Sirius XM loses on public performance claims for pre-1972 sound recordings … again.
I’ve already written about two lawsuits – both in California – based on infringement claims arising from Sirius XM’s public performance of sound recordings created before February 15, 1972. (You can read those two posts here and here.) In both cases Sirius XM suffered adverse rulings. It remained to be seen, however, whether Sirius XM (and other potential defendants engaged in the digital transmission of “pre-1972” sound recordings) might be in trouble elsewhere.
The answer is (drum roll, please) “YES”.
The plaintiffs in one of the California cases – former Turtles Mark Volman and Howard Kaylan, better known to many by their noms de disque, Flo and Eddie – also sued Sirius XM in New York. And now Judge Colleen McMahon of the U.S. District Court of the Southern District of New York has joined her West Coast colleagues by taking a big step toward granting Flo and Eddie summary judgment on the liability element of their claim against Sirius XM. (If she concludes that summary judgment is the way to go, the case will proceed to a damages phase where a dollar figure can be attached to that liability.)
But Judge McMahon went a bit beyond the California decisions: her opinion may pave the way for judges in other states to hop on the bandwagon more easily, and it may also include a veiled warning for broadcasters as well.Continue Reading...