SiriusXM’s losing streak in court over the issue of pre-1972 sound recordings continues on Thursday with a federal judge denying the satcaster’s motion to certify an interlocutory appeal.
In the past couple months, facing the owners of older music, SiriusXM has lost, lost again and lost thrice over the issue of whether California and New York state laws protect the exclusive right to publicly perform pre-72 sound recordings.
In the first battle against Flo & Eddie of The Turtles, SiriusXM wanted to appeal the decision before moving ahead to the next stages of litigation including class certification and damages liability.
But U.S. District Judge Philip Gutierrez won’t make it easy.
His earlier decision granting summary judgment to the plaintiffs was grounded upon a California law that was enacted in 1982 that was meant to address pre-1972 music, before sound recordings began falling under federal law. The state statute was silent on the issue of public performance, and despite decades of terrestrial broadcasters and others assuming a right to broadcast music like Bob Dylan hits from the 1960s, the judge decided that the law included performance rights for the benefit of copyright owners rather than excluding them.
On Thursday, the judge issued a new ruling on the issue of whether SiriusXM could take up an immediate appeal. He writes:
“While the Court is largely unpersuaded and sometimes baffled by Sirius XM’s repetitive or off-point theories about how reasonable jurists might read an unwritten exclusion into §980(a)(2), the Court will not analyze the potential grounds for difference of opinion because certification of this Order suffers from an even more basic deficiency. At this stage in the litigation and under the operative scheduling order governing the case, certification of the Order for immediate appeal would delay rather than materially advance the termination of the litigation; therefore, the Court denies the motion.”
This doesn’t necessarily mean that there won’t be an appeal nonetheless. SiriusXM can try to get the 9th Circuit to order one up anyway. But it does make it more unlikely.
In recent weeks, SiriusXM appears to be slightly shifting its strategy after hiring a new lawyer, Daniel Petrocelli at O’Melveny & Myers (who today emerged victorious on behalf of Fox in the American Idol racism lawsuit).
In a separate motion that urges reconsideration, the company has been making bones about whether the rulings conferring public performance rights from state laws impermissibly interferes with interstate commerce. Although a New York judge rejected the argument in a second Turtles case last week, the argument could be primed towards eventually interesting the U.S. Supreme Court on the issue. At the moment, SiriusXM faces lawsuits in several states (including Florida) for broadcasting pre-1972 music and without new legislation or an order from the high court, it faces the continued threat of liability around the nation.
The plaintiffs are being represented by Gradstein & Marzano.