SiriusXM Wins Florida Lawsuit Over Performance of Pre-1972 Music

The winning streak ends for Flo & Eddie of The Turtles.

SiriusXM is singing a happy tune after finally scoring a courtroom success over its public performance of pre-1972 music.

In 2013, Flo & Eddie of The Turtles filed separate lawsuits in California, Florida and New York, aiming to use state laws to punish SiriusXM for misappropriating their common law rights to sound recordings. The plaintiffs haven't been paid royalties from the air time of songs like "Happy Together" on satellite radio. And in high-stakes litigation, with the potential to shatter long-held assumptions and winning hundreds of millions of dollars in damages, California and New York judges have favored the argument that state laws protect the public performance of sound recordings in the absence of federal legislation.

The Florida judge was last to rule, and perhaps surprisingly given how the other cases have gone, U.S. District Judge Darrin Gayles on Monday decided to rule in favor of SiriusXM's summary judgment motion.

The judge says he understands why his judicial colleagues ruled differently. California and New York are centers of the art world, laws have been enacted there to protect artistic rights, and there have been prior cases that have touched upon the present controversy.

"Florida is different," writes Gayles. "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts."

Without any such guidance, the judge has to decide whether public performance of pre-72 sound recordings are implicitly protected or whether they should be protected.

"If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law," he continues. "The Court declines to do so."

Gayles says it's the job of the Florida legislature to address the issue, and if he were to step in, there would be difficultly resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right. The judges in California and New York dealt with some of these issues, but their rulings didn't prevent them from coming to a different conclusion.

Flo & Eddie also lose the argument that SiriusXM should be held liable under Florida common law copyright for reproductions of their sound recordings in back-up and buffer copies. If the plaintiff can take anything away from today's ruling, it's that Gayles comes to the conclusion that "state regulation of pre-1972 recordings would not impermissibly regulate extraterritorial conduct in violation of the Dormant Commerce clause."

A decision otherwise would probably have been a ticket for a quicker trip to the U.S. Supreme Court. At it currently stands, the 2nd Circuit will be reviewing the New York judge's decision with the California case awaiting a result, too.

Here's the full Florida ruling.

Sirius is represented by Daniel Petrocelli, Cassandra Seto and Evan Mayor of O’Melveny & Myers.

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