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Pandora wins a summary judgment in ASCAP rights tussle

Pandora scored a clear, and sharply worded, summary judgment from U.S. District Judge Denise Cote, enabling the Internet radio service to continue “performing” (streaming) works included in ASCAP’s entire inventory. The ruling refutes ASCAP’s attempt to narrow Pandora’s right to perform portions of the ASCAP-represented publishers catalog, when the publishers choose to withhold certain rights. In this case, the publishing arms of EMI Music, Sony/ATV, and Universal Music tried to pull their new-media rights representation from ASCAP, in order to negotiate directly with interactive platforms such as Pandora.

The court’s ruling establishes the definition of ASCAP “repertory” as it relates to Pandora’s right to blanket use of works represented by ASCAP. The ASCAP argument sought to understand repertory as a collection of rights agreements between ASCAP and publishers. Cote’s rejection referred to that reasoning as “a gerrymandered parcel of ‘rights’.” Pandora’s stance, based on the consent decree that has governed ASCAP’s rights bestowal since 1941, held that its blanket license allowed Pandora to leverage the ASCAP catalog as a stable collection of works, immune to any transient withholding of rights by member publishers. Cote: “Pandora is right.”

And, more bluntly from the court, “‘All’ means all.” Cote’s decision spells it out like this: “So whether ASCAP purports to categorize Pandora as an ‘applicant’ or a ‘licensee,’ Pandora’s right to perform the compositions in the ASCAP repertory extends to all of ASCAP’s repertory and ASCAP may not narrow that right by denying Pandora the right to play the songs of publishers who have withdrawn new media licensing rights from certain songs while keeping the songs in ASCAP’s repertory to be licensed for performance by other music users.”

Pandora’s response to the decision noted “the attempt by certain ASCAP-member publishers to unfairly and selectively withhold their catalogs from Pandora.” ASCAP’s response noted “the true value of songwriters’ and composers’ performance rights, a value that Pandora’s music streaming competitors have recognized by negotiating rather than litigating with creators of music.” Both notes noted.

Yesterday’s ruling is a stepping stone to the Pandora/ASCAP rate trial before the ASCAP Federal Rate Board, in a process that mediates the terms of a blanket license when negotiations fail. That trial starts on December 4.

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Brad Hill

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