There are no federal copyrights in sound recordings from before 1972, but some states have granted copyrights in those works.

In 2013, two members of the 1960s rock band The Turtles, who use the company name Flo & Eddie, sued Sirius XM and the Pandora online service, saying they should get paid royalties for their older tunes under state copyright laws. Major record labels filed similar lawsuits shortly thereafter.

It was an untested theory. For music copyright holders, until this week, it was a successful one. After Sirius suffered legal setbacks in cases in both New York and California, the company ended up paying out a $210 million settlement to the RIAA, while Pandora paid $90 million. The Turtles' California case settled just before trial last month on undisclosed terms. A case filed in Florida is still on appeal.

Yesterday, though, Sirius won a major victory in the New York Court of Appeals (an oddly named court that's actually New York state's highest court). The state's justices voted 4-2 to reverse the lower court, finding that there was no "public performance" right under New York common law.

History of sound

Until 1972, sound recordings weren't copyrighted at all. Even after Congress did create sound recording copyrights, those were meant to stop actual copying. The public performance right that came with copyright only applied to things like literary, musical, and dramatic works.

In 1995, Congress did create a right to control performances in sound recordings—but only applied it to digital radio services, not to radio stations, bars, or restaurants.

In yesterday's decision (PDF), a majority of the judges held that there's no right to control public performances under New York common law, either. In their view, the New York state copyright is strictly about copying.

"The holding of Mercury Records—that merely selling a record to the public does not divest the copyright holder of its exclusive interest in the right to copy and distribute the protected sound recording—constitutes protection against piracy, which all of the parties and amici here recognize as valid," wrote Judge Leslie Stein in her opinion. "That limited right does not include control over other rights in the work, such as public performance."

And since the 1940s, that has been the operating assumption. Record labels haven't been filing lawsuits or sending cease-and-desists to radio stations or other broadcasters because they never thought there was a "right of public performance." If there should be a public performance right in sound recordings, "the recognition of such a right should be left to the legislature."

California dreaming

Yesterday's decision not only makes it clear that pre-1972 copyright owners can't collect in New York, it's likely to influence the other states in which The Turtles (or others) may try to make an argument that they're owed money because of the common law.

"New York is highly influential on the scope of common law copyright," Helene Freeman, a partner at Phillips Nizer LLP, told Ars via e-mail. "Its refusal to find a performance right in prior decisions on which Flo & Eddie has pressed its case, as well, is likely to be considered persuasive in Florida. Other states are not likely to find a right in their common law that New York does not recognize."

There is still one important state that could find differently, and that's California, where litigation revolves around an actual state copyright statute and not common law. The Turtles settled their California lawsuit, but it's not a done deal—as a proposed class-action case, the settlement still needs a judge's approval. And the California issue will ultimately be decided by the judiciary in any case, since Pandora has taken the fight to the US Court of Appeals for the 9th Circuit.

Either way, though, the New York victory for Sirius will go a long way toward preventing what could have been a never-ending maze of state copyright suits. And those lawsuits wouldn't have just been limited to big companies or certain media.

"This win is important to all the AM/FM radio stations, college radio, small webcasters in New York, and even businesses like restaurants," said Mitch Stoltz of the Electronic Frontier Foundation in an interview with Ars. "They're not going to have yet another collective licensing agency knocking at their door and asking for royalties. This is policy-making done right. We can't just create new rights at the drop of a hat."