On April 13, 2016, the U.S. Court of Appeals for the Second Circuit certified to the New York Court of Appeals the following question: “Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?” On September 1, 2016, we filed an amicus with Pandora and the NY SRA before the New York Court of Appeals on that question. We argued that New York common law did not apply to pre-1972 recordings and, therefore, there is no New York specific requirement for restaurants to pay additional fees to play them.
In December 2016, the National Association of Broadcasters and a group of intellectual property law professors also filed amici curiae briefs voicing similar arguments in opposition to the allegations put forward by the plaintiffs. On December 28, 2016, a majority of the New York Court of Appeals agreed with our argument and found that “New York common-law copyright does not recognize a right of public performance for creators of sound recordings.” The parties were directed to submit a letter brief to the Second Circuit addressing the effect of the New York Court of Appeals’ decision on the case. The parties did so on Monday, January 16, 2017. The Second Circuit on February 16, 2017, made official what New York’s highest court said in December 2016, i.e., state law does not require radio companies like Sirius XM, and the restaurants that use them, to pay millions in new royalties to play songs recorded before 1972.