Oldies in the New Digital Age: Evaluating Patches for the Pre-1972 Copyright Glitch

Abstract

In the late-2014 case Flo & Eddie, Inc. v. Sirius XM, Inc., a federal district court in California held in that a state statute granting pre-1972 sound recording copyright holders “exclusive ownership” granted “all rights that can attach to intellectual property, save [for a] singular, expressly-stated exception for making ‘covers’ of a recording.” Most controversially, the court held that this “exclusive ownership” under state law included a public performance right. Two months later, a federal district court in New York reached a similar result based on New York state common law. Commentators writing on the subject have largely decried the Flo & Eddie decisions as an exploitation of a glitch in the way that the copyright system currently works with respect to pre-1972 sound recordings. The author agrees with that general sentiment and believes that the recent Flo & Eddie decisions are fundamentally at odds with the copyright system’s overall balancing act of working to “promote the Progress of Science and useful Arts.” Instead of rehashing arguments to that effect that have been forcefully made elsewhere, this article assumes that there is indeed a problem (the “glitch”) in the copyright system and focuses on finding the best path forward to fix (“patch”) it.