In recent news ...
Turtles Litigation Notches New York Win
On Nov. 14 the Southern District of New York's U.S. District Court ruled against SiriusXM's motion for summary judgment in the Turtles trial over unpaid pre-1972 royalties, based on New York state law. "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," wrote District Judge Colleen McMahon. "But in the end, all this case presents me with is a suit between private parties seeking to vindicate private property rights." McMahon gave SiriusXM until Dec. 5 to raise remaining issues about liability, after which she will grant summary judgment to former Turtles members' Flo & Eddie (Mark Volman and Howard Kaylan) and proceed to consider the extent of damages. Three cases were originally brought under state law in California, Florida and New York in 2013 by Flo & Eddie as class actions, claiming unpaid royalties under state law for recordings from before 1972, the year that newly recorded performances became governed by federal copyright. Flo & Eddie notched a California win in September in federal court, followed by a supporting October ruling in California state court on record labels' lawsuit against SiriusXM over the same issue. Similar cases against Pandora are pending, including one in New York brought by the labels and one in California initiated by Flo & Eddie. The list of potential defendants for additional lawsuits stretches beyond Pandora and SiriusXM. In an interview with Communications Daily this week, Recording Academy Chief Advocacy & Industry Relations Officer Daryl P. Friedman said there's a "long legal journey still ahead, but this is trending very well for artists," adding that Congress will likely view the progress and be prompted to draft uniform laws for sound recordings and performance royalties. Separately, on Nov. 20 the federal judge in the California Flo & Eddie action denied a motion from the new SiriusXM legal team to certify an interlocutory appeal. The lawsuit is expected to move forward to deal with class certification and determination of damages, and SiriusXM could appeal despite the ruling.
Congressional Endings, Beginnings And IP
Highlights of this post-election period, for intellectual property in Congress, include Rep. Bob Goodlatte's (R-Va.) selection on Nov. 19 as continuing chairman of the House Judiciary Committee in next year's incoming Congress. Goodlatte addressed the U.S. Chamber of Commerce's 2nd Annual Global IP Summit on Nov. 18 and reflected on his committee's work reviewing copyright. "The copyright review has not yet concluded so it is too early to draw any definitive conclusions about the committee's next steps," said Goodlatte. "However as our formal hearings draw to a close, the committee will be seeking your input on what should, and what should not, be improved within our nation's copyright laws." Separately, on Nov. 17 the Creative Rights Caucus announced that Rep. Judy Chu (D-Calif.) will be joined by Rep. Doug Collins (R-Ga.) in 2015 as co-chair, following current co-chair Howard Coble's (R-N.C.) retirement. The House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet held the last of its copyright review hearings on Nov. 19 on "Copyright Issues In Education And For The Visually Impaired." Both the caucus and the subcommittee, which has been chaired by Coble, expressed effusive thanks for his years of public service. During the hearing, Association of American Publishers General Counsel Allan Adler called on the Copyright Office to provide guidance on fair use as recent court decisions have expanded the defense in unexpected ways. Other witnesses present included representatives from Copyright Clearance Center, National Federation for the Blind and the University of Michigan. There was consensus that a system of guidelines, for fair use in higher education and academic publishing, granting something like safe harbor protection would be useful provided that it was not used to restrict fair use as it works today.
Still On The To-Do List: Passing Felony Streaming Legislation
On Nov. 19 the White House replied to two online petitions by reiterating the administration's support for new statutory copyright language to treat criminal infringement by streaming as a felony similar to criminal infringement by downloading. Describing this effort as a "rational, straightforward update," Intellectual Property Enforcement Coordinator Chief of Staff Alex Niejelow said, "The law should deter … large-scale willful reproduction, distribution, and streaming ... for profit." Niejelow, who also works as director for cybersecurity policy for the National Security Council, encouraged Congress to take a fresh look at the "harm thresholds" — how many infringements by streaming, worth how much money, over how long a stretch of time — that would define felony streaming, likely hoping that setting these thresholds high enough should reassure opponents of any such legislation that consumers are not its intended target.
The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. To learn more, visit GRAMMY.org/Advocacy. To get more involved, visit GRAMMY.com/Action.