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    SiriusXM Wins Lawsuit Over Performance Rights in Pre-1972 Recordings – The Hollywood Reporter

    The last remaining case over the use of pre-1972 sound recordings by satellite and internet radio providers has been dismissed.

    A federal judge on Wednesday ruled that Pandora will not have to face a class action alleging that it violated state copyright laws by failing to pay for the reproduction and public performances of these recordings. The series of suits, most of which were filed by Flo & Eddie, asked whether laws from some states — including California, New York and Florida — provide owners of the works an exclusive right of public performance to which artists are entitled to royalties.

    “One after another, federal circuit courts and state Supreme Courts answered with a resounding ‘no,’” wrote U.S. District Judge Philip Gutierrez in the order.

    The litigation has bounced between several courts, with trips to numerous state Supreme Courts. The first class action was filed in 2014 in California federal court by Flo & Eddie seeking royalties under California state law for Pandora’s streaming of the duo’s recordings made before 1972. A year later, Pandora appealed the judge’s ruling refusing to dismiss the suit. Two separate federal appeals courts were considering similar copyright claims brought by Flo & Eddie under New York and Florida state laws at the time. Following in those courts’ footsteps, the Ninth Circuit Court of Appeals similarly certified a question to the California Supreme Court asking whether state law extended an exclusive right of public performance to owners of pre-1972 sound recordings.

    The Ninth Circuit in 2019 directed the court to reconsider Pandora’s bid to dismiss the suit after Congress enacted the Music Modernization Act, which extended federal copyright protections to earlier works for digital performance royalties. The court again denied Pandora’s attempt to escape the class action and the company appealed for a second time. Meanwhile, a judge in a related case granted summary judgment in favor of Flo & Eddie after considering nearly identical claims. The Ninth Circuit, however, reversed the ruling and directed the court to reconsider the issue, concluding that owners had an exclusive reproduction right to pre-1972 recordings but no exclusive public performance right. The former pays royalties for the right to reproduce a recording through the process of recording, manufacturing and distributing the work, while the latter pays royalties for the right to play a work in public.

    Opposing summary judgement, Flo & Eddie argued that prior rulings on the issue did not resolve its copying claims because they’re based in an independent right of reproduction. Pandora maintained that the arguments are foreclosed under findings in identical cases from federal judges in New York and Florida.

    In Wednesday’s ruling, Gutierrez found the copying claims “rise and fall with the public performance right.” Under the Second Circuit’s ruling rejecting Flo & Eddie’s reproduction claims, the issue of whether Pandora’s internal copying constitutes infringement or is fair use was “bound up with whether the ultimate use of the internal copies is permissible.” It concluded that the absence of a public performance right under New York law is “determinative” of the duo’s copying claim. That case was remanded with instructions to grant summary judgment in favor of Pandora. The judge in this case said that rulings from federal appeals court that have considered identical claims “determine the outcome of this motion.”

    Responding to arguments that New York and Florida law don’t inform the outcome a suit filed in California federal court, Gutierrez explained that the Ninth Circuit “said California copyright law follows New York.”

    “The Ninth Circuit has all but said that Flo & Eddie’s copying claims against Pandora fail as a matter of law,” the judge wrote. “Thus, even if the Court would like to independently consider these claims, its hands are tied.”

    Pandora was represented by Andy Gass, Jessica Stebbins Bina, Elana Nightingale Dawson and Joe Wetzel of Latham & Watkins.

    SiriusXM and a lawyer for Flo & Eddie didn’t respond to requests for comment.

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