David Frear makes an excellent argument in defense of SXM's position:
(from WSJ)
Sirius XM to Appeal Decision in Turtles Lawsuit
Oct. 1, 2014 7:25 p.m. ET
Sirius XM Radio Inc. will appeal a federal-court decision that found the satellite radio company had violated California copyright law by playing songs by the Turtles without the 60s band's permission, a company executive said at a conference on Wednesday.
According to a transcript of his remarks at the Deutsche Bank Leveraged Finance Conference, Sirius XM Chief Financial Officer David Frear said "we intend to appeal [the] decision all the way through the appeal process." The remarks represented the company's first comment on the matter since the decision emerged early last week.
The Turtles' founding members filed the lawsuit last year because Sirius XM, like many digital music services, has never paid performance royalties on songs recorded before 1972, the year sound recordings were brought within the scope of federal copyright protection. Older recordings are protected under a patchwork of state laws, such as California's.
The summary judgment issued last week in the case found that Sirius XM had "performed" the band's songs in California without permission—and in doing so had violated state law.
Mr. Frear said that the ruling implied that "every AM/FM station, bar, restaurant, stadium, Internet webcast or satellite guy has been operating in violation of California law since 1982. Not one case brought by one act ever."
By that logic, he said, the Rolling Stones, the Beatles, Joni Mitchell, Creedence Clearwater Revival and Frank Sinatra have all been "neglectful in protecting their own economic interests."
Mr. Frear added that Sirius XM was "happy to pay" for pre-1972 recordings, but only if its competitors are forced to pay under federal law as well. Lawmakers in Washington are currently considering a broad overhaul of the copyright system, and Mr. Frear said he'd testified to Congress over the summer that "everybody should get paid" and "everybody should pay."
Under current U.S. law, terrestrial radio broadcasters pay royalties to songwriters, but not to performers, on the theory that such airplay drives record sales. Internet radio broadcasters and Sirius XM are required to pay royalties to performers and songwriters alike.
"There needs to be a change in the laws, and it shouldn't be coming from the bench, it should be coming from the legislature," he said.
Internet radio giant Pandora Media Inc., which doesn't pay performance royalties on pre-1972 works, either, has also said it would be open to supporting legislation that required everyone to pay.
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So, it looks to me that the outcome is far down the road. Sirius has deep pockets for this type of litigation. If it does eventually go against them, it may knock Pandora right out of the box.
