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May 28, 2015 2:22 pm  #1

Judge Certifies Class Action Against SiriusXM Over Pre-1972 Music

Via The Hollywood Reporter)

A huge lawsuit against SiriusXM over its performance of pre-1972 sound recordings is officially no longer just about Flo & Eddie of The Turtles. On Wednesday, the high-stakes litigation took another major step forward after U.S. District Judge Philip Gutierrez granted a motion for class certification.

This means that the lawsuit will now cover pretty much anyone who owns a pre-1972 sound recording, assuming the song got played on SiriusXM's satellite radio service after August 21, 2009. It also means that SiriusXM is facing a potential monster legal bill. The judge appears to favor the plaintiffs' damage theory that they be awarded 100 percent of SiriusXM's revenues attributable to pre-1972 recordings without deductions for costs.

For a company that had reported more than $4 billion in revenue in 2014, with about 10 to 15 percent attributable to pre-1972 recordings (according to prior litigation with SoundExchange), the judge's latest decision represents a staggering amount of money when calculated across four or five years.

Judge Gutierrez previously sent shock waves across the music industry when in September 2014, he granted summary judgment to Flo & Eddie on allegations that SiriusXM had violated California laws by performing older recordings. SiriusXM later suffered a blow in a lawsuit brought by members of the RIAA and was handed another big loss in a lawsuit in New York. (There's also a case pending in Florida.)

Many had long assumed that rights to pre-1972 sound recordings didn't cover public performance — and as others like Pandora watch closely, SiriusXM is appealing the New York decision to the 2nd Circuit — but Judge Gutierrez isn't waiting for any higher appellate authority.

SiriusXM attempted to argue that because Flo & Eddie had already obtained a favorable ruling on the merits, certification of a class would violate a rule of procedure. But the judge today concludes that SiriusXM consented to Flo & Eddie’s early summary judgment motion and thus waived the protections of a rule intended to ensure due process.

The judge also rejects other attempted blocks to class certification thrown by SiriusXM.



Madness takes its toll.  Please have exact change.