Opinion

Pandora cites free speech to defend against artist demands for royalties

Pandora seeks 1st Amendment protection against royalties lawsuit by the Turtles' Flo & Eddie

Led by key members of the 1960s rock band the Turtles, oldies artists have persuaded a series of judges in California and New York that they are entitled to royalty payments from Sirius XM.

Those artists are suing Pandora as well, claiming the online broadcaster violated their copyrights under California law to songs they recorded before February 1972. On Friday, Pandora struck back, moving to dismiss a federal class-action lawsuit by the Turtles' Flo & Eddie because it allegedly violates Pandora's 1st Amendment rights.

The motion doesn't change the central legal question in the case, which is whether state law actually provides artists a copyright over the recordings they released before Congress expanded federal copyright law to cover sound recordings. Instead, it merely reframes the question, potentially forcing the artists to show they're likely to win the case before it can move forward.

And given that they've won cases like this three times, that may not be much of a hurdle.

According to Pandora's filing, the claims by Flo & Eddie run afoul of a 1992 state law prohibiting "strategic lawsuits against public participation." This law is designed to protect people from being sued for exercising their rights to free speech or petition the government "in connection with a public issue or an issue of public interest."

"The Ninth Circuit has held that a suit asserting liability from the public dissemination of a rock band’s recorded performances satisfies this standard," Pandora's motion asserts. "That is no different than what Pandora is accused of having done here: disseminating 'recordings that comprise the historical backbone of the music industry' and 'have defined generations.' The core premise of Plaintiff’s complaint is that Pandora shares early-to-mid 20th century recordings with the public precisely because these are works of tremendous cultural value, i.e., 'of public interest.'" 

That's an interesting bit of legal jiu-jitsu, but it doesn't speak to the question the court will ultimately have to answer. That is, what rights does California's copyright law give to Flo & Eddie and their contemporaries?

Recording artists have long been the odd ones out when it came to copyrights. Songwriters first won federal copyright protection for their compositions in 1832, but Congress didn't extend that protection to musical recordings until 1972, and then only to the copying and distribution of those recordings. In a nod to radio broadcasters, bars and restaurants, the federal law provided no right restricting how a recording was played in public. That's why, unlike broadcasters around the world, radio stations in the United States don't pay record labels or recording artists royalties. Instead, they pay only the songwriters whose works they put on the air.

In 1995, Congress created a limited performance right for recording artists that applied only to digital broadcasters, whether they be satellite radio outlets such as Sirius XM or webcasters such as Pandora. That right applied to any recording covered by a federal copyright -- in other words, only to songs recorded after February 1972.

Nevertheless, Flo & Eddie won lawsuits against Sirius XM in California and New York this year based on the protection afforded by state copyright laws. Pandora is hoping that, by offering a different argument, it can achieve a different result. But the chances don't seem good, considering that the case is being heard by the same judge (U.S. District Judge Philip S. Gutierrez) who sided with Flo & Eddie over Sirius XM.

The heart of Pandora's case is its argument that California copyright law covered only unpublished works, a category not protected by federal law until 1976. As the Legislature made clear when it revised California's copyright law in 1947, Pandora argues, the rights under state law were extinguished as soon as a work was published.

That law was amended again in 1982, and its language seems to give broad, exclusive rights over the use of sound recordings made before 1972. Pandora argues, however, that state lawmakers were not providing new protection to published works. Instead, they were merely extending the protection for unpublished works recorded before federal copyrights kicked in. If they had provided new protection, then pre-1972 artists would have been entitled to collect royalties from radio stations -- a claim they've never made.

The provision doesn't refer to "unpublished" sound recordings, however, just "original" ones. And the fact that it doesn't specifically exclude public performance rights led Gutierrez in the Sirius XM case to rule that state law did, indeed, provide those rights. That ruling opened the door to lawsuits against any broadcaster (online or over the air) that plays pre-1972 recordings.

(Flo & Eddie's lawsuit against Pandora don't focus on the public-performance question. Instead, it centers on the reproductions of the pre-1972 recordings that Pandora made, including the copies on its servers and, potentially, the ones stored in listeners' computers as they play Pandora's streams.)

Pandora's position is legalistic, not equitable. No matter what you think about the Turtles, there's no reason "Happy Together" (from 1967) is less deserving of royalties than "Afternoon Delight" (1976) or "All About That Bass" (2014). That's why, once Congress created a licensing regime in the 1990s for recorded music transmitted online, it should have done so for all recordings not yet in the public domain.

In a statement Friday, Pandora says that it could support such an approach on two conditions: that all its competitors -- online and off -- had to pay too, and that "libraries, music services and consumers" have the "same rights and responsibilities that are enjoyed with respect to all other sound recordings."

Follow Jon Healey's intermittent Twitter feed @jcahealey.

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