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Pandora Media, Inc. v. American Society of Composers

United States Court of Appeals, Second Circuit

May 6, 2015

PANDORA MEDIA, INC., Petitioner-Appellee,
v.
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Respondent-Appellant, UNIVERSAL MUSIC PUBLISHING, INC., SONY/ATV MUSIC PUBLISHING LLC, EMI MUSIC PUBLISHING, Intervenors-Appellants

Argued March 19, 2015

Page 74

Appeals from the United States District Court for the Southern District of New York. No. 12-cv-8035 -- Denise Cote, Judge.

Appeals from an opinion and order of the United States District Court for the Southern District of New York (Cote, J.) setting the Pandora-ASCAP licensing rate for the period of January 1, 2011 through December 31, 2015, and from all preliminary findings, rulings, and orders subsumed therein, including an opinion and order granting summary judgment to Petitioner-Appellee on the ground that the consent decree governing Respondent-Appellant's licensing activities unambiguously precludes partial withdrawals of public performance licensing rights. We AFFIRM.

JEFFREY S. BUCHOLTZ, King & Spalding LLP, Washington, DC (Ethan P. Davis, King & Spalding LLP, Washington, DC; Kenneth L. Steinthal, Joseph R. Wetzel, King & Spalding LLP, San Francisco, CA, on the brief), for Petitioner-Appellee.

JAY COHEN, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, N.Y. (Eric A. Stone, Darren W. Johnson, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; Richard H. Reimer, American Society of Composers, Authors and Publishers, New York, NY, on the brief), for Respondent-Appellant.

DANIEL P. COLLINS (Glenn D. Pomerantz, Melinda LeMoine, on the brief), Munger, Tolles & Olson LLP, Los Angeles, CA, for Intervenor-Appellant Universal Music Publishing, Inc.

DONALD S. ZAKARIN (Frank Phillip Scibilia, Erich C. Carey, on the brief), Pryor Cashman LLP, New York, NY, for Intervenors-Appellants Sony/ATV Music Publishing LLC and EMI Music Publishing.

Scott A. Edelman (Linda Dakin-Grimm, Atara Miller, on the brief), Milbank, Tweed, Hadley & McCloy LLP, New York, NY, for Broadcast Music, Inc. as amicus curiae in support of Respondent-Appellant.

Renata B. Hesse, Acting Assistant Attorney General, United States Department of Justice, Antitrust Division, Washington, DC, for the United States of America as amicus curiae.

Before: LEVAL, STRAUB, and DRONEY, Circuit Judges.

OPINION

Page 75

Per Curiam:

These appeals are taken from an opinion and order of the United States District Court for the Southern District of New York (Cote, J. ), dated March 14, 2014, filed under seal and entered March 14, 2014, and filed publicly March 18, 2014 and entered March 19, 2014, along with all preliminary findings, rulings, and orders subsumed therein, including an opinion and order dated and entered September 17, 2013.

At issue are two separate decisions of the district court. The first granted summary judgment to Petitioner-Appellee Pandora Media, Inc. (" Pandora" ) on the issue of whether the consent decree governing the licensing activities of Respondent-Appellant American Society of Composers, Authors and Publishers (" ASCAP" ) unambiguously precludes partial withdrawals of public performance licensing rights. See In re Pandora Media, Inc., No. 12 CIV. 8035 (DLC), 2013 WL 5211927 (S.D.N.Y. Sept. 17, 2013). The second decision, issued after a bench trial, set the rate for the Pandora-ASCAP license for the ...


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