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    Paul Fakler Discusses Pandora Ruling in BMI Case

    December 31, 2013

    Intellectual Property partner Paul Fakler was interviewed by World IP Review after a New York district court refused a bid by Pandora Media Inc. to prevent a group of music publishers from partially withdrawing work from Broadcast Music Inc (BMI).

    The article reported that the case arose after BMI-affiliated music publishers started withdrawing digital rights from Pandora, the online radio streaming service. Pandora argued that the publishers’ withdrawals are “ineffectual, as BMI operates under an antitrust consent decree that requires it to offer Pandora a licence to perform all compositions within the BMI catalogue since January 1, 2013. Judge Louis Stanton, who heard the case, said that the decree requires BMI to offer Pandora a licence to perform everything in the BMI catalogue.”

    Mr. Fakler said that the BMI decision is a “huge blow” for the music publishers involved in the case and that they will now have to decide whether to continue to license their works to BMI for performance on new media services like Pandora – in addition to “old world” outlets, which generate the bulk of their revenue – or withdraw completely.

    He added that the decision in the BMI case and a previous case involving the American Society of Composers, Authors and Publishers were “in principle the same,” and that “the judges agree on the fundamental issues – they both do not allow publishers to partially withdraw works from BMI’s repertory.” But Mr. Fakler added that the judge in the ASCAP case took a glass half full approach while Judge Stanton saw the glass as half empty. “Judge Cote – in a reasonable decision – allowed publishers to decide whether they want to withdraw their works, while Judge Stanton essentially revoked their agreements with the collecting societies.”