Must Read: @zvirosen Critiques Florida Flo & Eddie Ruling: Another Season, Another Common-Law Copyright Opinion

This one from the Supreme Court of Florida, finding that Florida common law does does not recognize an exclusive right of public performers for the holders of common-law copyrights in sound recordings made before February 15, 1972.  The 11th Circuit certified a series of questions to the Florida Supreme Court…Instead of addressing these questions, the Court chose to address a reformulated question of its own, “Does Florida common law recognize the exclusive right of public performance in pre-1972 sound recordings?”

The obvious problem with this is that it fails to address whether pre-72 sound recordings are protected under Florida law more generally.  The Court notes (pp. 19-20) that Florida criminal law provides penalties against commercial bootleggers of sound recordings, but those criminal provisions do not impact a range of activity including noncommercial infringement.

This could be excused as judicial minimalism if it wasn’t central to the case – Flo & Eddie sued in Florida specifically because SiriusXM has servers there, and alleged that copying was ongoing on those servers in violation of their exclusive right of reproduction.

Read the post on Mostly IP History

@ashleycullins: RIAA Exec Steve Marks: 2017 Will be a “Critical Year” for Music Law (Q&A)

The music industry’s battle against stream-ripping, changes to consent decrees and a potential Supreme Court case involving DMCA exemptions are all on the docket. So The Hollywood Reporter asked Steve Marks, general counsel for the Recording Industry Association of America, what’s at stake in the year ahead and which cases he’ll be watching most closely.

What do you feel were the biggest developments in music law in 2016?  

The past year included a number of decisions where courts wrestled with whether certain online services using music must obtain a license. The online services invoked the DMCA as a liability shield for the widespread use of music on their platform, and the decisions demonstrate that the DMCA continues to litter the marketplace with outcomes that place competitors in different positions. In October, the Second Circuit emphasized in EMI v. MP3Tunes that a service cannot adopt policies to “willfully blind” itself of infringement by users of the service and recognized that the Defendants could have knowledge based on “red flags” given the facts in the record.

Read the post on The Hollywood Reporter