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In re Petition of Pandora Media, Inc.

United States District Court, S.D. New York

March 18, 2014


Decided March 14, 2014

For applicant Pandora Media, Inc.: Kenneth L. Steinthal, Joseph R. Wetzel, Jason Blake Cunningham, Katherine Merk, King & Spalding, LLP, San Francisco, CA; Jeffrey Scott Seddon, King & Spalding, LLP, New York, NY; Mary Katherine Bates, King & Spalding, LLP, Atlanta, GA; Marc Brian Collier, Fulbright & Jaworski LLP, Austin, TX.

For the American Society of Composers, Authors and Publishers: Jay Cohen, Eric Alan Stone, Darren W. Johnson, Amy E. Gold, Lynn Beth Bayard, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY; Richard H. Reimer, Christine A. Pepe, American Society of Composers, Authors and Publishers, New York, NY.


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I. The American Society of Composers, Authors and Publishers

A. ASCAP Background

B. The ASCAP Consent Decree

II. The Evolution of the Radio Industry

III. The RMLC-ASCAP License Agreement for the Period 2010-2016

IV. Pandora

A. Pandora's Music Genome Project

B. Pandora Premieres

C. Pandora's Comedy Programming

D. Pandora's Revenue

E. Pandora's Competitive Environment

V. Pandora's Licensing History with ASCAP

VI. The April 2011 ASCAP Compendium Modification

A. Overview and Context

B. Public Performance Rights for Compositions versus Sound Recordings

C. ASCAP-Publisher Negotiations Prior to the Compendium Modification

D. The Compendium Modification Allowing New Media Withdrawals is Enacted.

E. ASCAP Provides Administrative Services for Withdrawing Publishers.

VII. A Second Compendium Modification in December 2012: the " Standard

Services" Agreement

VIII. Pandora Negotiates Direct Licenses with EMI, Sony, and UMPG and Fails

to Negotiate an Agreement with ASCAP.

A. The Pandora-EMI License Negotiations

B. The Pandora-ASCAP License Negotiations

C. The Pandora-Sony License Negotiations

D. The Pandora-UMPG License Negotiations

IX. September 17 Partial Summary Judgment Opinion

X. Other Licensing Agreements Put Forth as Benchmarks

A. The Pandora-SESAC License

B. Apple's iTunes Radio Licenses with Publishers and PROs


I. ASCAP's Rate Proposal of 1.85% for 2011 and 2012

II. ASCAP's Rate Proposal of 2.50% for 2013 and 3.00% for 2014 and 2015

A. Presumption of a Single Rate

B. Pandora's Direct Licenses with Sony and UMPG

1. ASCAP and Publisher Coordination

2. The Pandora-Sony License

3. The Pandora-UMPG License

C. ASCAP's Secondary Benchmarks: the SESAC and Apple Licenses

1. The Pandora-SESAC license

2. The Apple Licenses

D. ASCAP's Theoretical Arguments and Motivations

1. An Increase in Competition

2. Demand for Variety

3. Disparity Between Sound Recording and Composition Fees

4. Cannibalization of Music Sales

5. Music Intensity

6. Pandora's Success

III. Whether Pandora is Entitled to the RMLC 1.70% Rate

IV. Publisher Concerns Regarding the Consent Decree and the Rate Court


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DENISE COTE, United States District Judge.


Pandora Media Inc. (" Pandora" ) has applied for a through-to-the-audience blanket license to perform the musical compositions in the repertoire of the American Society of Composers, Authors and Publishers (" ASCAP" ) for the period of January 1, 2011 through December 31, 2015. The parties having been unable to reach agreement on an appropriate licensing fee, pursuant to Article IX of the consent decree under which ASCAP operates -- known as the Second Amended Final Judgment (" AFJ2" ), see United States v. ASCAP, Civ. No. 41-Civ-1395, 2001 WL 1589999 (S.D.N.Y. June 11, 2001) -- Pandora requested on November 5, 2012 that this Court set a rate for that licensing fee.

The parties disagree as to which are the most appropriate benchmarks for the license rate here. Pandora asserts principally that it is similarly situated to radio stations licensed through a 2012 agreement between the Radio Music License Committee (" RMLC" ), which represents commercial radio stations, and ASCAP, and is therefore entitled to the rate in that license. Pandora also points to a direct license agreement between Pandora and EMI Music Publishing Ltd. (" EMI" ) that was entered into after EMI purported to withdraw its new media[1] licensing rights from ASCAP in 2011.

ASCAP proposes a variety of benchmarks, including the direct licensing agreement into which Pandora entered with EMI, as well as Pandora's direct licenses with Sony/ATV Music Publishing LLC (" Sony" ) and Universal Music Publishing Group (" UMPG" ) in the wake of those publishers' putative withdrawals of new media licensing rights from ASCAP. ASCAP also puts forward other agreements between music rights holders and music users as secondary benchmarks.

The parties have proposed the following rates, expressed as a percentage of revenue: ASCAP proposes a rate of 1.85% for the years 2011 and 2012, 2.50% for 2013, and 3.00% for the years 2014 and 2015. Pandora proposes a rate of 1.70% for all five years. This Opinion sets the rate for all five years at 1.85%.

The task at hand is to determine the fair market value of a blanket license for the public performance of music. As this Court explained in a prior rate court proceeding:

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The challenges of [determining a fair market rate for a blanket music license] include discerning a rate that will give composers an economic incentive to keep enriching our lives with music, that avoids compensating composers for contributions made by others either to the creative work or to the delivery of that work to the public, and that does not create distorting incentives in the marketplace that will improperly affect the choices made by composers, inventors, investors, consumers and other economic players.

In re Application of MobiTV, Inc., 712 F.Supp.2d 206, 209 (S.D.N.Y. 2010), aff'd sub nom. ASCAP v. MobiTV, Inc., 681 F.3d 76 (2d Cir. 2012).

A bench trial was held from January 21 through February 10, 2014. Without objection from the parties, the trial was conducted in accordance with the Court's customary practices for non-jury proceedings, which includes taking direct testimony from witnesses under a party's control through affidavits submitted with the Joint Pretrial Order. The parties also served with the Joint Pretrial Order copies of all exhibits and deposition testimony that they intended to offer as evidence in chief at trial.

Prior to trial, ASCAP presented affidavits constituting the direct testimony from ten witnesses, including four ASCAP employees, two music publishing executives, one composer, and three experts.[2] The ASCAP employees are CEO John LoFrumento; Vice President for New Media and Technology Matthew DeFilippis; Director of Licensing Vincent Candilora; and Senior Vice President Seth Saltzman. ASCAP's music publisher witnesses were Peter Brodsky, the Executive Vice President of Business and Legal Affairs at Sony; and Zach Horowitz, the Chairman and CEO of UMPG. ASCAP's composer-witness was Brett James. ASCAP's experts were Dr. Kevin Murphy, Dr. Orley Ashenfelter, and Robin Flynn. ASCAP also provided designated deposition excerpts from six witnesses.[3]

Pandora provided affidavits constituting the direct testimony of eight witnesses, four of whom are current or former Pandora employees and four of whom are experts. The current or former Pandora employees were founder and Chief Strategy Officer Timothy Westergren; former CEO Joseph Kennedy; Chief Technology Officer Thomas Conrad; and Chief Marketing Officer Simon Fleming-Wood. Pandora's experts were Dr. Leslie Marx, Dr. Roger Noll, William Rosenblatt, and Fred McIntyre. Pandora also provided the designated deposition testimony of a number of witnesses.[4]

The parties also offered deposition designations of certain witnesses as joint exhibits.[5] At the trial, the parties waived their right to cross-examine several of the witnesses. The witnesses who testified at trial were Brodsky, LoFrumento, DeFilippis, Murphy, Flynn, Marx, Rosenblatt, Horowitz, Saltzman, Noll, Conrad, Kennedy,

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Fleming-Wood, and McIntyre. In addition, Pandora called its outside counsel, Robert Rosenbloum, as a witness.

This Opinion constitutes the Court's findings of fact and conclusions of law following that trial. The factual findings are principally set forth in the first section of this ...

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