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.

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