Overview
In an opinion Friday, Judge McMahon denied the satellite radio company Sirius’s motion for summary judgment in a proposed class action by members of the band The Turtles asserting New York common law copyright claims for songs recorded prior to the 1972 federal Copyright Act, which preempted later state law claims. Further, since it appeared the facts were not in dispute, Judge McMahon ordered Sirius to show cause by December 5 why summary judgment should not be entered against it. Judge McMahon recognized that her ruling (and a recent similar one in California) would likely cause great disruption to satellite radio providers and others who have generally not paid to broadcast pre-1972 recordings, but said that those concerns should be directed to the legislative branches of government:
Sirius is correct that this holding is unprecedented (aside from the companion California case, which reached the same result), and will have significant economic consequences. Radio broadcasters -- terrestrial and satellite -- have adapted to an environment in which they do not pay royalties for broadcasting pre-1972 sound recordings. Flo and Eddie's suit threatens to upset those settled expectations. Other broadcasters, including those who publicly perform media other than sound recordings, will undoubtedly be sued in follow-on actions, exposing them to significant liability. And if different states adopt varying regulatory schemes for pre-1972 sound recordings, or if holders of common law copyrights insist on licensing performance rights on a state-by-state basis (admittedly, an unlikely result, since such behavior could well cause broadcaster to lose interest in playing their recordings) it could upend the analog and digital broadcasting industries. But in the end, all this case presents me with is a suit between private parties seeking to vindicate private property rights -- not a challenge to state regulation. That lawsuit can and will be resolved on its merits. The broader policy problems are not for me to consider. They are the province of Congress, the New York Legislature, and perhaps the New York Court of Appeals.Our prior posts on the case are here.
