FLO & EDDIE, INC., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent,
v.
SIRIUS XM RADIO, INC., a Delaware Corporation, Appellant, et al., Defendants.
Court of Appeals of New York.https://leagle.com/images/logo.png
Argued October 18, 2016.
Decided December 20, 2016.
Attorney(s) appearing for the Case
O'Melveny & Myers LLP, Washington, D.C. ( Jonathan D. Hacker , of the District of Columbia bar, admitted pro hac vice, of counsel), O'Melveny & Myers LLP, Los Angeles, California ( Daniel M. Petrocelli , of the California bar, admitted pro hac vice, and Cassandra L. Seto , of the California bar, admitted pro hac vice, of counsel), and O'Melveny & Myers LLP, New York City ( Anton Metlitsky of counsel), for appellant.
Mitchell L. Stoltz , Electronic Frontier Foundation, San Francisco, California, for Electronic Frontier Foundation, amicus curiae.
Jenner & Block LLP, Washington, D.C. ( Kenneth L. Doroshow and Devi M. Rao of counsel), and George M. Borkowski , Recording Industry Association of America, Inc., Washington, D.C., for Recording Industry Association of America, Inc., amicus curiae.
Paul Hastings LLP, Washington, D.C. ( Stephen B. Kinnaird of counsel), and Rick Kaplan and Suzanne Head , National Association of Broadcasters, Washington, D.C., for National Association of Broadcasters, amicus curiae.
Hartman & Winnicki, P.C., Ridgewood, New Jersey ( Daniel L. Schmutter of counsel), for Howard B. Abrams and others, amici curiae.
King & Spalding LLP, San Francisco, California ( Joseph R. Wetzel and Ethan P. Davis of counsel), for Association for Recorded Sound Collections, amicus curiae.
Raza Panjwani , Public Knowledge, Washington, D.C., for Public Knowledge, amicus curiae.
Judges PIGOTT, FAHEY and GARCIA concur, Judge FAHEY in a separate concurring opinion; Judge RIVERA dissents in an opinion in which Judge ABDUS-SALAAM concurs; Chief Judge DIFIORE taking no part.
OPINION OF THE COURT
STEIN, J.
The Second Circuit Court of Appeals has certified the following question to this Court: "Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?" Because New York common-law copyright does not recognize a right of public...
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