Today, Public Knowledge filed an amicus brief in Flo & Eddie, Inc. v. Pandora. Public Knowledge urges the 9th Circuit Court of Appeals to reverse a lower court decision that claimed that the online music service violated a band's public performance rights by streaming their pre-1972 sound recordings.
The following can be attributed to Sherwin Siy, Vice President of Legal Affairs for Public Knowledge:
“The district court made two errors in its decision. The first was in applying a law that doesn't actually exist; the second is using a rationale to justify that law that threatens the existence of critical safeguards on copyright law like fair use and the first sale doctrine.
“This is why we're asking the 9th Circuit to reverse the district court's decision. The law doesn't create a right for the creators of pre-1972 sound recordings to keep their records from being played. They do have the right, under state law, to keep them from being copied. And although it may seem fair for them to get the same public performance rights that exist in federal law, that isn't something that the district court can invent for them, based on the laws that we have.
“In trying to conjure up a sound recording right in the state law, the district court made things worse by suggesting that the state law gives pre-1972 recording artists state copyrights that aren't subject to fair use or other limits to copyright law. Our brief details just how absurd this interpretation is, and thus why it must be incorrect.”
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