Pandora: New copyright claims on oldies music violate free speech

16 Comments

Internet radio service Pandora is striking back against former members of the band The Turtles, claiming that the musicians’ lawsuits — which seek a new set of royalty payments for songs dating from before 1972 — amount to an illegal restriction on freedom of speech, and it is asking a court to put a stop to the Turtles’ demands.

Pandora made the request via a so-called anti-SLAPP (SLAPP stands for Strategic Litigation Against Public Participation) motion filed Friday in Los Angeles, and addressed to the judge who is overseeing an ongoing copyright case launched by a holding company named for Flo and Eddie, the musicians who performed Turtles hits in the 1960’s like “Happy Together” and “It Ain’t Me Babe.”

The purpose of anti-SLAPP laws, like the one in California on which Pandora is relying, is to provide defendants with a quick way to challenge unjustified lawsuits that threaten free speech. In this case, Pandora claims that Flo and Eddie’s copyright claims are baseless, and could intimidate everyone from radio stations to restaurants from playing popular oldies.

(“[T]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights,” Pandora wrote (original emphasis) in the filing, in a direct quote of an earlier decision.

The move is perhaps a bold one by Pandora since anti-SLAPP procedures are not typically used in copyright cases, and because Flo and Eddie have already had some success in their campaign to wring out extra royalty dollars on behalf of the music industry.

The underlying copyright issues in the case are complex even by entertainment law standards but, in essence, they amount to performers demanding new money for old recordings on the basis of obscure state laws.

Even though copyright law is almost exclusively federal, Flo and Eddie have been making the novel claim that state laws in California and New York require Pandora, SiriusXM and everyone else to pay an extra royalty for performance rights for pre-1972 songs — in addition to the royalties they already pay to songwriters.

Critics of the Flo and Eddie campaign, including me, have argued the royalties amount to an undeserved windfall and do nothing to encourage the creation of new works (which is the point of copyright in the first place). The campaign risks creating a large financial burden not only for Pandora, but to AM/FM stations and YouTube and anyone else who plays music, and is likely to result in many platforms simply removing oldies music altogether.

And, as Pandora points out in its filing, a special performance right for recordings (as opposed to songwriters) never existed at the state or federal level in the first place. In a statement, [company]Pandora[/company] spokesperson Dave Grimaldi suggested Congress should move all sound recordings under federal law:

“Pandora would be open to supporting the full federalization of Pre-72 sound recordings under a technology-neutral approach that affords libraries, music services and consumers the same rights and responsibilities that are enjoyed with respect to all other sound recordings.”

In the meantime, though, judges in Los Angeles and New York have appeared willing to recognize a new state copyright in oldies, so Pandora may face an uphill battle in winning its anti-SLAPP suit.

As the filing below explains, a key part of Pandora’s argument is based on showing that, whatever state level sound recording rights may have existed, those rights were limited to unpublished or unreleased works. Once those songs were released in record stores, however, the California copyright ended, Pandora suggests.

Pandora SLAPP

16 Comments

Jimmy Fox

Kill the crap. If you dont want to pay, then dont play, plain and simple. You can’t take someone’s creation and then tell them what you are going to pay them for it even if they disagree. This and the “Fair Use” Law is exactly that, so much BS about trying to get around using something that was created by someone else, without paying. The solution as I said is simple, if you don’t want to pay, leave it the hell alone and don’t play.

JIMMY FOX

Rann Xeroxx

Copyright was never meant to support a creator for life, it is meant to promote more creation. Modern copyright laws are more of a reflection on billions spent over the decades for lobbyist in DC than the promotion of the public good. The public good has not been represented in DC in decades. If you need to live off the royalties of something produced 30 years ago, you need to find a job or be productive again.

Will Buckley

Rann. The only way copyright can stifle creativity is that it can deprive artist wanna bees from the very content they cut and paste and call their own, Too many pseudo artists crawling around using other peoples creative work to pretend to be creators.

Sorry, I know the truth hurts.

nebulonranger

“Too many pseudo artists crawling around using other peoples creative work to pretend to be creators.”

You mean like most of the mainstream rap scene? OOPS, that must sting to be called out on your drivel.

Music these days is a lot of sampling, especially in the popular genres, and sampling of commercially-produced music is still very much a legal grey area. Guess what, though? A lot of big names still do it. I don’t see you calling out big rap acts for the things you claim some smaller artists are doing (which some most likely are, there’s no reason to deny it no matter what side you’re on in this debate).

Also, by your own logic, commercially-produced sample libraries shouldn’t exist because people are profiting from the works of others, and these are being used by “wannabe creators” (pretty sure that term is laughably inaccurate as the whole point of creating an artistic work is that in practise anyone can do it given they have the time to dedicate to improving their skills) to create good music.

I highly recommend you take a look at platforms like Bandcamp so you can see just how blinkered you were with this post.

Will Buckley

Jeff, of course I’m interested in scoring points for FarePlay. I’ve been doing what I believe supports the individual artist for nearly four years pro-Bono.

I’m a fan of the arts and concerned that the tech industry has so little understanding or appreciation for the creative process. Unfortunately, much of what’s happening comes out of what has happened as a result of online piracy and all the misperceptions and falsehoods spawned by the philosophy of free.

Even your posts reflect this kind of attitude. Pandora is a business that profits from the music they play that was created by musicians and songwriters who created that music. Why they should profit by making this music available for free, while eradicating the sale of this music by doing so, literally makes no sense and is not fair.

Jeff John Roberts

I support the arts and music too, and think copyright is a great way to support them. But I get frustrated when people like you make disingenuous arguments and muddy the debate by claiming that Pandora and others want to play music for “free.”

Pandora and other digital services pay far more in royalties as a percentage of revenue than do traditional outlets like AM/FM and you know this.

If you believe that we should increase the copyright royalties that all of of us pay (through Pandora or other platforms), that’s fine. I might even agree with you — provided the extra royalties we pay go to creating new incentives for up-and-coming artists.

But there is no good reason to create a brand new form of copyright royalty (in the form of public performance royalties for pre-1972 sound recordings) that does no more than give a handout/windfall/corporate welfare to people who have already cashed in many times already. I mean, why not grant new copyright royalties on Shakespeare and Mark Twain while we’re at it?

Will Buckley

Jeff, this is what your missing. Terrestrial radio, AM/FM, was once a real source of discovery that drove the sale of recorded music. The Internet has disrupted that entire sales channel and devalued music by consistently offering it as a lost leader for the sale of advertising.

When I refer to free and Pandoa, like Spotify the majority of subscribers do not pay for the service. Which brings into question whether these are actually leg image, for-profit businesses or rather investment properties focussed on an exit strategy. Pandora already accomplished this.

The reality. As with any industry, musicians and songwriters need to be able to sell recorded music to survive. The major acts are surviving because they charge and get a great deal of money for touring. For 99% of bands or the 10% of bands who are actually good enough to earn a career, this is not possible. They tour their butts off and make a little money.

The necessary change is to re-establish the value of music and educate the public to the value of contributing to the music that moves, touches and inspires them.

Lol. How do we accomplish this? Artists limit the amount of music they make available on interactive. Wherever that is Taylor Swift and other marquee artists windowing their releases or cult bands limiting what’s there.

Yes, Pandora is blessed to have a compulsory license, but that shouldn’t be a free pass to abusing legacy artists. After all, readers still buy books by Shakespeare. Don’t they?

Will Buckley

“The campaign risks creating a large financial burden not only for Pandora, but to AM/FM stations and YouTube and anyone else who plays music, and is likely to result in many platforms simply removing oldies music altogether.”

Jeff this is crazy. Business fail when they can’t afford to buy inventory and have enough customers to buy it. The perjorative word is BUY. This isn’t a campaign, it’s a law, which Padora chose to try and use a loophole that collapsed.

“Simply removing oldies altogether”. These Platforms play this music, because it is highly sought after by listeners. Why would they eliminate it?

Jeff John Roberts

Will Buckley, I’m not sure if it’s worth addressing your points since you seem less interested in an honest debate than scoring points for your advocacy group, FarePlay.

As you know very well, recording artists like Flo & Eddie ARE paid for mechanical and reproduction royalties whenever a track is sold. They have never had a public performance right akin to what songwriters receive.

There is no reason to retroactively hand a new copyright royalty to Flo & Eddie for 50 year old music. Doing so is just a windfall for them, and for their lawyers and lobbyists, and does nothing to promote new music.

Will Buckley

Critics of the Flo and Eddie campaign, including me, have argued the royalties amount to an undeserved windfall and do nothing to encourage the creation of new works (which is the point of copyright in the first place).

Jeff, what is this ‘undeserved windfall” nonsense. What is the connection between paying Flo and Eddy for their work and creating new works. Jeff it doesn’t make any sense. Pandora doesn’t create anything and profits from these pre-1972 recordings. Why does Pandora deserve this ‘windfall’ based on the work of others?

Will Buckley

Pandora needs to figure out how to be profitable by executing a business plan that drives paid subscribers and not using the courts for endless appeals for failing to honor their fudiciary responsibility.

Pandora’s inability to profit from their huge, mainly non-paying, subscription base is a sign that the entire music streaming category is in jeopardy.

slateone

Pandora make money on ads and selling subscriptions.
They can’t expect the musicians to receive nothing for their music.
Free music, free for whom?
Not the user.

Pay up, don’t run a radio station if you don’t want to pay artists.
Free speech doesn’t come into it.

Jeff John Roberts

thanks for the comment slateone, but Pandora DOES pay musicians.. They pay the song writer for every song and, unlike the AM/FM radio stations, they also pay the recording artists for post-1972 songs. If you feel the current system is unfair, it is perhaps more appropriate to direct your complaint to convention radio stations than at Pandora (who pays a far higher share of revenue in royalties)

dsanders

Ah, 1972 was 43 years ago.

I think that qualifies as “oldies” territory.

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