People
Kenneth Steinthal, known for litigating matters in the intellectual property/media sector, is a widely recognized leader in his field, including by National Law Journal as a 2016 IP Trailblazer, by Law360 as 1 of 5 Media & Entertainment MVPs in 2015, by Legal 500 as 1 of only 8 members of its U.S. Copyright Hall of Fame, and on a consistent annual basis (including in 2022) by multiple legal publications including each of Legal 500, Chambers USA, Managing IP (as an IP Star) and the Daily Journal’s listing of Top Intellectual Property Lawyers.
Ken has four decades of experience litigating matters spanning the IP/media sector, in jury and bench trial settings and before copyright tribunals in the U.S. and internationally. Ken’s practice is focused on copyright, DMCA and antitrust/rate-setting cases involving the distribution of audio and audiovisual content. His litigation matters typically involve the defense of copyright infringement claims, the application of DMCA safe harbors and the establishment of structures and rates for the exploitation of copyrighted works in both traditional (e.g., cable, satellite, broadcast) and new media distribution environments. In just the last few years, Ken has led teams on behalf of Google, Peloton, the Radio Music License Committee (representing the interests of the U.S. broadcast radio industry), NPR/PBS, Amazon, The Orchard, ESPN and Pandora before different courts and tribunals (including the U.S. Copyright Royalty Board) in defense of copyright infringement claims and establishing rate structures governing his clients' exploitation of music licensed by publishers and labels (and their representative organizations).
In a constantly evolving media distribution environment, Ken and his team also regularly counsel clients regarding the licensing implications and risks associated with their existing or contemplated product offerings spanning both traditional and new media. He also assumed an industry-leading role on behalf of the content distribution community (including Netflix, Paramount Global/ViacomCBS, ESPN, Warner Media/HBO, Discovery Communications, AMC Networks, Fox Cable Network Services, iHeartMedia, Google/YouTube, and many others) in connection with the Department of Justice’s periodic investigations of the ASCAP and BMI antitrust consent decrees governing the licensing of public performance rights in musical compositions.
J.D., Fordham University, cum laude
B.A., Williams College, cum laude
California
New York
Supreme Court of the United States
U.S. Court of Appeals for the D.C. Circuit
U.S. Court of Appeals for the Ninth Circuit
U.S. Court of Appeals for the Second Circuit
U.S. District Court for the Central District of California
U.S. District Court for the Eastern District of New York
U.S. District Court for the Northern District of California
U.S. District Court for the Southern District of New York
November 4, 2022
Kenneth Steinthal and Susan Vargas are named Finalists at the California Legal Awards
November 2, 2022
National Law Journal Names Kenneth Steinthal a 2022 Entertainment Trailblazer
October 27, 2022
The Recorder profiles Kenneth Steinthal and his impact as one of the major players in online music litigation
Representative Copyright Litigations/Matters
In re Determination of Rates and Terms for Digital Performance of Sound Recordings … (known as the Web V proceedings). Ken leads the representation of Google in these Copyright Royalty Board proceedings against the labels/recording industry to determine statutory royalty rates for digital performances of sound recordings made by non-interactive music streaming services under sections 112 and 114 of the Copyright Act (for the statutory license term 1/1/21-12/31/25). A five-week virtual Zoom trial was held in August - September 2020 (which was one of the first virtual trials of that magnitude conducted during the global pandemic), and ultimately led to a 300-page decision issued in June 2021 largely rejecting the labels’ positions and adopting much of Google’s arguments to minimize any rate increases. The labels have appealed the decision, which appeal is ongoing.
In re Determination of Rates and Terms for Making and Distributing Phonorecords. Ken leads the representation of Google in the Phonorecords III Copyright Royalty Board proceedings against the music publishing industry that will determine the statutory license rates and terms for the five-year period 2018–2022; the case involves "mechanical" reproduction licenses associated with the distribution of interactive/on-demand streaming services and cloud locker services under section 115 of the Copyright Act. The case is currently on remand to the CRB after the D.C. Circuit’s rejection of the publishers’ core appeal positions while granting the services’ request to vacate and remand for further proceedings certain aspects of the rate structure adopted by the CRB in its Initial Determination after trial. Johnson v. Copyright Royalty Board, 969 F.3d 363 (D.C. Cir. 2020). This follows the CRB’s initial trial determination agreeing with Google (and other services) in rejecting the core position of the publishers who sought to establish a per-play royalty rate.
Defense of Amazon Copyright Infringement Actions. Ken led Amazon’s defense in a series of five copyright infringement suits brought in the Southern District of New York and Western District of Washington claiming that Amazon sold digital downloads of tracks through its online music store that contained musical compositions that had not been properly licensed. In particular, the suits sought damages for infringement on behalf of songwriters whose works were recorded by jazz and popular artists such as Louis Armstrong and Frank Sinatra. The cases challenged various historical music clearance practices employed by digital music distributors and could have had impact well beyond the immediate parties to the lawsuit. Ken’s team was successful in securing multiple decisions rendered in 2020 and in January 2021 dismissing claims asserted by plaintiffs in four of these cases based on asserted causes of action for “making available” plaintiffs’ copyrighted works; the lawsuits were settled on favorable terms soon thereafter.
See more
May 4, 2020
COVID-19 Impacts on Businesses and Their Intellectual Property Rights
November 4, 2022
Kenneth Steinthal and Susan Vargas are named Finalists at the California Legal Awards
November 2, 2022
National Law Journal Names Kenneth Steinthal a 2022 Entertainment Trailblazer
October 27, 2022
The Recorder profiles Kenneth Steinthal and his impact as one of the major players in online music litigation
Representative Copyright Litigations/Matters
In re Determination of Rates and Terms for Digital Performance of Sound Recordings … (known as the Web V proceedings). Ken leads the representation of Google in these Copyright Royalty Board proceedings against the labels/recording industry to determine statutory royalty rates for digital performances of sound recordings made by non-interactive music streaming services under sections 112 and 114 of the Copyright Act (for the statutory license term 1/1/21-12/31/25). A five-week virtual Zoom trial was held in August - September 2020 (which was one of the first virtual trials of that magnitude conducted during the global pandemic), and ultimately led to a 300-page decision issued in June 2021 largely rejecting the labels’ positions and adopting much of Google’s arguments to minimize any rate increases. The labels have appealed the decision, which appeal is ongoing.
In re Determination of Rates and Terms for Making and Distributing Phonorecords. Ken leads the representation of Google in the Phonorecords III Copyright Royalty Board proceedings against the music publishing industry that will determine the statutory license rates and terms for the five-year period 2018–2022; the case involves "mechanical" reproduction licenses associated with the distribution of interactive/on-demand streaming services and cloud locker services under section 115 of the Copyright Act. The case is currently on remand to the CRB after the D.C. Circuit’s rejection of the publishers’ core appeal positions while granting the services’ request to vacate and remand for further proceedings certain aspects of the rate structure adopted by the CRB in its Initial Determination after trial. Johnson v. Copyright Royalty Board, 969 F.3d 363 (D.C. Cir. 2020). This follows the CRB’s initial trial determination agreeing with Google (and other services) in rejecting the core position of the publishers who sought to establish a per-play royalty rate.
Defense of Amazon Copyright Infringement Actions. Ken led Amazon’s defense in a series of five copyright infringement suits brought in the Southern District of New York and Western District of Washington claiming that Amazon sold digital downloads of tracks through its online music store that contained musical compositions that had not been properly licensed. In particular, the suits sought damages for infringement on behalf of songwriters whose works were recorded by jazz and popular artists such as Louis Armstrong and Frank Sinatra. The cases challenged various historical music clearance practices employed by digital music distributors and could have had impact well beyond the immediate parties to the lawsuit. Ken’s team was successful in securing multiple decisions rendered in 2020 and in January 2021 dismissing claims asserted by plaintiffs in four of these cases based on asserted causes of action for “making available” plaintiffs’ copyrighted works; the lawsuits were settled on favorable terms soon thereafter.
See more
May 4, 2020
COVID-19 Impacts on Businesses and Their Intellectual Property Rights
November 4, 2022
Kenneth Steinthal and Susan Vargas are named Finalists at the California Legal Awards
November 2, 2022
National Law Journal Names Kenneth Steinthal a 2022 Entertainment Trailblazer
October 27, 2022
The Recorder profiles Kenneth Steinthal and his impact as one of the major players in online music litigation
J.D., Fordham University, cum laude
B.A., Williams College, cum laude
California
New York
Supreme Court of the United States
U.S. Court of Appeals for the D.C. Circuit
U.S. Court of Appeals for the Ninth Circuit
U.S. Court of Appeals for the Second Circuit
U.S. District Court for the Central District of California
U.S. District Court for the Eastern District of New York
U.S. District Court for the Northern District of California
U.S. District Court for the Southern District of New York