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 U.S. District Judge Colleen McMahon rejected Sirius'
arguments that Flo & Eddie Inc, controlled by founding band
members Howard Kaylan and Mark Volman, did not own copyrights in
The Turtles' recordings such as "Happy Together," or gave it an
"implied" license to play Turtles songs.
She did, however, agree with the New York-based satellite radio
company that Flo & Eddie could recover damages for copyright
infringement only for the three years before it sued on Aug. 16,
2013, not six years as she had previously suggested.
A lawyer for Flo & Eddie said the plaintiff plans by an April 3
deadline to formally seek class action certification on behalf
of itself and other artists, rather than accept McMahon's
alternative of an immediate ruling on liability in its favor.
"We're obviously pleased that the judge sees the law the same
way we do," the lawyer Harvey Geller said in a telephone
interview.
A spokesman for Sirius had no immediate comment.
The lawsuit is one of a handful challenging Sirius and Pandora
Media Inc over their playing of songs recorded before Feb. 15,
1972. Though such songs are not covered by federal copyright
law, some recording artists and labels have won rulings
entitling them to copyright protection under individual state
laws.
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 Record sales have long been falling industrywide, forcing
artists and labels to depend more on online or satellite
services to make money.
Flo & Eddie has filed lawsuits in New York, California and
Florida, seeking more than $100 million for Sirius' alleged
infringements. In September, a federal judge in California found
Sirius liable for infringements under that state's laws.
The case is Flo & Eddie Inc v. Sirius XM Radio Inc et al, U.S.
District Court, Southern District of New York, No. 13-05784.
(Reporting by Jonathan Stempel in New York, editing by G Crosse)
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