Kenneth L. Steinthal

For the last couple of years in particular, Steinthal’s practice has centered on the tensions between old copyright law and new technology. A top litigator, he is also an expert in the legal intersection of intellectual property, technology and traditional media.

For instance, he represents Alphabet Inc.-owned Google in two important proceedings at the federal Copyright Royalty Board to establish how much streaming services must pay songwriters and record labels to play their music over the internet.

Those proceedings, known as Phonorecords III and Web V, will determine much of the economics of digital music services like his client for the next five years, he said.

“Copyright law was written so long ago. The technology has changed so rapidly,” he said. “What is a reproduction, what is a mechanical right, what is a public performance right and how do these things get licensed?”

A more striking example of technology advancing faster than the law was the suit against his client Peloton Interactive Inc. The company started as a gym where instructors would play recordings to accompany workout classes. Licenses with ASCAP and BMI took care of all copyright concerts.

When the company saved the classes for users to replay at home, Peloton “really was ahead of its time.”

Steinthal said the company acted responsibly to negotiate licenses for performance rights from the performing rights organizations, for synchronization rights from record labels and for mechanical reproduction rights from most music publishers.

Except some publishers held out. They sued for $300 million. Steinthal’s team counterclaimed with antitrust allegations.

After extensive discovery and mediation, the case settled early last year. Downtown Music Publishing LLC v Peloton Interactive Inc., 19-CV02426 (S.D. NY, filed Mar 19, 2019).

Billboard Magazine called the litigation one of “the five legal cases that could change the music industry in 2020.”

Steinthal concurs. Peloton’s situation and response “actually creates new mechanisms for licensing.”

He said he is very fortunate to practice within this constantly evolving industry.

It is “fun to litigate in and even fun for my kids and grandkids to talk about,” Steinthal said. “The TiKToks of the world are what my grandchildren are using, and I’m spending time counseling.”

— Don DeBenedictis