In a motion Friday, the satellite radio company Siruis moved to dismiss a proposed class action (covered in this post) by members of the band The Turtles asserting New York common law copyright claims for songs recorded prior to the 1972 federal Copyright Act. The motion argues:

Plaintiff has no explanation for why, if these claimed state-law rights in Pre-1972 Recordings in fact exist, Plaintiff waited more than four decades to assert them, and no explanation for why Plaintiff has asserted them against just one broadcaster (more than a dozen years after the inception of its commercial operations) out of many thousands of music users engaging in precisely the same conduct in the State of New York . . . . The role of a district court sitting in a diversity action is to apply authoritative New York law, not reformulate it in the radical fashion sought by Plaintiff. Indeed, that sought-after expansion implicates important policy considerations that only confirm the inappropriateness of the unprecedented relief sought herein. The only rationale Plaintiff has mustered for a ruling in its favor is a myopic and highly one-sided notion of “fairness,” which reduces to the plea that it should be paid for Sirius XM’s uses of its sound recordings. This conception of intellectual property rights is both boundless and woefully incomplete. It ignores the very raison d’etre for copyright protection—creating incentives for the creation of new works—application of which to works created prior to 1972 would, by definition, be inapposite. It also ignores that the retroactive application of such a newly-crafted right could not plausibly be described as “fair,” providing Plaintiff as it would an entirely undeserved windfall, while imposing significant, retroactive penalties on Sirius XM (and, by necessary implication, countless other New York entities) for conduct undertaken for decades in good-faith reliance on existing law. Both policy and precedent defeat Plaintiff’s claims.