While the Court is largely unpersuaded and sometimes baffled by Sirius XM’s repetitive or off-point theories about how reasonable jurists might read an unwritten exclusion into §980(a)(2), the Court will not analyze the potential grounds for difference of opinion because certification of this Order suffers from an even more basic deficiency. At this stage in the litigation and under the operative scheduling order governing the case, certification of the Order for immediate appeal would delay rather than materially advance the termination of the litigation; therefore, the Court denies the motion.
This case is moving swiftly toward trial and a final resolution that will be appealable to the Ninth Circuit in the customary manner allowed by the Federal Rules of Civil Procedure. The Court has already ruled on liability as to Sirius XM’s wrongful conduct – publicly performing Flo & Eddie’s sound recordings without its permission.
Is Irving sending a signal to all digital services? Oh, I just betcha he is.
There’s actually a pretty simple answer to the very public demand letter to YouTube from Irving’s Global Music Rights. If Irving’s GMR has the public performance rights to these high profile songwriters it’s probably because the writers transferred their songs to GMR from wherever they were. The songs had to start somewhere.
If those songs transferred out of the ASCAP, BMI and SESAC environment, then it’s likely that none of them are subject to blanket licenses granted by those societies. That also means that those songs aren’t part of the US government’s iron fisted control over songwriters, either. Which means that unlike at least ASCAP and BMI, GMR is under no obligation to license anything to anybody.
That means that it’s possible that anyone who had a blanket license with the societies now has to also have a deal with GMR. If you think that is unusually fragmented, send your thank you note to the U.S. Department of Justice, followed closely by Pandora. The dynamic duo of DOJ and Pandora have been doing their best to screw up collective licensing in the U.S. for years.
Well, Pandora, now you’ve got it.
Here’s how it could work. Even though artists are subject to the compulsory license for sound recordings that is the backbone of Pandora’s business, songwriters that are not subject to the Department of Justice are free to say no. That would include GMR songwriters, you know, the ones who write the hits.
If GMR songwriters decide they don’t want to be in Pandora, then Pandora can’t use the songs.
So YouTube may stumble around trying to come up with a theory other than Lex Google Sum, but they, too, are on notice that they don’t have rights to these songs. That’s called “red flag knowledge” in the trade. And red flag knowledge of infringement trumps the DMCA safe harbors.
Just in case you thought that 100,000,000 take down notices didn’t do the trick.
So Irving Azoff is broadcasting his intentions if you ask me. Is anyone listening?
Well, we thought about this. Here’s another preliminary snapshot from the Music Fan Survey, this time about Bit Torrent. (Take the survey here.)
As some of you may have noticed, we are conducting a casual survey of music fans. While we are still collecting data, here’s an interim look at a couple of the results.
I have to say that I’m not surprised by any of these results, but it is worth noting that some are wildly opposite to what some companies would have you believe (Pandora, Google, Sirius, Spotify).
|AARP||Gay & Lesbian Victory Institute|
|Access Now||George Mason University Law School Law and Econ. Center|
|American Action Forum||Global Network Initiative|
|American Antitrust Institute||Global Voices|
|American Association of People with Disabilities||Heritage Action|
|American Conservative Union||Heritage Foundation|
|American Constitution Society for Law and Policy||Human Rights Campaign|
|American Council of the Blind||Information Technology and Innovation Foundation|
|American Enterprise Institute for Public Policy Research||International Center for Law and Economics|
|American Foundation for the Blind||Internet Education Foundation|
|American Library Association||Institute for IP and Social Justice at Howard Law School|
|Americans for Tax Reform||iKeepSafe|
|Asian American Justice Center||Joint Center for Political and Economic Studies|
|Asian Pacific American Institute for Congressional Studies||The Latino Coalition|
|APAICS Leadership Network||Leadership Conference on Civil and Human Rights|
|Aspen Institute||League of United Latin American Citizens|
|American University Program on Information Justice and IP||Mercatus Center|
|Boys & Girls Clubs of America||National Association for the Advancement of Colored People|
|The Brookings Institution||Nat’onal Assoc. of Latino Elected and Appointed Officials|
|California State University Northridge Foundation||National Association of the Deaf|
|Capital Factory||National Center for Missing & Exploited Children|
|CATO Institute||National Consumers League|
|Center for a New American Security||National Congress of American Indians|
|Center for American Progress Action Fund||National Council of La Raza|
|Center for Democracy and Technology||National Cyber Security Alliance|
|Center for the Rule of Law||National Federation of the Blind|
|Center for Strategic and International Studies||National Hispanic Media Coalition|
|Committee to Protect Journalists||National League of Cities|
|Common Sense Media||National Network to End Domestic Violence|
|Competitive Enterprise Institute||National Taxpayers Union|
|Congressional Black Caucus Foundation||National Urban League|
|Congressional Black Caucus Institute||New America Foundation|
|Congressional Hispanic Caucus Institute||Searle Center on Law, Regulation, and Economic Growth|
|Congressional Hispanic Leadership Institute||PEN American Center|
|Congressional Institute||People for the American Way|
|ConnectSafely||Progressive Policy Institute|
|Constitution Project||Public Knowledge|
|Consumer Action||Reporters Without Borders|
|Consumer Federation of America||Ripon Society|
|Council of Better Business Bureaus Inc.||R Street Institute|
|Creative Commons||Small Business Majority Foundation|
|Electronic Frontier Foundation||TechFreedom|
|Engine Advoacy||Technology Policy Institute|
|Enough is Enough||Transparency International|
|Family Online Safety Institute||U.S. Black Chamber Inc.|
|Federalist Society||U.S. Conference of Mayors|
|Free State Foundation||U.S. Hispanic Chamber of Commerce|
|Freedom House||Washington Legal Foundation|
|Future of Music Coalition||Wired Safety|
|Future of Privacy Forum||Women’s High Tech Coalition|
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.
“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:
More to follow, but the Turtles win another one for all pre-72 artists in federal court in New York applying New York state copyright law. Yet more intrepid lawyering by Henry Gradstein and Harvey Geller who also won the Turtles case in California. Brown shoes don’t make it, baby.