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Sirius XM Faces a Class Action for Playing Pre-1972 Sound Recordings

Internet radio services continue to offer new lessons with respect to licensing songs for public performance. The latest lesson: Radio services should not simply follow the customs of the industry, because those customs may be contrary to law.

Recently, a California district court granted a motion for class certification in a lawsuit against satellite and internet radio service Sirius XM Radio. The lawsuit will now cover anyone with a pre-1972 sound recording that was played on Sirius XM's service on or after August 21, 2009 without authorization.

The action began when Flo & Eddie, Inc., a corporation that owns the rights to the sound recordings of the music group "The Turtles," sued Sirius XM for performing older recordings, and the judge granted them a summary judgment against the satellite radio service. This ruling came as a surprise to many who had believed that rights to pre-1972 sound recordings did not cover public performance rights.

The judge was not sympathetic to any of the radio giant's arguments against class certification. Though Sirius XM argued it would be too difficult to adjudicate on a class-wide basis because determining ownership would be difficult and some owners might have authorized Sirius XM to perform their recordings, the judge noted that class members could easily and reliably self-identify, and Sirius XM has a record of the pre-1972 recordings it has performed since August 2009. The judge added that after calculating revenues attributable to pre-1972 recordings, certain recordings could later be excluded and that pre-1972 recording owners who had entered into written licenses with Sirius XM would not self-identify as class members since their recordings were not played without authorization. The judge also found persuasive plaintiffs' argument that SoundExchange, Evan M. Greenspan, Inc., and Music Reports, Inc. (MRI) had databases that could help identify owners of the recordings at issue.

Licensing issues relating to copyright ownership are quite common. To discuss licensing your intellectual property, contact the experienced intellectual property attorneys at MYBE Law today.

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