Pandora Claims The Turtles’ Lawsuit Violates Their First Amendment Rights

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Pandora is striking back at Flo and Eddie of the Turtles, who sued Pandora for “publicly performing” pre-1972 music without paying royalties. Flo and Eddie recently won a similar lawsuit against SiriusXM.

Pandora has now filed an “anti-SLAPP” motion to protect their “First Amendment right to publicly perform artistic works in a manner entirely permitted by California“.

SLAPP stands for “strategic lawsuit against public participation”. An “anti-SLAPP” is meant to protect parties from costly lawsuits regarding constitutionally protected activities. Pandora is claiming that Flo and Eddie’s lawsuit is violating their First Amendment right to broadcast pre-1972 works without paying a performance royalty. Even though Pandora is a digital service, they say they are covered by the same rules that apply to radio and television.

Pandora also says that Flo and Eddie’s claims would drastically affect anyone in California who has ever broadcasted a pre-1972 recording.

If the motion isn’t struck down, Flo and Eddie would have to prove that they have a reasonable probability of winning the case because Pandora violated existing laws. Even if the motion isn’t accepted, Pandora can appeal.

See Pandora’s full motion here.


Nina Ulloa covers breaking news, tech, and more. Follow her on Twitter: @nine_u

22 Responses

  1. Anonymous

    Say BYE BYE to Pandora!!!!!!
    BYE BYE!!
    Say BYE BYE to Pandora!!!!!!
    BYE BYE!!

    • Paul L.

      Nobody ever wants to pay the band.

      Members of Frankie Lymon & The Teenagers have stated that when “Why Do Fools Fall In Love” was pouring out of every radio and jukebox in the U.S., Moishe told them “Don’t come down here no more, or I’m gonna have to hurt you or kill you.”

  2. Anonymous

    Throw Pandora down the well!
    So musicians can be free [so musicians can be free]!!
    We will make a lot of money [we will make a lot of money]!!
    And have a big party [and have a big party]!!

    • Remi Swierczek

      Just make it $10 billion dollar music store! Happiness and cash for everyone.

      Simple rework with Shazam and other music ID folks fired as a PIMPS of music and hired as a CASHIERS of the same.

    • Anonymous

      Make a lot money… how exactly? The only other radio service that even comes close to Pandora in royalties being paid is SiriusXM, who is arguably near their growth limit. There doesn’t seem to be any companies in position to take their place. Certainly none that will pay better than Pandora. Are sales magically going to rise from the death of a radio service that didn’t cannibalize sales in the first place?

      It seems that if Pandora does die then artists will be making even less money than they do now.

  3. Central Scrutinizer

    Pandora better say a Hail Mary first. This is a last ditch long shot to win this case……and rack up some more billable hours of course because you know they’re lawyers.

  4. Anonymous

    Every time a tech company gets caught skirting the law, the first thing they whine is “freedom of speech”!

  5. Paul Resnikoff

    Another option for Pandora would be to resolve the issue amicably, and figure out a way to pay some reasonable royalty for pre-1972 recordings. That would then set a precedent for other forms of broadcast media, and attempt to (a) take a small step towards simplifying an extremely complicated and ineffective royalty structure around non-interactive broadcasts, and (b) also take a very small step towards improving Pandora’s horrendous reputation among artists, labels, songwriters and increasingly, music fans.

    Leadership: sometimes it’s not about billable hours, not about notching the stock up a half-point in afternoon trading, not about loopholing laws and wasting court resources to ruthlessly slash royalties and boost bonuses.

    Still reading us, Tim?

    • Rockstream

      Paul, settling cases is not kumbaya. Sometimes settlement talks need some legal street-fighting. Did you read the court filing you posted? Pandora’s lawyers make a pretty good case that “California copyright protection ended decades ago for all of the sound recordings Plaintiff is suing over.” Will Pandora win on this? Could happen. Does this reinforce Pandora’s settlement position? Absolutely. Like a brush-back pitch in baseball, this keeps Flo & Eddie from feeling too confident. The whole pre-1972 recording thing will get settled, but Pandora’s lawyers understand that first they need to kick a little ass. No matter what DMN commenters think about it.

      • Paul Resnikoff

        I would argue that this is exactly the type of combative, legal ‘us vs. them’ thinking that makes Pandora look outrageously selfish, needlessly combative, profit-obsessed, and well, artist-screwing. What this industry needs is leadership on important issues, and the best people to do this are the most powerful ones.

        Undoubtedly, lawyers love this sort of combative thinking because it translates into lots of billable hours. But at what cost? Pandora’s image has suffered drastically, with artists like Pink Floyd speaking up for the masses of artists and songwriters that feel screwed by this self-interested corporation. What happens when there’s an issue at Pandora, or the law shifts and artists can remove their music? Maybe now you can understand why executives like Tim Westergren are cashing out as much as possible, as quickly as possible.

        Leadership means crafting solutions, inviting all parties — including competitors — to the table, and trying to forge something that is fair. Believe me, Pandora could have avoided this entire lawsuit with the Turtles entirely had they had that approach.

        Forget about what the fine print does or doesn’t say, what’s technically ‘right’ according to some dusty statute, and what some judge does or doesn’t think. And, for crying out loud, forget about the damn stock price! Tim Westergren, ditch your 14-bathroom mansion blueprints and spill the the Kool-Aid down the drain, let’s build something amazing that doesn’t happen at the expense of the artists and content owners you supposedly love.

        Now that is leadership.

        • Anonymous

          So what you are saying is Pandora is simply doing what the music industry has been doing for years? The RIAA and major labels have been litigious for years. “Outrageously selfish, needlessly combative, profit-obsessed” would accurately describe the general public’s opinion of the music industry.

          “Leadership means crafting solutions, inviting all parties — including competitors — to the table, and trying to forge something that is fair. Believe me, Pandora could have avoided this entire lawsuit with the Turtles entirely had they had that approach.”

          Have you paid much attention to the Sound Exchange royalty debates? Pandora has tried very hard over the years to craft solutions. All the music industry has done is tried to price them out of business. The real non-pureplay royalty rates are completely unsustainable. There is no “leadership approach” when the artists/labels have a “my way or the highway” attitude. Even back in 2007 Pandora had to be on the defensive, as the music industry tried to price them out of business before their business even got off the ground.

          Not to mention the fact that no one in the music industry appears to be willing to do math, continuously citing incorrect royalties and ignoring the difference between a play on Pandora and a play on terrestrial radio.

          • Bandit

            Maybe RIAA et al want to price Pandora and others like it out of business. Maybe they would rather negotiate directly with companies like Spotify and others who have similar business models.

    • Bandit

      I think it’s genius. He has managed to con a lot of investors into giving him bucket loads of money to run a company that has as its largest expense a cost established by a government committee on an arbitrary basis.

    • John M. Keynes

      Keep laughing, I guess.

      He’s a songwriter who’s now worth about $50M (a good chunk of that in cash already from selling off Pandora stock) and isn’t involved with the company any more so, none of these legal wranglings really affect him too much.

      I would imagine Tim Westergren is able to laugh a lot harder than you… 🙁

      • Adam C Smith

        Yes, i’m sure he is laughing harder, which indicates his complete disconnect. His is maniacal,…mine is that he whistles in the dark so tunelessly.

  6. dhenn

    Fck Pandora!!! They are the biggest low-lifes to ever hit the music industry!