The last remaining case over the use of pre-1972 sound recordings by satellite and Internet radio providers has been dismissed.
A federal judge ruled Wednesday that Pandora will not have to face a class action lawsuit alleging it violated state copyright laws by failing to pay for the reproduction and public performance of these recordings. The series of lawsuits, most of which were brought by Flo & Eddie, asked whether the laws of some states, including California, New York and Florida, give owners of works an exclusive right of public performance to which artists are entitled to royalties.
“One after another, federal circuit courts and state supreme courts responded with a resounding ‘no,’” US District Judge Philip Gutierrez wrote in the order.
The litigation has bounced between various courts, with trips to numerous state Supreme Courts. The first class action lawsuit was filed in 2014 in California federal court by Flo & Eddie seeking royalties under California state law for Pandora’s transmission of the duo’s recordings made before 1972. A year later, Pandora appealed the ruling of the judge who refused to dismiss the lawsuit. At the time, two federal appeals courts were considering similar copyright claims brought by Flo & Eddie under the state laws of New York and Florida. Following in the footsteps of those courts, the Ninth Circuit Court of Appeals also certified a question to the California Supreme Court on whether state law granted an exclusive right of public performance to owners of pre-1972 sound recordings.
In 2019, the Ninth Circuit ordered the court to reconsider Pandora’s offer to dismiss the lawsuit 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 lawsuit, and the company appealed 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 ordered the court to reconsider the matter, concluding that the owners had an exclusive right of reproduction of the pre-1972 recordings, but not an exclusive right of public performance. The former pays royalties for the right to play 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 judgment, Flo & Eddie argued that previous rulings on the issue did not resolve their copy claims because they are based on an independent reproduction right. Pandora maintained that the arguments are precluded based on findings in identical cases from federal judges in New York and Florida.
In Wednesday’s ruling, Gutierrez found that copy claims “rise and fall with the right of public performance.” According to the Second Circuit ruling rejecting Flo & Eddie’s reproduction claims, the question of whether Pandora’s internal copy constitutes infringement or fair use was “related to whether end use of internal copies is permissible.” He concluded that the absence of a public performance right under New York law is “determinative” of the duo’s copy claim. That case was returned with instructions to issue summary judgment in favor of Pandora. The judge in this case said that federal appeals court rulings that have considered identical claims “determine the outcome of this motion.”
In response to arguments that New York and Florida law fail to inform the outcome of a lawsuit filed in federal court in California, Gutierrez explained that the Ninth Circuit “said that California copyright law follows California copyright law.” NY”.
“The Ninth Circuit has nearly ruled that Flo & Eddie’s copy claims against Pandora fail as a matter of law,” the judge wrote. “Therefore, even if the Court wanted to consider these claims independently, its hands are tied.”
Pandora was represented by Andy Gass, Jessica Stebbins Bina, Elana Nightingale Dawson and Joe Wetzel of Latham & Watkins.
SiriusXM and an attorney for Flo & Eddie did not respond to requests for comment.
