Judge not happy with ancient precedent in SiriusXM case

January 2015

Broadcasting, sound recordings


O’Melveny & Myers, the attorneys representing Sirius XM Radio Inc. in the potentially industry-shaking copyright litigation about pre-1972 sound recordings, have been rapped by District Judge Colleen McMahon in Manhattan who has now ruled that she hadn’t erred when she failed to apply the 1940 case of RCA Manufacturing v. Whiteman in concluding last month that Sirius must pay royalties to broadcast pre-1972 records – telling the lawyers that their newly-cited precedent had been overruled 60 years ago.  “The only clear error in this case is O’Melveny’s” Judge McMahon wrote -telling the firm that they had “deliberately missing the point” and “doing nothing but raise red herrings” since making its initial appearance in the case in November. The ruling stems from a lawsuit in which the two founding members of the 1960s rock band The Turtles allege that Sirius infringed on the group’s rights under state law by playing its tracks without permission. Federal copyright law doesn’t govern sound recordings made prior to 1972, and Sirius has argued in its defence that New York law also doesn’t cover performance rights for pre-1972 sound recordings.



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