Are you going to bark all day little doggie? Sony’s attempt to muzzle media has no legal basis.

Are you going to bark all day little doggie? Sony’s attempt to muzzle media has no legal basis.

Is David Boies going to bark all day by sending cease and desist letters to media on behalf of Sony, warning them not to use leaked Sony e-mails and other documents in their reporting, or is he going to bite by seeking an injunction?

The WSJ reported in Sony Tells Media Not To Use Leaked Documents that Mr. Boies sent a letter to media outlets barking: “If you do not comply with this request and the Stolen Information is used or disseminated by you in any manner,” then, “[Sony pictures] will have no choice but to hold you responsible for any damage or loss arising from such use or dissemination by you.”

The U.S. Supreme Court, in Bartnicki v. Vopper, 532 U.S. 514 (2001), held that the a radio station could not be liable for broadcasting a story using stolen information so long as the station did not partake in the theft. This is not to say that the hack wasn’t a horrible invasion and breach of an American company’s privacy and security, respectively. It is to say that a dangerous precedent would be set if media was muzzled by the law — or put in fear by frivolous lawsuits — under such circumstances.

In Reservoir Dogs, the noir movie directed by Quentin Tarantino, Mr. White, played by Harvey Keitel, says to Mr. Blonde, played by Michael Madsen: “You almost killed me! Asshole! If I knew what kind of a guy you were I never would’ve agreed to work with you!” Mr. Blonde’s response: “Are you gonna bark all day little doggie? Or are you gonna bite?” Mr. White doesn’t bite. Nor will Mr. Boies.

That’s because the law is not on Sony’s side.

Thank goodness for plain English.

Thank goodness for plain English.

Many love streaming their favorite artist’s songs over Pandora, Inc. (“Pandora”). Imagine a world where your favorite song, say “All Along the Watch Tower” by Bob Dylan, wasn’t listed on Pandora because┬áthe American Society of Composers, Authors, and Publishers (“ASCAP”) made his compositions unavailable to “New Media” outlets, even though his songs are available for license to traditional methods of distribution, like the radio. Keep calm. Thanks to a recent ruling by ┬áthe Southern District of New York, a federal court in New York, that won’t happen. And that’s primarily because of plain English.

In In Re Petition of Pandora, Media, Inc., ASCAP argued that it could not make all compositions available in its repertory to licensees like Pandora where the publisher of the song withdrew ASCAP’s right to license the compositions to “New Media.” In short, ASCAP argued to the Southern District of New York, that it cannot license what it does not have the right to license.

Since 1941, ASCAP has needed to comply with an antitrust consent decree. Luckily, it states in plain English that music users have the right to “perform any, some or all of the works in the ASCAP repertory.” If Mr. Dylan uses ASCAP to collect royalties for the public performances of “All Along the Watchtower,” that song is part of the ASCAP repertory. Under the decree, ASCAP must make the song available to all requesting music users, regardless of the type of medium they use to distribute the music.

The court correctly ruled that while Mr. Dylan may freely pull his song out of the ASCAP repertory and go to another performing rights society, ASCAP is restricted by the decree from offering Mr. Dylan the option of licensing his songs to some distributors but not to others in “New Media” — such as Pandora. But Pandora has only won half the battle with ASCAP. The decree still requires the court to determine the rate that Pandora will pay for using ASCAP’s stable of songs. If the court makes these rates cost prohibitively high, Pandora’s first half victory will be a moot one.