May 29, 2017 / 1:04 PM

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Pandora Cries First Amendment in Copyright Lawsuit with The Turtles

The Turtles  ( Courtesy YouTube )

Pandora is continuing its fight against The Turtles and all music artists recorded before 1972. Mark Volmer and Howard Kalen, aka Flo & Eddie, filed suit against the streaming music service in September after their successful lawsuit against SiriusXM. Members of The Turtles want compensation, but Pandora in a recent motion said the band is infringing on the service's First Amendment rights to play the group's music, Billboard reports.

The issue is that the United States did not have a master recordings copyright law until 1972, so everything recorded before that year has been played on Pandora and SiriusXM without compensation for the artists. Volmer and Kalen decided to try the case at the state level, which worked after a judge in California ruled that the satellite radio provider had to pay up. That is the same judge hearing the Pandora case — the service is hoping to receive a change of venue.

The pair also secured a win in November in a New York courtroom.

Pandora is now crying First Amendment.

"Flo & Eddie's complaint is legally defective on its face and burdens Pandora's First Amendment rights," the new motion reads. "Plaintiff seeks to enjoin a broadcaster from communicating media to the public. The anti-SLAPP law was created precisely for baseless attacks like this."

If The Turtles win, it will be a huge blow to Pandora, but appeals are extremely likely. SiriusXM plans to appeal its case as well.

"Pandora understands that having a vast range and array of music is critical to the success of any music service, which is why pre-1972 recordings constitute a significant part of the Music Service," Volmer and Kalen's suit reads. "Pandora offers and advertises stations dedicated to pre-1972 recordings, such as '50s Rock 'n' Roll,' '60s Oldies,' 'Motown,' 'Doo-Wop, '70s Folk,' 'Early Jazz,' 'Standards,' 'Classic Soul,' 'Jam Bands' and 'Classical Rock.' ... Pandora is aware that it does not have any license, right or authority to reproduce, perform, distribute or otherwise exploit via the Music Service any pre-1972 recordings (including The Turtles' Recordings)."