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Pandora loses latest pre-1972 squabble

By | Published on Friday 27 February 2015


Sometimes it feels like we need a standalone correspondent to just cover Pandora litigation. The often controversial (in some quarters) company is sort of the Michael Jackson of digital music when it comes to fighting concurrent legal battles.

The streaming service’s legal fights to lower the royalties it pays both labels (via SoundExchange) and the music publishers (via BMI and ASCAP) are ongoing, of course. And then there are the disputes over pre-1972 recordings, which are not directly governed by federal copyright law in the US (state law does the protecting instead).

Because Pandora’s obligations to pay royalties to the labels stem from US-wide federal law, it – and others – have argued that online and satellite radio-style services are not obliged to pay the record companies any money when they play records that pre-date 1972.

Which might seem like an odd argument, except, of course, in America AM and FM radio stations don’t pay royalties to labels on any of the sound recordings they play, whether those tracks are protected by federal or state law.

But labels, artists and SoundExchange itself have argued that there is an obligation for online and satellite services to pay royalties when they play older recordings, mainly because there is a ‘public performance’ element to the sound recording copyright in state law, even though state laws are generally vague on the matter, and labels have never previously exploited any public performance right in the US under those state regulations.

Leading the charge here are Flo & Eddie, two members of 1960s band The Turtles. And last year they scored a win in the Californian courts against satellite radio service Sirius, prompting them to sue Pandora on the same arguments.

And it’s in that domain that there was an important development this week. Pandora quickly tried to have the Flo & Eddie lawsuit dismissed by filing what’s known as an anti-SLAPP motion. Anti-SLAPPs are used when a defendant believes they are being targeted with litigation to force their hand or to censor them in some way. The Anti-SLAPPer is usually accusing the litigant of having no desire to see the lawsuit get to court, rather they hope the pressure of litigation will help them get their way.

It always seemed like an ambitious move on Pandora’s part, which said that Flo & Eddie’s attempts to stop them playing the duo’s music was an attack on the firm’s free speech rights. And the judge hearing the case, Philip S Gutierrez, who also ruled on the Sirius legal action, this week knocked the claim back. He said that Flo & Eddie’s lawsuit contained arguments that were “meritorious enough to withstand the anti-SLAPP motion”.

Pandora, however, will appeal. Which will force the matter to another court, which might have been the digital firm’s plan all along, given that it¬†knows what Gutierrez’s opinions are on this matter as a result of the Sirius litigation, and might be hoping for a more friendly judge in another courtroom.

There are, of course, multiple lawsuits rumbling on regarding this issue, and in multiple states. The US Copyright Office recently said that it thinks federal copyright law should just be applied to pre-1972 recordings to overcome all these ambiguities. And despite fighting the pre-1972 litigation at a state level, Pandora has indicated it might support that move, providing any new restrictions were applied across the board.