Sirius XM Hit Again Over Pre-1972 Recordings

from the convinced-by-the-other-ruling dept

A few weeks ago, we wrote about how Sirius XM had lost its case concerning the public performance rights over pre-1972 sound recordings by the band The Turtles. As we noted, this ruling effectively upset decades of consensus about public performance rights for pre-1972 works. When that ruling came out, we noted that the judge, in a nearly identical case brought by the RIAA, appeared to be leaning in the opposite direction. It appears that the judge, Mary Strobel, read the other ruling and found it convincing enough to lean back in the other direction. While not a final determination in the case, Strobel has issued a ruling (pdf) that makes it pretty clear that Sirius XM is likely to lose, based on her agreement with that other ruling.
Having considered the additional authority, the papers submitted and arguments of counsel, the court is persuaded that it should change its tentative ruling.
The ruling itself is more of an essay of "on the one hand, on the other hand" arguments, rather than a typical judicial ruling (in many ways making it more readable), with the judge more or less suggesting that she's not entirely comfortable with this outcome, but that based on the plain language of California's state copyright law, this is the best way to read the law.

Of course, the real mess here is because of the different treatment of pre-1972 recordings. Congress should have fixed this years ago by just making pre-1972 recordings subject to federal copyright law. Except... the recording industry has actually fought hard against this. The hypocrisy here is huge. While the recording industry has fought so hard against making pre-1972 sound recordings subject to federal copyright laws, now they suddenly want aspects of federal copyright law (like public performance rights which did not exist under previous laws) to apply to those very same works. If Congress made it so those works were under federal copyright, there wouldn't be an issue and all these works would be treated identically. But the truth is that the RIAA wants to keep these works out of federal copyright law to use them as a weapon against internet innovation. With rulings like these, it can hold companies like Pandora hostage, since those works wouldn't be subject to compulsory rates. As always, it's all about the RIAA seeking to hold back innovative services unless they'll go bankrupt in paying the RIAA.

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  • icon
    That One Guy (profile), 16 Oct 2014 @ 7:37pm

    The companies being slammed by the courts here should just drop pre-1972 songs from their line-ups entirely, and replace them with a 'Thanks to recent court rulings, we are no long able to provide music produced before this date due to legal issues regarding their use in our service. If you would like to learn more, please visit our site for more information' message.

    RIAA and others want to have it both ways, where the older songs get all the benefits of federal copyright law, but don't have to deal with any of the 'downsides'? Remove the affected music from the services entirely, and then listen to them scream in protest.

    reply to this | link to this | view in chronology ]

    • icon
      OldGeezer (profile), 16 Oct 2014 @ 10:43pm

      Re:

      Just like the hypocrisy of the German news outlets when Google eliminated all but the headlines from their listings. Google did not go far enough. They should have completely blocked Germany from their listings and taken down all German artists from YouTube. Close out all German Gmail accounts too.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 16 Oct 2014 @ 10:54pm

        Re: Re:

        ...taken down all German artists from YouTube.

        No need, GEMA's already got that covered.

        reply to this | link to this | view in chronology ]

        • icon
          OldGeezer (profile), 16 Oct 2014 @ 11:34pm

          Re: Re: Re:

          The extent they have gone to with YouTube is ridiculous. I became a fan of the Ukrainian artist Assol after discovering her on YouTube. I posted an hour long concert video of her and soon it was blocked in Germany. At first I couldn't figure out why and then I discovered that in a 30 second segment between songs some dancers performed to a German artist. Perhaps this might give them some tiny claim to monetize it, but instead they just blocked it completely. Thanks to the internet I can enjoy some incredible music even though I can't understand a word of Russian. I bought one of her CDs, a sale they would have not made if she was blocked in the US.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Oct 2014 @ 6:11am

        Re: Re:

        And don't forget to make invisible all those nutters from France, too.

        reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 17 Oct 2014 @ 2:51am

      Re:

      That. It's about time those services started promoting indie artists or those not connected to the MAFIAA and simply drop the songs that get entangled into copymoron disputes. Seriously I wonder why none of the big internet players have thought about it. Netflix is going this way even producing content themselves. The MAFIAA can lick my arse, if they don't want me to have easy access to their content then I will assume it doesn't exist. It's been over an year I completely ditched anything that is MAFIAA related (unless, of course it's on Netflix).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 9:29pm

    So here we have a case of RIAA and the copyright cartel making a clear statement that they don't care about culture at all. If they did care about culture, this wouldn't be happening.
    This renders any argument that they make for pro-culture absolutely meaningless and they should absolutely be held to that each and every time they try to suggest it.

    And at the same time, everyone needs to take a hard look at copyright law and ask themselves what the real purpose is for and if current copyright is following that purpose.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 9:51pm

    Just another reminder of the problems of repeated and never-ending copyright term extensions.

    reply to this | link to this | view in chronology ]

  • icon
    OldGeezer (profile), 16 Oct 2014 @ 10:03pm

    Doen't make economic sense

    I was a teenager in the 60's and The Turtles were one of my favorite bands. They had several great hits and I'm sure they earned millions for the labels. I have to wonder in the nearly 50 years since then if they have brought in a tiny fraction of that since they fell of the charts. Ask anyone under 40 if they ever heard of them. In my days the labels realized correctly that airplay=sales and there was the payola scandal where they were paying DJ's to put recordings in the rotation. Because of their greed now some really great music will fade into oblivion and never make them another dime. Just another example of copyright destroying culture. Even the oldies stations are phasing out the 60's. There will be no new fans for most of the music of my era. When my son was in his teens in the late 90's I shared my CD's with him and he became a fan of many of the same bands from when I was that age. Much of it will not be public domain until my great grandchildren are in their 50's.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 16 Oct 2014 @ 11:22pm

      Re: Doen't make economic sense

      "Much of it will not be public domain until my great grandchildren are in their 50's."

      If the maximalists have their way, it will *never* appear. All culture will either be beholden to a corporate fee, or never be legally distributed again (say goodbye to any music you love if it's a orphaned work or deemed uncommercial by the majors for future consumption). This is why we fight now.

      "Even the oldies stations are phasing out the 60's."

      I do wonder how much this has to do with copyright, and how much of it is simple demographic shift. The appeal of "oldies" has usually been for people listening to the music of their formative years. If you were listening to 60s "oldies" in the late 90s, then there was around 30 years between you listening and the recording. Applying that gap today means that people are listening to music from the late 70s and early 80s. The station have to shift with their listening demographic, and someone whose formative years were in the late 70s are as likely to connect with the music of the early 60s as you would have been with music from the 40s.

      That's not to say there wasn't fantastic music made in the 60s, nor that it deserves to fade away, only that the business model that served 60s music to you now serves 70s/80s music for the same reasons. This would happen with or without copyright, though I admit that the shift might be sped up by doubt over the legality of pre-1972 music.

      reply to this | link to this | view in chronology ]

      • icon
        OldGeezer (profile), 16 Oct 2014 @ 11:47pm

        Re: Re: Doen't make economic sense

        Yes, the demographic shifts but that does not mean today's young people cannot enjoy the music of my youth. Before I retired some of my coworkers were barely out of their teens. I found that many black young people were big fans of the great Motown stars of the 60's. When I would ask them why they would tell me that their parents and grandparents played it for them all the time as they grew up. Perhaps blacks are just better at passing on their culture.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 17 Oct 2014 @ 1:44am

          Re: Re: Re: Doen't make economic sense

          Ah, you see this is why i was trying to be careful with my comment, sorry if you misunderstood. Of course, there's fantastic music from every era, and a person is wise to take a look at every decade. My point was only that the trend for "oldies" to be moving away from the 60s may well be something that's happening anyway, with or without copyright fears.

          When my parents listened to oldies shows on a Sunday morning during the late 80s, they usually weren't listening to 40s/50s music, so it's logical that someone listening to oldies now are more interested in 70s/80s. The radio stations meet this demand accordingly. If their listeners are more interested in listening to ABBA and Queen than they are to your favoured 60s output, they will move in that direction.

          "I found that many black young people were big fans of the great Motown stars of the 60's."

          As was I at that age, among many other things (and I'm both very white and English). I also got into a lot of other 60s music later on in life (I always found The Beatles overrated, but I found a love for Hendrix and The Doors in my late teens). I was influenced by what my parents listened to, and that manifested itself in a hatred of the likes of Michael Bolton as it did in a love of other music of the era that matched my tastes.

          "Perhaps blacks are just better at passing on their culture."

          You're definitely veering away from a conversation I want to have if you're going to colour this in racial terms. There's great music and terrible music, regardless of the race of the person creating it.

          reply to this | link to this | view in chronology ]

          • icon
            OldGeezer (profile), 17 Oct 2014 @ 3:44am

            Re: Re: Re: Re: Doen't make economic sense

            No intention of being racist. The truth is that the popularity of black artists played at least a small role in breaking down racial roadblocks in that era.

            reply to this | link to this | view in chronology ]

  • identicon
    Tom Mink, 17 Oct 2014 @ 12:19am

    Not just oldies

    Classic rock will be harder hit if pre-1972 recordings are off limits. Oldies at least reflect demographics, but classic rock has some genre staples that are likely to stick around-- Beatles, Rolling Stones, Led Zeppelin, Black Sabbath, Hendrix, Grateful Dead, The Who, etc-- of which quite a lot of their radio hits are pre-1972.

    Though, now that I consider the standard playlist I realize that the older works played now tend to be British, which would likely make them subject to US federal copyright and wouldn't get caught up in this confusion.

    reply to this | link to this | view in chronology ]

    • icon
      OldGeezer (profile), 17 Oct 2014 @ 12:55am

      Re: Not just oldies

      How often do you hear any of these A-list artist's tracks used in movies and TV series? I was shocked when I actually heard a real Beatles song on "Mad Men". This series must have struck some special deal to use so many original hits because most of the time all you hear are covers and lesser known artists. "The Sopranos" are one of the few other exceptions. CSI uses The Who for a theme but very few other well known artists. The big hits are mostly priced out of the market. When "Married With Children" came out on DVD most seasons used a "sounds like" instrumental theme because a 50 year old song by a long dead Frank Sinatra was too expensive to license.

      reply to this | link to this | view in chronology ]

  • identicon
    Andyroo, 17 Oct 2014 @ 2:13am

    Damn!!!!

    Ok there is no sence to this rulling, pre 172 usic is free of copyright by law, there is no reason anybody cannot create a music website and charge people a small fee to liste to oldies music.

    If anything the court is ignoring the law as it stands and the MPAA ad IRAA and all their cohorts needs to be punished if they claim any copyright on pre 1972 music.

    The only reason i can see for them doing this is that they want people to move on to newer music and pay for the pleasure.

    I just hope that soon the courts will just decide that anything pre 1972 is free for everyone to use even to profit from if they can.In fact the law must be changed so that anyone can profit of of any music created if it is more than 5 years old

    The media moguls want to make the whole copyright issue as complicated as they can while all it should be is a simple three or four sentence law and where anyone having copyright over any music gets paid through a vetted agency that gets all royalties and distributes at least 98% of the money collected to the artists, actually it should be a non profit where the workers receive a reasonable but not crazy wage.When we have collection agencies taking 99.99% of income the system is a failure.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 17 Oct 2014 @ 3:25am

    Search the internet far and wide, and you'll never find people angrier about musicians getting paid than the folks here at Techdirt.

    reply to this | link to this | view in chronology ]

  • identicon
    the threat to peace is the USA, 17 Oct 2014 @ 3:44am

    riaa = music terrorist

    riaa = music terrorist
    riaa = music terrorist
    riaa = music terrorist

    reply to this | link to this | view in chronology ]

  • icon
    antidirt (profile), 17 Oct 2014 @ 6:19am

    As we noted, this ruling effectively upset decades of consensus about public performance rights for pre-1972 works.

    This claim is really strange. The issue here is whether there's a statutory right to publicly perform in California. There is no "consensus" either way. This isn't about the common law. This is about a particular statute in California passed in 1982, namely, Section 980(a)(2). Can you explain why you think there's a "consensus" as to whether this statute provides this right? (Rhetorical question. I know you can't and/or won't answer and/or back up what you post.)

    reply to this | link to this | view in chronology ]

  • icon
    antidirt (profile), 17 Oct 2014 @ 6:25am

    But the truth is that the RIAA wants to keep these works out of federal copyright law to use them as a weapon against internet innovation. With rulings like these, it can hold companies like Pandora hostage, since those works wouldn't be subject to compulsory rates. As always, it's all about the RIAA seeking to hold back innovative services unless they'll go bankrupt in paying the RIAA.

    Wow. How does this hold back innovation? Sirius XM or Pandora can innovate as much as they want. They just can't play certain songs in California. Exaggerate much? (Again, rhetorical. We both know you don't explain your FUD.)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Oct 2014 @ 6:46am

      Re:

      When will you and the RIAA/MPAA learn that the Internet is global? If its on the Internet is should be available to anybody, anywhere in the World, and trying to limit access by any form of regional geography is a stupid exercise as such constraints are easily bypassed.

      reply to this | link to this | view in chronology ]

    • icon
      OldGeezer (profile), 17 Oct 2014 @ 6:47am

      Re:

      Certain songs?!! We're talking about every song up to my 20th birthday. The very foundations that inspired millions of works since then. So, no Elvis, Buddy Holly, Beatles, Hendrix, Sinatra, early Stones, Doors, Beach Boys etc? Rock was born in the 50's, not 1972.

      reply to this | link to this | view in chronology ]

      • icon
        antidirt (profile), 17 Oct 2014 @ 7:44am

        Re: Re:

        Certain songs?!! We're talking about every song up to my 20th birthday. The very foundations that inspired millions of works since then. So, no Elvis, Buddy Holly, Beatles, Hendrix, Sinatra, early Stones, Doors, Beach Boys etc? Rock was born in the 50's, not 1972.

        They'll need licenses for those songs in California, assuming these rulings are upheld. But I still don't see how obtaining a license means they can't innovate. Can you explain it?

        reply to this | link to this | view in chronology ]

        • icon
          OldGeezer (profile), 17 Oct 2014 @ 8:42am

          Re: Re: Re:

          California and then separately for the other 49 states. And also separately with each label and sometimes even with individual artists. Public over the air radio stations pay one simple fee that covers everything. They want to force this licensing nightmare to try to squeeze more money out of new innovators. Exposure in any form is promotion for them that leads to more sales. They should make the process easier and charge reasonable fees to help new innovations thrive, not blackmailing them into bankruptcy.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Oct 2014 @ 10:28am

          Re: Re: Re:

          "They'll need licenses for those songs in California,
          assuming these rulings are upheld. But I still don't see how obtaining a license means they can't innovate. Can you explain it?"

          Sure, be glad to. The rightsholders are not obligated to give *anyone* a license. So they can just say "fuck you."

          They are also not obligated to make a license in any way reasonable for the licensee. They can (and do) ask outrageous sums ($8 *grand* to use a snippet of a song in a *documentary*? PER SONG? SERIOUSLY???) see also Pandora (where they are pretty much taking 90% of the profit of the company for "Fees" and think its "fair.) and numerous other examples.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Oct 2014 @ 8:04am

    It think all the music services being extorted should band together on this block the artist and song completely from all services show them who has the upper hand.

    reply to this | link to this | view in chronology ]

  • identicon
    RD, 17 Oct 2014 @ 10:20am

    Bought & Paid For

    The ruling itself is more of an essay of "bought and paid for judiciary" arguments, rather than a typical judicial ruling (in many ways making it more readable), with the judge more or less suggesting that she's not entirely comfortable with this outcome, but that based on the plain language of California's state copyright law and generous "donations" by Big Media rightsholders and the RIAA, this is the best way to read the law.

    ftfy.

    reply to this | link to this | view in chronology ]

  • icon
    JWW (profile), 17 Oct 2014 @ 11:31am

    Attention

    Attentions Sixties on 6 listeners, due to occurrences beyond our control Sirius/XM will be launching our new station "Screaming Death Metal" on channel 6.

    reply to this | link to this | view in chronology ]

  • icon
    OldGeezer (profile), 17 Oct 2014 @ 12:01pm

    Providers and artists could be "Happy Together" but it looks like my favorite music is on "The Eve of Destruction"! ☺

    reply to this | link to this | view in chronology ]


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