UNSPECIFIED - JANUARY 01: Photo of Turtles (Photo by Michael Ochs Archives/Getty Images)
Photograph by Michael Ochs Archives/Getty Images
By Jeff John Roberts
June 23, 2015

In the long-running fight over streaming music, the world has been transfixed by the seemingly unstoppable force that is Taylor Swift trying to nudge the unmovable object that is Apple. But meanwhile, in the shadows of that battle, SiriusXM(SIRI) won a victory this week in another dispute, over when companies should have to pay for playing digital music.

The victory came in a Florida federal court, where a judge agreed that the satellite radio provider does not have to pay a new type of royalty to performers for music they recorded over forty years ago.

The ruling is a setback to the recording industry and former members of the band The Turtles, Flo and Eddie, who are leading class-action suits in several different states against Pandora and SiriusXM over pre-1972 recordings.

While the legal details are arcane, the lawsuits are significant because every digital service that plays music—from YouTube to Spotify to Apple—will have to either pay more for the older music or else play fewer oldies.

 

For now, the final outcome is uncertain, since Flo and Eddie have lost in Florida, but won lower court rulings on the same issue in New York and California.

The legal dispute has been an emotional one since—as is the case with Taylor Swift’s fight with Apple—it hinges on when musicians should be paid for others playing their songs.

The moral case of Flo and Eddie may be weaker, however, since the “Happy Together” singers are seeking a new type of royalty payment altogether. (They are asking courts to order payment for performance royalties for pre-1972 songs under state law, even though the rest of copyright law is federal. Under the current system, songwriters are paid for pre-1972 performances, while both songwriters and performers are paid for CDs and downloads).

If Flo and Eddie prevail, the new payouts will raise operating costs for Apple, SiriusXM and every other music service. These costs would in turn be passed on to consumers, and also cut into the overall pie from which newer musicians like Swift are also paid.

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