Again to the Future
When Decide Naomi Reice Buchwald dominated that SoundExchange lacks the authority to sue Sirius XM for underpaid royalties, she didn’t simply hand Sirius a procedural win—she redrew the authorized boundaries of who can implement America’s obligatory licenses beneath 17 USC §114 (also known as “SoundExchange royalties”). On the coronary heart of her determination was a structural inference: as a result of some twenty years later Congress explicitly gave the Mechanical Licensing Collective (MLC) litigation authority beneath § 115 of the Copyright Act, its silence about SoundExchange in § 114 from twenty years earlier should imply SoundExchange lacks that very same energy right now. Heat up the DeLorean.
It’s a basic use of the expressio unius est exclusio alterius canon: the expression of 1 factor (MLC enforcement) implies the exclusion of one other (SoundExchange enforcement). Decide Buchwald didn’t cite the canon by title, but it surely was doing a lot of the heavy lifting.
However was that the fitting inference?
I imagine the reply isn’t any—and that, in truth, the reverse inference could also be extra in step with each statutory design and legislative historical past.
SoundExchange Was the Blueprint, Not the Exception
Through the lengthy legislative course of that produced the Music Modernization Act (MMA) in 2018, SoundExchange was explicitly held up because the mannequin for the brand new MLC. Congressional staffers, Copyright Workplace officers, and business witnesses repeatedly described the MLC as a “SoundExchange for mechanicals.” The Joint Report of the Home and Senate Judiciary Committees on the MMA emphasised:
SoundExchange has gained widespread business assist with its efforts to effectively distribute webcasting royalties to copyright house owners and artists that proactively establish themselves as due such royalties or, within the absence of such identification, may be recognized by way of the efforts of SoundExchange. It’s hoped that the tradition of transparency that SoundExchange has delivered to the music business will probably be duplicated elsewhere, together with within the new mechanical licensing collective established by the primary title of this laws.
That quote doesn’t recommend limitation. It suggests admiration. And replication.
When Congress included litigation authority in § 115(d)(7)(C) for the MLC, it wasn’t drawing a distinction with SoundExchange—it was extending SoundExchange’s powers to the brand new collective. The MLC wanted express authorization as a result of it was model new, whereas SoundExchange had already been administering § 114 for years, together with imposing it by way of litigation.
Codification ≠ Exclusion
That is the place Decide Buchwald’s logic will get a bit shakey in my opinion. Her opinion primarily says:
“Congress didn’t give SoundExchange litigation authority, and it gave that authority to the MLC, so SoundExchange should not have it.”
But when Congress modeled the MLC on SoundExchange—which I heard so many instances through the run as much as the MMA—then it’s much more doubtless that Congress meant for the MLC to inherit these powers, to not cabin SoundExchange’s personal.
This makes Decide Buchwald’s reliance on expressio unius unsteady. Below the canon of constant utilization, equally structured statutes (like § 114 and § 115) ought to be learn in concord, not as foils. And beneath the presumption towards implied repeal or restriction, courts shouldn’t calmly infer that Congress silently revoked longstanding powers.
Certainly, SoundExchange had been exercising enforcement authority with out controversy for almost twenty years. If Congress had meant to vary that, it might have mentioned so—particularly through the MMA debates, the place it mentioned SoundExchange extensively and by no means hinted that its enforcement function was improper or illegal.
A Slim Studying With Costly, Pressing—and Localized—Penalties
Framing the choice as a matter of judicial restraint, Decide Buchwald insists Congress didn’t explicitly authorize SoundExchange to litigate beneath the obligatory license that Congress pressured all featured and nonfeatured artists and sound recording copyright house owners to simply accept. However by treating silence as prohibition, her ruling now invitations a wave of sophistication motion lawsuits by particular person artists and rights holders—creating fragmented enforcement the place a centralized one already existed.
So take into consideration that–Congress pressured us to take the license, created SoundExchange to manage it, however left us to sue individually as a way to implement it? Halcyon days for platforms, unhealthy information for bass gamers in Duluth.
Much more critically, the ruling has triggered a race to the courthouse at the very least within the Southern District of New York. As a result of SoundExchange can now not function a collective enforcement proxy—at the very least within the Southern District of New York—particular person artists and Sound Recording Copyright House owners (SRCOs) should now file swimsuit immediately or maybe threat shedding their claims as a consequence of statute of limitations. The ruling successfully compresses time for a whole lot (if not hundreds) of rightsholders who may in any other case have relied on SoundExchange to behave on their behalf because it had been doing efficiently and with out objection from the stakeholders it represents. This not solely burdens the courtroom system with duplicative litigation—it additionally will increase the chance that meritorious claims could also be forfeited solely.
And but, with a bit of luck all of this disarray could also be geographically confined. Decide Buchwald’s opinion is a district courtroom ruling, binding solely throughout the Southern District of New York. It carries no precedential weight in different districts, and courts elsewhere are free to interpret the statutory silence in a different way. Which means SoundExchange’s authority to litigate should be intact outdoors of SDNY, and this case might immediate strategic discussion board shifts.
If SoundExchange and the rights holders it serves need to protect enforcement energy, they could look to quicker, extra favorable venues—such because the Japanese District of Texas, residence to the famously environment friendly “rocket docket” in Marshall. That courtroom has grow to be a go-to venue for IP enforcement, and its judges have deep expertise with collective rights litigation. Future fits—particularly class actions—could very nicely be filed there quite than in New York.
What’s to Be Achieved:
Congress didn’t give the MLC litigation authority as a result of SoundExchange by no means had it. It gave the MLC that authority as a result of SoundExchange did have it and it was working for the stakeholders—Congress wished the MLC to comply with that instance. Decide Buchwald’s ruling upends that design, and its procedural posture ensures it should generate jurisdictional chaos, litigation inefficiency, and a flurry of venue-hopping as rights holders scramble to protect claims.
It is a silence that by no means meant “no.” It meant “stick with it”—maybe in Texas. And Texas needs you anyway.
