SoundExchange v. Muzak, No. 15-cv-476 (D.D.C. filed Mar. 8, 2016).
The Court held that Muzak, a grandfathered "preexisting subscription service" under 17 USC 114, enjoyed a favorable royalty rate -- not subject to the "willing buyer/willing seller" standard -- for its SonicTap service even though that service was not offered at the relevant statutory date. Interpreting the statute, the Court found that Congress intended to permit preeexisting subscription services to expand their offerings. This ruling was also consistend with the legislative history and findings by the Register of Copyrights.
Showing posts with label Satellite Radio. Show all posts
Showing posts with label Satellite Radio. Show all posts
March 10, 2016
June 23, 2015
Florida Court Rejects Pre-72 Sound Recording Rights in Turtles/Sirius Case; Contrary To NY and CA Decisions
Flo & Eddie, Inc. v. SiriusXM, No. 13-23182-CIV-GAYLES/TURNOFF (S.D. Fla. dated June 22, 2015).
A Florida federal court granted defendant Sirius summary judgment as to liability on plaintiff Flo & Eddie's (the Turtle's) common-law copyright infringement claims, although New York and California courts have found differently. The Florida federal court observed that Florida is different from New York and California, inasmuch as as there is no Florida legislation covering sound recordings nor is there a bevy of case law interpreting common law copyright related to the arts. "The Court finds that the issue of whether copyright protection for pre- 1972 rec ordings should include the exclusive right to public performance is for the Florida legislature." Accordingly, the Court found that Florida common law did not provie plaintiff with the exclusive right of public performance in the Turtles' sound recordings. Further, the Court found that back-up and buffer copies made by Sirius were not unlawful reproductions. Because the Court found that Sirius had not infringed any of Plaintiff's copyrights, the Court also dismissed plaintiff's related claims for unfair competition, conversion and civil theft (all of which were based on alleged copyright infiringement).
A Florida federal court granted defendant Sirius summary judgment as to liability on plaintiff Flo & Eddie's (the Turtle's) common-law copyright infringement claims, although New York and California courts have found differently. The Florida federal court observed that Florida is different from New York and California, inasmuch as as there is no Florida legislation covering sound recordings nor is there a bevy of case law interpreting common law copyright related to the arts. "The Court finds that the issue of whether copyright protection for pre- 1972 rec ordings should include the exclusive right to public performance is for the Florida legislature." Accordingly, the Court found that Florida common law did not provie plaintiff with the exclusive right of public performance in the Turtles' sound recordings. Further, the Court found that back-up and buffer copies made by Sirius were not unlawful reproductions. Because the Court found that Sirius had not infringed any of Plaintiff's copyrights, the Court also dismissed plaintiff's related claims for unfair competition, conversion and civil theft (all of which were based on alleged copyright infiringement).
December 24, 2014
Copyright Royalty Board Royalty Rates For Performance Of Sound Recordings Affirmed
Music Choice v. Copyright Royalty Board, No. 13-1174/13-1183 (D.C. Cir. Dec. 19, 2014).
In 2013, the Judges of the Copyright Royalty Board (CRB) issued a determination setting royalty rates and defining terms for statutorily defined satellite digital audio radio services and preexisting subscription services. SoundExchange, which collects and distributes royalties, argued that the CRB arbitrarily set rates too low and that the CRB erred in defining "Gross Revenue" and eligible deductions. Music Choice, which provides music-only television channels, also appealed arguing that the Judges set the rates too high.
The Court of Appeals held that the CRB acted within its broad discretion to set rates for compulsory licenses of the digital performance of sound recordings, and therefore affirmed the determination of royalty rates. The appellate court found that the CRB did not exercise its broad discretion in an arbitrary or capricious manner when setting royalty rates for satellite digital audio radio services and preexisting subscription services.
For satellite digital audio radio services, the rate was set at 11%; in order to avoid disruption, the CRB adopted a staggered schedule beginning at 9% in 2013 and increasing by 0.5% annually until achievement of 11% in 2017.
For preexisting subscription services, the rate was set at 8.5% with an upward adjustment for Music Choice's planned channel expansion. The rate would start at 8% in 2013 and increase to 8.5% for 2014 through 2017.
In 2013, the Judges of the Copyright Royalty Board (CRB) issued a determination setting royalty rates and defining terms for statutorily defined satellite digital audio radio services and preexisting subscription services. SoundExchange, which collects and distributes royalties, argued that the CRB arbitrarily set rates too low and that the CRB erred in defining "Gross Revenue" and eligible deductions. Music Choice, which provides music-only television channels, also appealed arguing that the Judges set the rates too high.
The Court of Appeals held that the CRB acted within its broad discretion to set rates for compulsory licenses of the digital performance of sound recordings, and therefore affirmed the determination of royalty rates. The appellate court found that the CRB did not exercise its broad discretion in an arbitrary or capricious manner when setting royalty rates for satellite digital audio radio services and preexisting subscription services.
For satellite digital audio radio services, the rate was set at 11%; in order to avoid disruption, the CRB adopted a staggered schedule beginning at 9% in 2013 and increasing by 0.5% annually until achievement of 11% in 2017.
For preexisting subscription services, the rate was set at 8.5% with an upward adjustment for Music Choice's planned channel expansion. The rate would start at 8% in 2013 and increase to 8.5% for 2014 through 2017.
November 30, 2014
New York Common Law Protects Public Performance of Pre-1972 Sound Recordings; NY Federal Court Joins California Federal Court
Flo & Eddie, Inc. v. Sirius XM, Inc., No. 1:13-cv-05784 (S.D.N.Y. filed Nov. 14, 2014) [Doc. 88].
Joining a California federal court in a parallel case, a New York federal court found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. "In short, general principles of common law copyright dictate that public performance rights in pre-1972 sound recordings do exist. New York has always protected public performance rights in works other than sound recordings that enjoy the protection of common law copyright. Sirius suggests no reason why New York -- a state traditionally protective of performers and performance rights -- would treat sound recordings differently."
First, the court found that plaintiff holds valid common law copyrights in the Turtles' sound recordings. "The Turtles originally acquired a common law copyright in their sound recordings by expending time, effort, money and skill to create them. That copyright was then transferred...eventually to Flo and Eddie, which now owns the sound recordings."
Second, the Court found that Flo and Eddie's common law copyright provides exclusive rights to reproduce and publicly perform Turtles recordings. As to the absence of prior litigation on the matter, "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." The court did not read too much into the fact that New York courts have never squarely addressed this particular feature of state copyright law in the context of sound recordings.
Third, the Court found that Sirius infringed plaintiff's common law copyright and engaged in unfair competition (misappropriation). In reproducing Turtles recordings, Sirius acted without authorization. Further, to the extent that distribution is an element of common law copyright, the Court found that publicly performing sound recordings is an act of distribution.
Moreover, even though the Court found that there is a common law fair use defense parallel to the federal fair use defense, Sirius XMs creation of multiple complete copies of the sound recordings could not be considered a fair use. "It is a matter of economic commons sense that Sirius harms Flo and Eddie's sales and potential licensing fees (even if the latter market is not yet extant) by publicly performing Turtles sound recordings."
Lastly, the Court rejected Sirius XM's argument that plaintiff's claims are barred by the constitutional Dormant Commerce Clause, which provides that states may not interfere with interstate commerce. U.S. Const. art. I, sec. 8. The court found that the argument is a "red herring" because New York does not "regulate" anything by recognizing common law copyright. Sirius objects to a "general principle respecting the liability of all persons within the jurisdiction of" New York, which under the 1876 (yes, 1876) Supreme Court decision Sherlock v. Alling, 93 U.S. 99, is not a state-imposed regulation that might affect interstate commerce.
Joining a California federal court in a parallel case, a New York federal court found that Flo & Eddie (the Turtles) have state common law claims against Sirius XM concerning the public performance of pre-1972 sound recordings. "In short, general principles of common law copyright dictate that public performance rights in pre-1972 sound recordings do exist. New York has always protected public performance rights in works other than sound recordings that enjoy the protection of common law copyright. Sirius suggests no reason why New York -- a state traditionally protective of performers and performance rights -- would treat sound recordings differently."
First, the court found that plaintiff holds valid common law copyrights in the Turtles' sound recordings. "The Turtles originally acquired a common law copyright in their sound recordings by expending time, effort, money and skill to create them. That copyright was then transferred...eventually to Flo and Eddie, which now owns the sound recordings."
Second, the Court found that Flo and Eddie's common law copyright provides exclusive rights to reproduce and publicly perform Turtles recordings. As to the absence of prior litigation on the matter, "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." The court did not read too much into the fact that New York courts have never squarely addressed this particular feature of state copyright law in the context of sound recordings.
Third, the Court found that Sirius infringed plaintiff's common law copyright and engaged in unfair competition (misappropriation). In reproducing Turtles recordings, Sirius acted without authorization. Further, to the extent that distribution is an element of common law copyright, the Court found that publicly performing sound recordings is an act of distribution.
Moreover, even though the Court found that there is a common law fair use defense parallel to the federal fair use defense, Sirius XMs creation of multiple complete copies of the sound recordings could not be considered a fair use. "It is a matter of economic commons sense that Sirius harms Flo and Eddie's sales and potential licensing fees (even if the latter market is not yet extant) by publicly performing Turtles sound recordings."
Lastly, the Court rejected Sirius XM's argument that plaintiff's claims are barred by the constitutional Dormant Commerce Clause, which provides that states may not interfere with interstate commerce. U.S. Const. art. I, sec. 8. The court found that the argument is a "red herring" because New York does not "regulate" anything by recognizing common law copyright. Sirius objects to a "general principle respecting the liability of all persons within the jurisdiction of" New York, which under the 1876 (yes, 1876) Supreme Court decision Sherlock v. Alling, 93 U.S. 99, is not a state-imposed regulation that might affect interstate commerce.
September 23, 2014
California Law Protects Public Performance Right In Pre-1972 Sound Recordings; Turtles Granted Summary Judgment Against Sirius
Flo & Eddie Inc. v. Sirius XM Radio Inc., et al., No. 2:13-cv-05693-PSG-RZ (C.D. Cal. filed Sep. 22, 2014) (Doc. 117).
Plaintiff, owner of all rights to The Turtles’ master sound recordings (including the hit "Happy Together"), was granted summary judgment against Sirius XM on its causes of action for violation of California
copyright law (California Civil Code § 980(a)(2)), California’s Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.), and common law misappropriation and conversion, but only so far as the claims were premised on Sirius XM’s public performance of Plaintiff's recordings, not its alleged reproductions for which there were outstanding questions of fact.
Plaintiff argued that Sirius XM was liable for two distinct unauthorized uses of its sound recordings: (1) publicly performing its recordings by broadcasting and streaming the content to end consumers and to secondary delivery and broadcast partners, and (2) reproducing the recordings in the process of operating its satellite and Internet radio services. Plaintiff contended that, in California, copyright ownership of a pre-1972 sound recording includes the exclusive right to publicly perform the recording; therefore, if anyone wishes to publicly perform such a recording, they must first seek authorization from the recording’s owner. The Court agreed.
First, the Court found that California statutory and common law governs the rights that attach to pre-1972 sound recordings because the Federal Copyright Act does not apply to those earlier recordings and explicitly allows states to continue to regulate them. Second, the Court examined the provision of California’s copyright statute that contains a provision directly addressing pre-1972 sound recordings. Cal. Civ. Code § 980(a)(2) ("The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047, as against all persons except one who independently makes or duplicates another sound recording that does not directly or indirectly recapture the actual sounds fixed in such prior recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound
recording").
The crucial point of statutory interpretation for this case was whether “exclusive ownership” of a sound recording carries within it the exclusive right to publicly perform the recording. The Court’s textual reading of § 980(a)(2) was that the legislature intended ownership of a sound recording in California to include all rights that can attach to intellectual property, save the singular, expressly-stated exception for making “covers” of a recording.
The Court further found that the rule of statutory construction requiring express statements to alter the common law did not apply because, when the legislature passed § 980(a)(2), there was no common law rule in California rejecting public performance rights in sound recording ownership. Also, the legislative history of § 980(a)(2) and its comparison to the Federal Copyright Act bolstered the Court’s plain textual reading of the statute that sound recording ownership is inclusive of all ownership rights that can attach to intellectual property, including the right of public performance, excepting only the limited right expressly stated in the law (that the owner does not have the exclusive right to record and duplicate “covers"). Lastly, the Court found further support for its textual reading of the statute as inclusive of the right of public performance from the only two courts that have ruled on or discussed this right under § 980(a)(2). Accordingly, the Court granted summary judgment on copyright infringement in violation of § 980(a)(2) in favor of Plaintiff.
Borrowing the violation of § 980, the Court found that Sirius also violated California's Unfair Competition Law because Sirius publicly performs Plaintiff's sound recordings without authorization to do so. Also, the Court found that Sirius XM’s unauthorized performances established conversion damages in the form of license fees that Sirius XM should have paid Plaintiff in order to publicly perform its recordings. The foregone licensing or royalty payments that Sirius XM should have paid before publicly performing the recordings also constituted misappropriation.
Lastly, the Court found that Sirius could not rely on the doctrine of laches because this was an action at law seeking money damages, and laches is an equitable defense. Accordingly, the Court granted Plaintiff's motion for summary judgment on all causes of action, but only so far as the claims are premised on Sirius XM’s public performance of the recordings, not its alleged reproductions.
Plaintiff, owner of all rights to The Turtles’ master sound recordings (including the hit "Happy Together"), was granted summary judgment against Sirius XM on its causes of action for violation of California
copyright law (California Civil Code § 980(a)(2)), California’s Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.), and common law misappropriation and conversion, but only so far as the claims were premised on Sirius XM’s public performance of Plaintiff's recordings, not its alleged reproductions for which there were outstanding questions of fact.
Plaintiff argued that Sirius XM was liable for two distinct unauthorized uses of its sound recordings: (1) publicly performing its recordings by broadcasting and streaming the content to end consumers and to secondary delivery and broadcast partners, and (2) reproducing the recordings in the process of operating its satellite and Internet radio services. Plaintiff contended that, in California, copyright ownership of a pre-1972 sound recording includes the exclusive right to publicly perform the recording; therefore, if anyone wishes to publicly perform such a recording, they must first seek authorization from the recording’s owner. The Court agreed.
First, the Court found that California statutory and common law governs the rights that attach to pre-1972 sound recordings because the Federal Copyright Act does not apply to those earlier recordings and explicitly allows states to continue to regulate them. Second, the Court examined the provision of California’s copyright statute that contains a provision directly addressing pre-1972 sound recordings. Cal. Civ. Code § 980(a)(2) ("The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047, as against all persons except one who independently makes or duplicates another sound recording that does not directly or indirectly recapture the actual sounds fixed in such prior recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound
recording").
The crucial point of statutory interpretation for this case was whether “exclusive ownership” of a sound recording carries within it the exclusive right to publicly perform the recording. The Court’s textual reading of § 980(a)(2) was that the legislature intended ownership of a sound recording in California to include all rights that can attach to intellectual property, save the singular, expressly-stated exception for making “covers” of a recording.
The Court further found that the rule of statutory construction requiring express statements to alter the common law did not apply because, when the legislature passed § 980(a)(2), there was no common law rule in California rejecting public performance rights in sound recording ownership. Also, the legislative history of § 980(a)(2) and its comparison to the Federal Copyright Act bolstered the Court’s plain textual reading of the statute that sound recording ownership is inclusive of all ownership rights that can attach to intellectual property, including the right of public performance, excepting only the limited right expressly stated in the law (that the owner does not have the exclusive right to record and duplicate “covers"). Lastly, the Court found further support for its textual reading of the statute as inclusive of the right of public performance from the only two courts that have ruled on or discussed this right under § 980(a)(2). Accordingly, the Court granted summary judgment on copyright infringement in violation of § 980(a)(2) in favor of Plaintiff.
Borrowing the violation of § 980, the Court found that Sirius also violated California's Unfair Competition Law because Sirius publicly performs Plaintiff's sound recordings without authorization to do so. Also, the Court found that Sirius XM’s unauthorized performances established conversion damages in the form of license fees that Sirius XM should have paid Plaintiff in order to publicly perform its recordings. The foregone licensing or royalty payments that Sirius XM should have paid before publicly performing the recordings also constituted misappropriation.
Lastly, the Court found that Sirius could not rely on the doctrine of laches because this was an action at law seeking money damages, and laches is an equitable defense. Accordingly, the Court granted Plaintiff's motion for summary judgment on all causes of action, but only so far as the claims are premised on Sirius XM’s public performance of the recordings, not its alleged reproductions.
August 27, 2014
SoundExchange/Sirius Royalty Dispute Belongs Before Copyright Royalty Board, Not Federal Court
SoundExchange, Inc. v. Sirius XM Radio, Inc., No. 1:13-cv-1290 (D.D.C. filed August 26, 2014).
Pursuant to the "primary jurisdiction" doctrine, a federal district court judge stayed a royalties dispute between SoundExchange and Sirius, saying that the dispute belongs before the Copyright Royalty Board. The parties already had met before the CRB in two prior proceedings, setting royalty rates for the digital broadcast of sound recordings on satellite radio SoundExchange brought an action in federal court alleging that Sirius underpaid royalties owed from 2007-2012 (the subject of the first CRB proceeding). The instant dispute centered on the meaning of the term "Gross Revenues" (a percentage of which are the royalties owed SoundExchange), and Sirius's alleged reductions/exclusions therefrom based on pre-72 recordings and Sirius' premiere subscriber package. The Court agreed with Sirius that the disputes "are best suited to review in the first instance by the CRB. ... [T]he technical and policy expertise of the CRB makes referral to that body appropriate." Because neither party was asking for a change in the royalty rates, only a clarification, the CRB was found to have continuing jurisdiction.
Pursuant to the "primary jurisdiction" doctrine, a federal district court judge stayed a royalties dispute between SoundExchange and Sirius, saying that the dispute belongs before the Copyright Royalty Board. The parties already had met before the CRB in two prior proceedings, setting royalty rates for the digital broadcast of sound recordings on satellite radio SoundExchange brought an action in federal court alleging that Sirius underpaid royalties owed from 2007-2012 (the subject of the first CRB proceeding). The instant dispute centered on the meaning of the term "Gross Revenues" (a percentage of which are the royalties owed SoundExchange), and Sirius's alleged reductions/exclusions therefrom based on pre-72 recordings and Sirius' premiere subscriber package. The Court agreed with Sirius that the disputes "are best suited to review in the first instance by the CRB. ... [T]he technical and policy expertise of the CRB makes referral to that body appropriate." Because neither party was asking for a change in the royalty rates, only a clarification, the CRB was found to have continuing jurisdiction.
December 18, 2012
Satellite Radio Royalty Rate Hike Reported
Sirius XM reports in an EDGAR filing:
"On December 14, 2012, the Copyright Royalty Board, or CRB, of the Library of Congress issued its determination regarding the royalty rate payable by us under the statutory license covering the performance of sound recordings over our satellite digital audio radio service, and the making of ephemeral (server) copies in support of such performances, for the five-year period starting January 1, 2013 and ending on
December 31, 2017. Under the terms of the CRB’s decision, we will pay a royalty of 9.0% of gross revenues, subject to certain exclusions, for 2013, 9.5% for 2014, 10.0% for 2015, 10.5% for 2016, and 11% for 2017. The rate for 2012 is 8.0%."
"On December 14, 2012, the Copyright Royalty Board, or CRB, of the Library of Congress issued its determination regarding the royalty rate payable by us under the statutory license covering the performance of sound recordings over our satellite digital audio radio service, and the making of ephemeral (server) copies in support of such performances, for the five-year period starting January 1, 2013 and ending on
December 31, 2017. Under the terms of the CRB’s decision, we will pay a royalty of 9.0% of gross revenues, subject to certain exclusions, for 2013, 9.5% for 2014, 10.0% for 2015, 10.5% for 2016, and 11% for 2017. The rate for 2012 is 8.0%."
March 25, 2008
XM / Sirius Merger Approved by DOJ
Antitrust concerns assuaged: The Justice Department on Monday approved Sirius Satellite Radio Inc.'s proposed $5 billion buyout of rival XM Satellite Radio Holdings Inc. (AP report.)
The merger, however, still awaits FCC approval.
The merger, however, still awaits FCC approval.
December 12, 2007
XM Free from SEC
XM Satellite Radio announced that the Securities and Exchange Commission ended its investigation into the satellite radio company, and the SEC doesn't intend to recommend enforcement action.
The inquiry came after a putative class action was filed against XM, alleging XM failed to provide investors with certain information.
The inquiry came after a putative class action was filed against XM, alleging XM failed to provide investors with certain information.
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