SiriusXM's Challenge Over Pre-1972 Music Will Be Reviewed by Appeals Court

The courts are taking heed of SiriusXM's warning that it may pull all pre-1972 music from its airwaves. According to The Hollywood Reporter, the 2nd Circuit Court of Appeals granted a petition for review of recent lawsuits filed against the satellite radio giant.

The lawsuits stem from a 1970s revision of copyright law by Congress, which granted only sound recordings after 1972 protection. As a result, the owners of those pre-'72 songs have filed a series of lawsuits since 2013 on the grounds of state misappropriation and unfair competition laws with Sirius and Pandora publicly performing their works for free.

California and New York judges have granted legal victories to the owners of those songs, creating a legal quagmire for Sirius and the copyright owners who wish to collect royalties specifically on their work.

SiriusXM is looking to appeal the November decision by New York federal judge Colleen McMahon, who ruled in favor of Flo & Eddie of The Turtles.

She wrote that "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law -- only that they failed to act on it."

Sirius is fighting this decision hard because it has spent years not paying royalties specifically to copyright owners of pre-1972 tracks, while broadcasting millions of older songs.

"Absent immediate review, the district court's ruling leaves SiriusXM and other broadcasters with tremendous uncertainty, faced with a choice between stopping the broadcast of pre-1972 recordings to the public's detriment; submitting to shotgun negotiations with sound recording owners; or facing massive liability as this case and others wend their way through the courts," she wrote.

There is the possibility of the U.S. Supreme Court getting involved, but Congress is looking to create a solution with a new bill of its own. U.S. Reps. Jerrold Nadler (D-New York), Marsha Blackburn (R-Tennessee), John Conyers Jr. (D-Michigan), and Ted Deutch (D-Florida) have introduced the Fair Play Fair Pay Act which, among other provisions, would establish public performance rights for recordings created before 1972.

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