, and you can’t waive a magic wand and make a pig into something else.  You can fire them, however.

And when Wall Street gets a load of the level of liability that these companies have taken on without a care in the world, the reaction will be interesting.

Apparently Pandora’s CFO would like Pandora to be a better partner to artists.  That’s easy.

All he has to do is act like it.

 Register in September.  Vote in November.

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