Sirius XM Stuck Fighting Copyright Case in California

, The Litigation Daily

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Sirius XM Radio Inc. has lost a bid to streamline a major copyright battle over its rights to broadcast pre-1972 recordings, leaving the company to defend itself on multiple fronts.

U.S. District Judge Philip Gutierrez in Los Angeles refused Tuesday to transfer to New York a case brought against Sirius in August by two former members of the band The Turtles. Band members Mark Volman and Howard Kaylan accuse the satellite radio company of playing their pre-1972 recordings in California without authorization and compensation. Using their company Flo and Eddie Inc. as the named plaintiff, they're seeking to lead a class action on behalf of all artists whose pre-1972 music has aired on Sirius in California, with damages exceeding $100 million.

Sirius had argued that the California case should be transferred to federal court in Manhattan, where the same plaintiff has brought a similar case against Sirius based on pre-1972 music played in New York. Flo and Eddie has also filed a related case in the Southern District of Florida. Indicating the potential importance of this case, Sirius is represented by three major law firms: Weil, Gotshal & Manges; Sheppard, Mullin, Richter and Hampton; and Kramer Levin Naftalis & Frankel.

At issue in all the cases is whether Sirius has the right to play music recorded before Feb. 15, 1972, when copyright protection began applying to sound recordings. In the California complaint Flo and Eddie asserts that artist have exclusive ownership of the early recordings. According to plaintiffs attorney Henry Gradstein of Gradstein & Marzano, Sirius is "adamant" about not paying for pre-1972 recordings and fought hard to have revenues from those recordings excluded from collection by SoundExchange, which collects royalties on behalf of music copyright owners. Pre-1972 music makes up an estimated 10–15 percent of the music delivered to Sirius subscribers, according to The Hollywood Reporter.

In his ruling Tuesday, Gutierrez weighed a host of factors in deciding whether to transfer the case. In the end, he concluded that Sirius had failed to show that the three lawsuits were materially identical or that the state laws at issue were sufficiently similar. "California’s interest in having a novel question of state law decided at home, as well as the slight weight given to plaintiff's choice of forum, weighs against transfer," he wrote.

In the wake of the Turtles' lawsuits, Sirius has been hit with at least two related cases. It's been sued by music companies Sony, Universal and Warner, and by SoundExchange for underpayments.

Sirius and its lawyers declined to comment.

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