Pandora Says Turtles Royalty Suit Violates Its First Amendment Rights
If a big part of your business model hinged on playing rock's biggest early hits without having to pay for it, you'd probably try just about any tactic you could think of in order to hang onto that privilege -- and that's exactly what Pandora is doing in its current court battle against former Turtles members Mark Volmer and Howard Kalen, a.k.a. Flo and Eddie.
As previously reported, Volmer and Kalen have led the charge against a legal loophole, commonly exploited by services such as Pandora and SiriusXM, which has thus far allowed them to escape paying master recording performance royalties for the broadcast of songs released before 1972. That's obviously a huge amount of music, and there's a whole lot of money at stake here, which is probably why Pandora's plan for all-out war includes filing their own lawsuit accusing the singers of violating the company's First Amendment rights.
Billboard goes into further detail regarding the claim, which rests on an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion that says Volmer and Kalen are trying to "enjoin a broadcaster from communicating media to the public." If that seems like a somewhat desperate move, it's worth noting that Billboard's report also points out that this may just be a prelude to an effort on Pandora's part to secure a change in venue, because the case is currently before the same judge that recently ruled in Volmer and Kalen's favor against SiriusXM.
The SiriusXM suit, waged on similar grounds, ended with what the Hollywood Reporter termed "a crushing courtroom loss" for the digital radio service, and although SiriusXM plans to appeal, Volmer and Kalen's lawyers made it immediately clear that taking on Pandora was already a top priority.
"Pandora understands that having a vast range and array of music is critical to the success of any music service, which is why pre-1972 recordings constitute a significant part of the Music Service," reads the suit in part. "Pandora offers and advertises stations dedicated to pre-1972 recordings, such as '50s Rock 'n' Roll,' '60s Oldies,' 'Motown,' 'Doo-Wop, '70s Folk,' 'Early Jazz,' 'Standards,' 'Classic Soul,' 'Jam Bands' and 'Classical Rock.' ... Pandora is aware that it does not have any license, right or authority to reproduce, perform, distribute or otherwise exploit via the Music Service any pre-1972 recordings (including The Turtles' Recordings)."
After the company filed the countersuit (which you can read here), Pandora spokesperson Dave Grimaldi described it as a "procedural step," and suggested that all the company was looking for equal treatment under the law. "Pandora would be open to supporting the full federalization of pre-'72 sound recordings," he told Billboard, provided it took place "under a technology-neutral approach that affords libraries, music services and consumers the same rights and responsibilities that are enjoyed with respect to all other sound recordings."