SiriusXM Settlement With Flo & Eddie Has 'Potential to Solidify' Top Music Services' Dominance, EFF Says

SiriusXM's recent move to settle Flo & Eddie's lawsuit against the music service in U.S. District Court in Los Angeles “has the potential to solidify the dominant position of big music services … at the expense of new music services, independent and Web-based radio stations, and the listening public,” said Electronic Frontier Foundation Staff Attorney Mitch Stoltz in a blog post. Flo & Eddie, the owners of the Turtles' “Happy Together” and the duo's other music, filed a notice with the court last week saying Sirius agreed to pay at least $25 million to settle the California class-action lawsuit, in which the artists and other artists in the class sought compensation for performances of their pre-1972 recordings. The settlement amount could reach as high as $99 million depending on future outcomes (see 1611290054). EFF was involved with the suits, arguing the potential “pitfalls that could come from creating new state copyright law rights,” Stoltz said. EFF said in its brief to the Florida Supreme Court in that court's review of the on-hold Florida case from the 11th U.S. Circuit Court of Appeals that “judicial creation of a new exclusive right for works that have been publicly performed without restriction for more than 40 years will put Florida at odds with federal policy and that of most other states, complicating the business of digital music delivery. Accommodating the numerous stakeholders and interests involved is a task for the legislature, not the courts.” The legal “landscape is now more uncertain for music services and radio stations who aren’t” Sirius, Stoltz said. “The different states could still reach different answers to the question of whether those services must pay royalties for the performance of pre-1972 recordings.” If any of the courts “decide that state law covers those performances, music services and radio stations will have to begin the complex process of negotiating terms and royalties -- and that process will likely involve more expensive litigation,” Stoltz said. “Sirius XM, meanwhile, has already secured permission to play any pre-1972 recording on its service at predictable royalty rates for years to come, giving it a major advantage over new music services.” Sirius didn't comment.