In an opinion  yesterday in the case challenging Sirius satellite radio’s ability to broadcast songs predating the 1972 copyright act (see prior posts here), Judge McMahon rejected Sirius’s argument that two members of the band the Turtles (known for “Happy Together” and other songs) gave Sirius and implied license, or otherwise waived their rights, by appearing as guests on Sirius radio and not objecting to the Turtles songs being played for years on Sirius.

[W]hile Sirius wants this Court to infer, from the failure of Flo and Eddie’s principals to object to infringing conduct, that Flo and Eddie acquiesced to Sirius’s performance of Turtles recordings, mere acquiescence is insufficient to establish an implied license. Sirius would still have to produce “evidence of a meeting of the minds between the licensor and licensee such that it is fair to infer that the licensor intended to grant a nonexclusive license.” . . . . The appearances by Kaylan and Volman on Sirius (and possibly other, terrestrial radio stations) shows during which Turtles’ recordings were broadcast . . . are hardly “unmistakable” and “[un]ambiguous” evidence of a waiver of their right to invoke the benefits of their common law copyright — especially in view of the very lack of clarity over the scope of common law copyright protection that occasioned this lawsuit and companion lawsuits in other states.

Judge McMahon did not make a final ruling on the merits, however, since the case was pled as a class action, and, under Second Circuit law, class issues should precede the merits.  She gave the Turles the option either proceed individually, or pursue the matter as a class action.