ASCAP Required To License ALL Songs In Its Repertory To Pandora

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In re Petition of Pandora Media, Inc., No. 1:12-cv-08035-DLC (S.D.N.Y. Opinion & Order filed 09/17/13) [Doc. 70], related to U.S. v. ASCAP, No. 41 Civ. 1395.

ASCAP must license all songs in its repertory to Pandora, even though certain music publishers have purported to withdraw from ASCAP the right to license their compositions to “New Media” services such as Pandora, holds the ASCAP rate court in interpreting the consent decree under which ASCAP operates.  "Because the language of the consent decree unambiguously requires ASCAP to provide Pandora with a license to perform all of the works in its repertory, and because ASCAP retains the works of 'withdrawing' publishers in its repertory even if it purports to lack the right to license them to a subclass of New Media entities, Pandora’s motion for summary judgment is granted."

In April 2011, ASCAP began to allow members to withdraw from ASCAP its rights to license their music to New Media outlets, while allowing ASCAP to retain the right to license those works to other outlets.  Subsequently, several music publishers withdrew their New Media licensing rights from ASCAP, and Pandora then engaged in license negotiations directly with those publishers.  On July 1, 2013, Pandora filed a motion for summary judgment, seeking a determination that “ASCAP publisher ‘withdrawals’ [of New Media rights] during the term of Pandora’s consent decree license do not affect the scope of the ASCAP
repertory subject to that license."  ASCAP argued that “’ASCAP repertory’ refers only to the rights in musical works that ASCAP has been granted by its members as of a particular moment in time.” Pandora argued that ASCAP repertory” is a “defined term[] articulated in terms of ‘works’ or ‘compositions,’ as opposed to in terms of a gerrymandered parcel of ‘rights.’” The Court found that Pandora was correct.  “ASCAP repertory” is defined in the consent decree in terms of “works” and not “individual rights” in works with respect to classes of potential licensees.  The Court also held that Pandora's subsequent negotiations with the publishers did not alter interpretation of the consent decree because Pandora is not a party to the consent decree.

AM/FM Performance Royalties Discussed In Congress

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Tamlin H. Bason, "Hearing on Internet Royalties Veers Into Discussion of AM/FM Loophole" (BNA 17 ECLR 2096).

BNA reports on a House subcommittee that held a hearing on a bill that would lower the royalty rates paid by services that offer internet radio, but that many lawmakers seemed more interested in dealing with the larger loophole: that AM and FM radio stations do not pay performance royalties.

Aussie Court: No Extra Royalties From Radios Streaming On Web

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Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited
[Feb. 15, 2012] FCA 93.

The issue before the Australia Federal Court was whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet.

Phonographic Performance Company of Australia Ltd (PPCA) is a copyright collecting society representing the interests of copyright owners and recording artists in relation to the broadcast, communication to the public and public performance of recorded music and music videos in Australia. It offers non-exclusive licences of the copyright in a large repertoire of commercially released sound recordings for particular purposes. Commercial Radio Australia Limited (formerly called “The Federation of Australian Radio Broadcasters Limited”) (CRA) is an incorporated industry body representing the interests of commercial radio broadcasters in Australia who make use of such sound recordings in their day-to-day commercial activities.

By an umbrella Licence Agreement between PPCA and CRA (the Industry Agreement), PPCA agreed to grant to each member of CRA a nonexclusive licence of “… the Broadcasting Right in the PPCA Sound Recordings” for a certain period. Some radio stations which are members of
CRA have streamed their radio programs on the Internet. This streaming service involves the
simultaneous transmission of radio programs using the broadcasting services bands and the
Internet. The content of the radio programs made available over the radio and via the Internet
is the same. PPCA contends that, as a result of the the interplay between certain provisions of the Australian broadcasting and copyright law, the licence which PPCA agreed to grant to members of CRA did not include the right to make available to the public PPCA Sound Recordings in radio programs delivered via the Internet at the same time as making those recordings available to the public by means of a radio broadcast. CRA argues, on the other hand, that the existing licence does include that right.

The Court held that the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement. PPCA failed to make out its case.

Webcasting Not 'Interactive Service' Required to Pay License Fees

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A webcasting service, Launch, that provides users with individualized Internet radio stations is not required to pay licensing fees to copyright holders of the songs the service plays. The service, which provides the stations by which content is affected by customers' ratings of titles, artists and albums, is not "interactive" as a matter of law. Therefore it is not required to pay individual license fees to the copyright holders; instead, it is only required to pay a statutory licensing fee as set by the Copyright Royalty Board.

Arista Records, LLC v. Launch Media, Inc., no. 07-civ-2567 (2d Cir. Aug. 21, 2009).

EMI Sues Seeqpod & Favtape.com

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Capitol Records LLC et. al. v. Seeqpod, Inc., No. 09 cv 1584 (S.D.N.Y. filed 2/20/09).

"The Seeqpod site and service are designed to, and do, encourage and facilitate the search for, and the unlawful production, distribution and public performance of, copyrighted sound recordings and the copyrighted compositions embodied therein. In response to a user's query for a particular recording or recording artist, SeeqPod's proprietary algorithims - which SeeqPod's CEO and founder, Kazian Franks refers to as SeeqPod's "targeted crawling system" - crawl the Internet specifically to locate and index unlawful MP3 files of copyrighted sound recordings and compositions. SeeqPod then formats and presents the results as direct links to those unlawful files. A click on any one of these links will automatically cause the recording and composition to be reproduced and performed, via "streaming" technology, on and via SeeqPod's own MP3 software "player."

Paragraph 48.