Now You Know What Steve Miller Was Talking About

Really, it's just a scandal that this sort of thing continues to happen:

The 2nd Circuit says it needs guidance on whether state law gives copyright holders performance rights.

On Wednesday, the 2nd Circuit Court of Appeals avoided handing down a definitive ruling on the closely watched issue of whether owners of pre-1972 sound recordings have performance rights and can stop SiriusXM from broadcasting them without agreed-upon compensation. The federal appeals court wants the New York Court of Appeals to address the issue first.

SiriusXM is fighting putative class-action lawsuits, led by Flo & Eddie of The Turtles, which contend that since federal copyright law protects sound recordings after 1972, it's up to state laws to protect works authored before then. The implications of the argument would theoretically mean that bars, restaurants, sports stadiums and other enterprises lose the right to perform the early works of Bob Dylan, The Rolling Stones and others.

In November 2014, New York federal judge Colleen McMahon followed a California judge in giving Flo & Eddiea significant victory and one that was unsettling for satellite and terrestrial radio operators. She sympathized with the defendant by writing that the "accepted fact of life in the broadcast industry for the last century" was that nobody was paying royalties for public performance. The judge added that common-law copyrights do in fact confer such benefits.

The case then went up to the 2nd Circuit, but technically, what's required is an interpretation of New York law. As such, the 2nd Circuit today certifies the following question for the state appeals court: Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?

The decision today takes no firm position, though it does express at least some skepticism.

"With no clear guidance from the New York Court of Appeals, we are in doubt as to whether New York common law affords Appellee a right to prohibit Appellant from broadcasting the sound recordings in question," writes 2nd Circuit judge Guido Calabresi.

The courts aren't taking a stand because, far too often, the judiciary has ruled in favor of record companies because they're the ones with the expensive lawyers; many artists can't afford the sophisticated legal representation necessary to "win back" control of their art. The law is based on precedent, and an expensive legal team can out-hustle anyone making peanuts. That's not to say that artists haven't won over the years--they certainly have. But the law overwhelmingly favors anyone who can tie up proceedings for years.

As a matter of sheer decency, Sirius XM should pay for the music they play regardless of copyright law. In the case of vintage recordings where there's no one who can be paid, apply those funds to a general artist fund to be distributed evenly.