Yesterday, EFF filed a friend-of-the-court brief in the Court of Appeals for the Ninth Circuit, pushing back against a district court decision that expanded state law copyrights in pre-1972 sound recordings. This may sound familiar: we recently filed a similar brief in the Second Circuit. In both cases, a company called Flo & Eddie has convinced district courts that state copyright law restricts public performances of pre-1972 sound recordings, even though such a restriction has never before been recognized. As we explained in our previous post, these cases arise out of a quirk of copyright that leaves pre-1972 sound recordings out of the reach of federal law, allowing the states to set copyright rules.

Flo & Eddie is made up of two members of the band the Turtles. Their arguments regarding state law copyright are extremely dangerous. For example, Flo & Eddie recently argued to the Eleventh Circuit that sound recordings are entitled to state law copyright that gives Flo & Eddie ownership rights to stop “all unauthorized uses of those performances.”

Flo & Eddie’s argument, if accepted, would seemingly allow Flo & Eddie to prevent any use of a sound recording that it didn’t like—not just public performances—regardless of the First Amendment or fair use principles. Law professors and other public interest groups also pointed out other consequences in other friend-of-the-court briefs submitted to the Ninth Circuit.

This is just one case in a larger effort by Flo & Eddie and others in the recorded music business to push through the courts what the legislatures have never given them. Whether (or how) we should recognize public performance rights in sound recordings are questions that are best left to Congress to answer, not the courts.

All of the briefs filed in the Ninth Circuit appeal thus far can be found here:

Defendant-Appellant's Brief:

• Pandora

Amicus Briefs:

• EFF
• Law Professors – Group 1
• Law Professors – Group 2
• National Association of Broadcasters
• Sirius XM
• Public Knowledge
• Association of Recorded Sound Collections
• Computer & Communications Industry Association (CCIA)
• Yale Law School Information Society Project