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 digital platforms such as Pandora.
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repertory and ASCAP may not narrow that right by denying Pandora the right to play the songs of publishers who have withdrawn new media licensing rights from certain songs while keeping the songs in ASCAP’s repertory to be licensed for performance by other music users.”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 arbiters the terms of a blanket license when negotiations fail. That trial starts on December 4.