Florida appellate court to hear Turtles' appeal

The Florida Supreme Court will hear arguments beginning on April 6th in the copyright-infringement lawsuit filed by founding members of the 1960s rock group the Turtles against SiriusXM satellite radio.

Flo & Eddie Inc., the California-based company whose principals are Turtles vocalists Mark Volman and Howard Kaylan, filed the lawsuit in 2013 alleging copyright infringement involving music made prior to 1972. Flo & Eddie have won suits against SiriusXM in California and New York (the later subsequently over turned) but a federal district court judge in Florida sided in 2015 with the satellite broadcaster, finding nothing in Florida statutes or common law dealt with copyrights of recordings made before 1972 (and the federal Copyright Act).

Judge Darrin Gayle said that "Florida is different"  (from New York and California) saying "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts." Declining to fill the void in the state's legislation the Judge said "If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law" adding that it's the job of the Florida state legislature to address the issue, and that a decision to plug the gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right.

The case went to the 11th U.S. Circuit Court of Appeals, which asked the Florida Supreme Court to take up the issues involving state law. 

In December 2016, a majority in New York's highest court ruled that Sirius XM did not have to get permission, or pay compensation, to the owners of pre-1972 music recordings in order to play their tracks in the case brought by the owners of The Turtle's 1967 hit "Happy Together."  The Court of Appeals determined that New York common law does not recognise a "public performance right" in their decision in Flo & Eddie v. Sirius XM Radio. The Court of Appeals' ruling comes in response to a certified question from the U.S. Court of Appeals for the Second Circuit, which inquired in April whether New York's common law provides copyright protections for recordings not covered by federal law. Southern District Judge Colleen McMahon had denied Sirius' motion for summary judgment in 2014, finding that New York common law did provide a public-right performance 

That ruling came ust weeks after a settlement between the Turtles members and SiriusXM in a related lawsuit in California. U.S. District Judge Phillip Gutierrez ruled against SiriusXM in 2014, holding that California state law, as it is written, gives the master recording owner exclusive performance rights.

http://www.newsherald.com/news/20170201/supreme-court-to-hear-turtles-copyright-case

http://the1709blog.blogspot.co.uk/2016/12/sirius-xm-triumph-in-new-york-appellate.html

http://the1709blog.blogspot.co.uk/2015/06/siriusxm-prevail-in-pre-1972-claim-in.html

SiriusXM prevail in pre-1972 claim in Florida

SiriusXM has won a rare victory over its use of pre-1972 recorded music in the satellite radio broadcasters' ongoing battle with Flo & Eddie, founders of The Turtles. The musicians filed separate lawsuits in California, Florida and New York in 2013, aiming to use state laws to stop SiriusXM using their sound recordings such as "Happy Together" without paying royalties.  

California and New York judges have both favored the argument that state laws protect the public performance of pre-1972 sound recordings in the absence of federal legislation. The Florida judge was last to rule, but has gone the other way: U.S. District Judge Darrin Gayles decided to rule in favor of SiriusXM's summary judgment motion. The judge said he understands why his judicial colleagues in other states ruled differently noting that California and New York are vreative centres of culture, and laws have been enacted there to protect artistic rights, and there have been prior cases that have touched upon the present controversy. But Judge Gayle said that "Florida is different"  saying "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts." Declining to fill the void in the state's legislatnion the Judge said "If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law"  adding that it's the job of the Florida state legislature to address the issue, and that a decison to plug te gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right. Judge Gayles also declined to find SiriusXM liable under Florida common law copyright for reproductions of sound recordings in back-up and buffer copies. 

As it currently stands, the 2nd Circuit will be reviewing the New York judge's decision with the California case awaiting a result, too.

More here http://the1709blog.blogspot.co.uk/2014/09/1972-and-all-that-but-does-turtles-win.html and here http://the1709blog.blogspot.co.uk/2013/08/turtles-probe-murky-soup-of-pre-1972-us.html and here 
Flo & Eddie, Inc., v Sirius XM Radio Inc., et al    UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 13-23182-CIV-GAYLES/TURNOFF
http://www.scribd.com/doc/269387788/Floeddie-Florida

Jewel cases! Get your empty jewel cases here!

Over one thousand burned DVDs, a small shop in Orlando, Florida, and the county Economic Crimes Unit, a combination that has “uh-oh” written all over it.

The shop owner tried to claim that what he was doing was legal because he wasn’t selling the DVDs.  He was giving the DVDs away for free, for promotional use only, with the purchase of a $5 empty jewel case.

The newspaper reporting the results of the search warrant execution states that Mr. DVD-seller is facing felony charges under state law. However, the Florida statute that appears to be most applicable, 540.11, doesn’t seem to quite address the facts at issue here. The first two subsections making it unlawful to copy and sell DVDs only applies to sound recordings fixed prior to February 15th, 1972.  The next two provisions make it illegal to copy “performances.” There’s no definition of “performance” in the statute, so it’s unclear whether movies would fall under this provision.

If movies do count as performances, then Mr. DVD-seller is in trouble. Section (2)(a)3. makes it illegal to copy articles embodying performances with the intent to use those articles to cause the sale of other articles. Hmm… now why would someone pay $5 for an empty jewel case when a pack of 10 retails for nearly half that price on amazon.com?

A Florida case involving infringing CDs, rather than DVDs, suggests section (3)(a)1. might be applicable here.  In that case, it was clear that the CDs themselves were for sale.  If the court doesn’t allow the “I’m only selling the jewel cases” line to fly, then this provision could possibly be applicable.  The real tricky thing here is that half of the provisions talk about sound recordings and half talk about performances. Neither term is defined and neither obviously covers movies.

But don’t worry.  Even if Mr. DVD-seller manages to slip through the cracks of Florida’s state laws, he’s still in deep trouble under Section 506 of the US Copyright Act.

The Orlando police were alerted about Mr. DVD-seller by the MPAA.  Maybe he shouldn’t have set up his shop in a town owned by Disney.

Photo credit:Jewel case in the snow cc-by-nc eleda 1.