Georgia High Court Rules Internet Streaming of Pre-1972 Recordings Isn’T Piracy R
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MONDAY, MARCH 20, 2017 aily epA SMARTor READ FOR SMART READERSt Georgia High Court Rules Internet Streaming Of Pre-1972 Recordings Isn’t Piracy R. ROBIN MCDONALD MEDIA COMPANIES THAT stream music recordings made prior to 1972 over the inter- net without paying royalties or licensing fees are not violating Georgia’s criminal record piracy law, the state Supreme Court ruled in a unanimous opinion handed down Monday. The ruling is a win for iHeart- Media, owner of hundreds of AM and FM radio stations across the The Flamingos at the time of recording ‘I Only Have Eyes For You’. Anti-clockwise country, and for iHeartRadio, from bottom left: Zeke Carey, Tommy Hunt, Paul Wilson, Jake Carey, Terry Johnson and Nate Nelson. a radio streaming service that allows listeners to customize and Barbara Sheridan over The legal question at the their music selections and access iHeart’s web broadcasts of vin- heart of the federal case and them for free through a variety tage doo-wop, jazz and rhythm Monday’s state Supreme Court of electronic devices. & blues recordings to which the ruling addresses the broadcast The high court’s ruling stems Sheridans hold the rights. of recordings made prior to from a federal civil racketeer- Art Sheridan, founder of 1972, the year the U.S. Congress ing case now pending in the Chicago’s Chance Records and passed a law extending copy- Middle District of Georgia Sabre Records, holds the con- right protection to music record- where iHeartMedia was sued tracts and intellectual property ings. That law did not extend by former Chicago record rights to dozens of recordings copyright protection retroac- company owners Art Sheridan made in the ‘50s and ‘60s. tively to music recordings made DAILY REPORT MARCH 20, 2017 prior to its passage. Instead, Con- tracks “for a single use” that without licensing agreements or gress left it to the states to decide remain on a listener’s electronic royalty payments, according to whether or how to protect the device only temporarily. “There iHeart’s attorneys. The company owners of the intellectual prop- is,” he concluded, “no significant is represented by Daniel Griffin erty and contract rights of older difference in either the user expe- and Michael Kohler at Atlanta’s master recordings, according to rience or the nature of the broad- Miller & Martin, Latham & court pleadings. cast of sound recordings between Watkins attorneys Andrew Gass Last September—after iHeart’s terrestrial AM/FM and internet and James Lynch in San Francisco attorneys argued that the Sheri- transmissions of the type offered and former U.S. Solicitor Gen- dans’ claims should be tossed by iHeartMedia in this case.” eral Gregory Garre and Jonathan because the state of Georgia In a footnote, Melton noted that Ellis in Washington. precludes radio and television the U.S. Court of Appeals for the The Sheridans’ counsel in the broadcasts from being consid- Second Circuit in New York last federal case—California attor- ered a form of record piracy— year in a similar case against Pan- neys Tony Abner of Abner & U.S. District Judge Leslie Abrams dora Media defined online music Fullerton and Justin Sobodash asked the Supreme Court of streaming as “radio,” regardless and attorneys Matthew Galin Georgia whether under Georgia of any technological differences and Howard Foster of Chicago’s laws internet streaming could be between traditional radio and FosterPC—argued that as tech- considered a form of radio broad- internet broadcasts. nology has changed, so must the cast exempt from the state record In Abrams’ order certifying the concept of recording piracy. “In piracy statute. question to the Georgia Supreme the digital age, piracy takes on a The state Supreme Court heard Court, the federal judge noted digital form,” they contended in a oral arguments in January. that the U.S. Court of Appeals for federal pleading, calling iHeart’s On Monday, the Supreme Court the Eleventh Circuit in Atlanta ability to earn millions of dol- answered the certified question considered a similar case in Flor- lars in advertising on its pre-1972 with a unanimous yes. ida against Sirius XM Radio and music broadcasts “modern-day Justice Harold Melton wrote deferred to the state Supreme corporate piracy.” that online music streaming ser- Court of Florida to interpret On Monday, Abner said he vices qualify as “a related use” to Florida’s statute on pre-1972 was not aware of the Georgia a radio broadcast transmission recordings. Supreme Court ruling and would and that streamed sound record- The Sheridans have filed more have no comment on it. The Daily ings are “qualitatively the same” than a dozen similar actions in Report has contacted Sobo- as traditional AM/FM radio California, New York, Florida, dash and Foster but have not yet broadcasts even though “some New Jersey and Illinois challeng- reached them. iHeart attorneys technological differences exist.” ing the right of music streaming Griffin and Ellis referred ques- Melton noted that iHeart’s services to make pre-1972 music tions to Garre, who could not be online broadcasts offer music recordings available to listeners reached. Reprinted with permission from the 3/20/17 edition of the DAILY REPORT © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. Contact: 877-257-3382 [email protected] or visit www.almreprints.com. # 451-03-17-03.