From Inside Radio: Did SiriusXM Radio pull a fast one on the major record labels by sneaking language into its settlement agreement with indie labels over pre-1972 sound recordings? That’s the question posed in a Hollywood Reporter story about the potential implications of the complicated, still evolving litigation over sound recordings made before Feb. 15, 1972, which aren’t covered by federal copyright protections. To remind about the specific language in the satellite broadcaster’s proposed settlement with Flo & Eddie: “The Parties agree that [the royalty rate] represents the rate that has been established by negotiations between a willing buyer and willing seller in a competitive market for Pre-1972 Sound Recordings, and shall be precedential in all future and/or pending proceedings (including rate making proceedings and arbitration) relating to sound recordings.” The worry expressed by the major labels and other stakeholders is that SiriusXM will use the 5.5% of revenue rate established in the settlement as evidence of what a willing buyer and willing seller would agree upon in the Copyright Royalty Board’s upcoming rate setting proceeding for streaming royalty rates for the period from 2018-22. SiriusXM currently pays the statutory license rate of 11%—double that of the settlement. In early March, prior to a hearing to decide whether the settlement gets a judge’s final green-light, the RIAA, SAG-AFTRA, AFM, SoundExchange and others submitted an amicus brief to express their concerns. “It is clear from the settlement’s face, as well as obvious marketplace facts, that the proposed royalty rate is well below the market rate for sound recordings, particularly classic sound recordings that are among the world’s most valuable,” the brief states, as reported by the Hollywood Reporter. “Far from having anything to do with the settlement’s economic terms, this language just gives SiriusXM fodder for future rate-setting proceedings—at the expense of copyright owners and recording artists.” SiriusXM responded to the filing by telling the judge that not one class member to the settlement filed an objection. “The reality is that class members want to share in the guaranteed multi-million dollar payout for past performances, and look forward to potential future royalties,” the satcaster said in its response. Besides, the major labels aren’t class members “and have no legitimate interest in this matter.” Their worries about creating an improper statuary license aren’t “legitimate, relevant or helpful” in assisting the judge in determining whether the proposed settlement is fair to class members, the SiriusXM response added. The dust-up stems from a November settlement under which SiriusXM agreed to fork over between $25 million and $99 million to settle a California federal lawsuit over music royalties for pre-1972 recordings. The satellite broadcaster and Flo & Eddie, leaders of ‘60s rock band the Turtles, reached a settlement just before the closely watched class action case was set for trial. SiriusXM also agreed to a 10-year license for recordings by parties in the class action suit at a 5.5% royalty rate. That could add up to an additional $45 million-$59 million, depending on how the satellite broadcaster’s revenue grows over the next ten years.