The Turtles Lead Whopping $100 Million Class Action Against SiriusXM

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The Turtles Lead Whopping $100 Million Class Action Against SiriusXM
By Eriq Gardner, New York | August 02, 2013 12:57 PM EDT

http://www.billboard.com/biz/articl...ing-100-million-class-action-against-siriusxm

Enjoy an old rock tune on satellite radio lately? A new proposed class action raises the theory that SiriusXM has infringed millions of these older recordings from thousands of song artists. Damages are alleged to be at least $100 million, but for a company that last reported quarterly revenues of $940 million, the attorneys representing the plaintiff believe that damage figure to be on the conservative side.

The lead plaintiff in the case is Flo & Eddie of The Turtles, the iconic band whose hits include "Happy Together," "It Ain't Me Babe" and "She'd Rather Be With Me."

The band has a history of bringing big cases, but the reason why this lawsuit filed in L.A. Superior Court commands notice comes down to the magical number of 1972.

February 15, 1972 is the exact moment in which sound recordings began falling under federal copyright protection. For recorded music created before then, the situation is a bit more murky. The question this lawsuit addresses is what laws cover those recordings?

Every day, SiriusXM transmits thousands of pre-1972 recordings and does so likely with the confidence that §114 of the Copyright Act gives them this authority. That statute carves out limitations on exclusive rights and also sets up the way that owners of recordings get compensated. Currently, the Copyright Royalty Board is the entity that sets statutory royalty rates for satellite radio, and SoundExchange is the entity that collects the royalties to pass along.

But it is the contention of Flo & Eddie, representing themselves and others similarly situated, that federal law can't be relied upon when dealing with pre-72 music on satellite radio. Here's the complaint filed on Thursday.

Among the cases that could support this theory is Goldstein v. California, a 1972 U.S. Supreme Case dealing with a piracy dispute that gave deference to state laws. The ruling held, "Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, the California statute may be enforced against acts of piracy such as those which occurred in the present case."

In the present action, the plaintiffs assert misappropriation under California law as well as unfair competition and conversion. Those claims were recently tested in favor of record label plaintiffs in a California case against BlueBeat, a website that attempted to use §114 for among other things, to sell 25 cent songs from The Beatles. A judge found BlueBeat liable for misappropriation of pre-72 recordings.

If there is another reason why Sirius might be concerned that state laws aren't preempted by federal statutes that confer them distribution rights, a case decided earlier this year by a New York appeals court might give the satellite giant some pause. There, appeals judges held that music streaming site Grooveshark couldn't take advantage of DMCA safe harbors – another federal law – to defend against charges of pirating pre-72 sound recordings. A different jurisdiction, and dealing with digital rather than satellite distribution, but in the wake of that ruling, many legal commentators warned that all hell could break loose when determining liability on older recordings.

Now, The Turtles are stepping up to give Sirius a major challenge.

This isn't the first legal fight for the band.

In 1971, they sued their record label, White Whale, for accounting irregularities, and wound up recovering rights to their original masters. Years later, they brought one of the first "sampling" lawsuits against De La Soul. They've also sued record pirates and brought claims against advertisers for using without authorization their voices in commercials. They are now being represented by Henry Gradstein and other attorneys at Gradstein & Marzano.

Besides hundreds of millions of dollars, the plaintiffs are demanding an injunction against the defendant distributing pre-72 recordings. The lawsuit could conceivably stop a lot of classic rock and jazz being played on SiriusXM.

We've reached out to Sirius and will update with any comment it has.

http://www.billboard.com/biz/articl...ing-100-million-class-action-against-siriusxm
 
Could this mean the end of pre 1972 music for SiriusXM? I am all for artists getting paid, but this could wipe out all music from before 1972 on all radio stations, not just SiriusXM.
 
Sirus/XM makes a point of saying, right up front, that their subscribers have to pay a 'royalty fee.' That came up after the merger and they could raise rates for a while as apart of that merger agreement. So, they added a fee for royalties to raise the rates. Now, it sounds like they've been cheating on paying those royalties to the artists. My sub is up later this month. I think I'm done!!!
 
What I see is the Turtles making a nice return off of all the legal cases.Did they go to law school after their recording careers?
 
Sirus/XM makes a point of saying, right up front, that their subscribers have to pay a 'royalty fee.' That came up after the merger and they could raise rates for a while as apart of that merger agreement. So, they added a fee for royalties to raise the rates. Now, it sounds like they've been cheating on paying those royalties to the artists. My sub is up later this month. I think I'm done!!!

I haven't read the petition, but that isn't what I took away from the summary. What it sounds like is that Sirius is complying with the 1972 law and collecting and paying royalties, but that the plaintiff is making the argument that the law does not apply to their music and that Sirius has been illegally broadcasting/distributing it. Hazarding a guess, they are arguing that Sirius should have made individual distribution contracts with them.

Seems like a huge money grab. But given precedent, might be an viable case under current precedent.

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I call BS. I'm already paying a goddamn royalty fee for Sirius XM, and there is NO WAY that the Turtles are entitled to $100 million. Also, if Sirius XM has proven anything as of late, it's that they got some damn good lawyers. They made sure Howard Stern got screwed out of his bonus that he rightly earned by helping to force the merger. I predict the Turtles will be lucky to get a $10 million settlement. Maybe instead of relying on the courts for money constantly maybe they should try recording some actual music.
 
If the Turtles get 10 million then all other artists played on SiriusXM before 1972 will have their hand out as well.

That is the problem.
 
Maybe instead of relying on the courts for money constantly maybe they should try recording some actual music.

OK youngster, let me give you a lesson! The Turtles were a group that had 17 top 100 records between 1965 and 1970. Of those, 5 were top 10, including their number 1 hit "Happy Together." In their time, they WERE the music. Now, 40 something years later, they are asking that they continue to make some money off of their product that someone else is profiting from. I agree with these artists that are getting screwed out of their product for some else's benefit. There are those of us who enjoy the music of that age. We have a choice, we can buy the CD's, and I have, or we can listen to music channels that are offered. I think the music channels are doing just fine and need to pay what is due whether it be pre or pro 72.....
 
OK youngster, let me give you a lesson! The Turtles were a group that had 17 top 100 records between 1965 and 1970. Of those, 5 were top 10, including their number 1 hit "Happy Together." In their time, they WERE the music. Now, 40 something years later, they are asking that they continue to make some money off of their product that someone else is profiting from. I agree with these artists that are getting screwed out of their product for some else's benefit. There are those of us who enjoy the music of that age. We have a choice, we can buy the CD's, and I have, or we can listen to music channels that are offered. I think the music channels are doing just fine and need to pay what is due whether it be pre or pro 72.....

Sirius is paying the royalty rate set and collected by the copyright board. The band is contending that their music doesn't fall under the jurisdiction so even if they were currently receiving millions in royalties, Sirius would still be "pirating" their music and thus liable.

There is zero indication that Sirius is using the music without paying. The claim is that the law, the safe harbor and the royalty rates system don't apply and so anything from prior to 1972 is being pirated.

Again, this seems like a greedy money grab. They aren't satisfied with the royalties that everyone else gets and want a larger amount for themselves. While they're at it, they should sue classic oldies radio stations too.

Sent from my iPhone using SatelliteGuys
 
And nothing, yet, says that they are being paid for each and every playing of their music. They are contending that they aren't. Let Sirius, and indeed, the oldies stations, prove that they are....
 
And nothing, yet, says that they are being paid for each and every playing of their music. They are contending that they aren't. Let Sirius, and indeed, the oldies stations, prove that they are....

I'll repost the part that would indicate otherwise:

Every day, SiriusXM transmits thousands of pre-1972 recordings and does so likely with the confidence that §114 of the Copyright Act gives them this authority. That statute carves out limitations on exclusive rights and also sets up the way that owners of recordings get compensated. Currently, the Copyright Royalty Board is the entity that sets statutory royalty rates for satellite radio, and SoundExchange is the entity that collects the royalties to pass along.

The rate and collection of the rate are being made. If that wasn't happening, then there would be a violation even under the Copyright Act.

This band wants more than the rate established for everyone and are going after it in the form of damages for "piracy". The law as written and interpreted in past cases may give them grounds to bring the suit and even win, but this is plain and simply a money grab and not a case of Sirius using the music for free.

Sent from my iPhone using SatelliteGuys
 
Wow. I want to follow this one. I listen to 60's and 70's music quite often, along with BBC. I've drifted from the comedy stations.

Anyway, if the Turtles win, and the doors open to other pre-72 claims, I can see that music going off SXM immediately.

Sent from my iPhone using SatelliteGuys
 
BTW funny thing is the same night the lawsuit was announced one of the lead singers of The Turtles was the Guest DJ on the 60's on 6.
 

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