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More on This Week’s Class Action Suit

“By selling advertisements and through other means, the broadcaster profits handsomely from its exploitation of pre-1972 recordings”

Radio execs playing older music will no doubt be keeping a close eye on this week’s class action suit filed in California.

As RW reported earlier, three major broadcast groups this week were served a class action suit by ABS Entertainment that targets the digital rights to music the broadcasters play produced prior to Feb. 15, 1972, that isn’t covered by the Digital Millennium Copyright Act. Here’s more about it.

Three separate suits filed Monday in federal court in California court target iHeartMedia, CBS Corp. and Cumulus Media and seek injunctive relief and monetary damages. The suit claims the defendants “delivered music content through broadcast radio channels, HD radio channels, the Internet and mobile devices without consent.”

The suit against Cumulus states that the company “has chosen to copy tens of thousands of pre-1972 recordings to its servers and to transmit, copy, perform, broadcast and stream them to millions of users daily without authorization.”

ABS, which filed on its own behalf and all other similarly situated owners of sound recordings, says Cumulus and the other broadcasters are liable under California law for the unauthorized pre-1972 reproductions. The three lawsuits contain the same complaint language and demand jury trials with $5 million each in compensatory damages and an injunction to prevent use of pre-1972 music.

“By selling advertisements and through other means, the broadcaster profits handsomely from its exploitation of pre-1972 recordings,” according to the lawsuit.

ABS alleges the broadcasters are liable for violation of the California Civil Code, misappropriation and violation of California Business and Professional Code.

The lawsuits, which have been assigned to U.S. District Court Judge Percy Anderson in the Central District of California, are similar to several others filed against Sirius/XM concerning pre-1972 music, including the “Flo and Eddie” suit that found the company liable for playing songs by The Turtles. The satellite radiocaster settled a lawsuit earlier this year brought by Capitol Records.

(No doubt with just such a situation in mind, the National Association of Broadcasters and New York State Broadcasters Association only recently had filed “friend of the court” briefs in the “Flo and Eddie” controversy. In that filing, NAB said that although a district court had “stopped short” of a ruling that would encompass over-the-air broadcasting, the association asked the appeals court to “reject the ruling … and eliminate any doubt.”)

ABS Entertainment is an Arkansas-based company that has ownership to the sound recordings of Al Green, Ann Peebles, Otis Clay and several other artists, according to court documents.

CBS and iHeartMedia declined RW’s request seeking comment on the lawsuits.