Flo & Eddie, Inc. v. Sirius XM Radio, 1:13-cv-05784-CM (SDNY filed 12/03/14) [Doc. 103].
As previously reported, a New York federal court recently found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. However, defendant Sirius XM, by new counsel, subsequently brought to the Court's attention a previously un-cited decades old 2nd Circuit decision, RCA Mfg. Co. v. Whiteman, 114 F.2d 86, 87-88 (2d Cir. 1940), which held that no common law public performance right existed in sound recordings. "Whiteman plainly should have been addressed the first time around, and it must be dealt with now- it is, after all, a Second Circuit decision (albeit a pre-Naxos decision) discussing key issues in this case." Accordingly, the court entered a scheduling order for plaintiff to respond and discuss the case