Kenneth L. Steinthal

Kenneth L. Steinthal frequently represents content providers like Google, YouTube and NPR in the protracted administrative procedures and litigation to determine who should pay how much to whom for music played, sold and, these days, streamed.

“It’s a fun area of the law,” Steinthal said. “The technology changes a lot faster than the copyright law does.”

“It’s been a very fascinating journey to be able to litigate and negotiate and counsel as the new technologies have been developed for the clients who are producing and distributing television, streaming video and of course radio and digital music services.”

The work also requires a deft hand because “the very people you are cross-examining one day, going to be trying to negotiate a license with the next day,” Steinthal said.

Proceedings to set new royalty rates often can take a long time to resolve. Currently, he is representing Google’s its music streaming offerings in proceedings with the Copyright Royalty Board to set the rates that noninteractive streaming services, like Pandora, must pay record companies. Through their rights management organization SoundExchange, the record companies sought a large increase, while broadcasters sought a large decrease for simulcasting over-the-air radio stations, Steinthal said. Streamers like his client wanted the rates to stay roughly the same at about a fifth of cent per record.

The copyright board agreed with his side. In February, the D.C. Circuit heard oral arguments — from four sides, including religious broadcasters. “We’re looking forward to the decision,” he said. “We enjoyed the argument and thought it went well.” National Association of Broadcasters v. CRB, 21-1245 (D.C. Circ, filed Nov. 26, 2021).

Another big, ongoing matter concerns the rates on-demand music streaming services must pay music publishers for streaming their songs — for the years 2018 through 2022.

Known as Phonorecords III, it is “the case that will never end,” Steinthal said. “We still don’t have a final decision as to what the right rates are for that time period.”

At least the rates for the current time period, 2023-27, have been settled. “Ironic. Crazy some people might say.”

In the ongoing Phonorecords III, Steinthal said the streaming services prevailed at the copyright board to block music publishers’ proposal for a per-play rate. The D.C. Circuit upheld that decision back in 2019.

Steinthal said he is not deeply involved in negotiations now to set a rate based on a percentage of revenue.

He is defending Comedy Central and its record label in a class action claiming the company diminished comedians’ royalties by signing a direct-licensing deal with Sirius XM rather than sticking with the standard compulsory license fee. “We have, I believe, very strong defenses,” Steinthal said. Kaplan v. Comedy Partners, 1:22-cv-09355 (S.D. N.Y., filed Nov. 1, 2022).

— Don DeBenedictis