Document Type

Response or Comment

Publication Date



Brief submitted to the Supreme Court of the State of California.

Case No. S240649 FLO & EDDIE, INC., Plaintiff-Respondent, v. PANDORA MEDIA, INC., Defendant-Petitioner.

Plaintiff Flo & Eddie, Inc., contends that the phrase “exclusive ownership” in California Civil Code section 980 includes all possible uses to which a copyrightable work may be put, including an exclusive right of public performance. At the time California Civil Code section 980 was first enacted in 1872, however, the phrase “exclusive ownership” in relation to a copyrightable work meant something different and much narrower: namely, the right of first publication (reproduction and sale) only. Since the phrase “exclusive ownership” was retained without change in the subsequent 1947 and 1982 amendments to Civil Code section 980, the phrase should be interpreted today in accordance with its original, common-law meaning. Moreover, for the past 75 years it has been considered settled law that there were no public performance rights in sound recordings under state law. If this Court were to interpret California Civil Code section 980 to grant such rights, for the first time, such a ruling would apply not only to Internet broadcasters, but also to every radio and television network and broadcast station whose signal reaches viewers and listeners located in California. Because broadcast signals cannot be confined to the borders of a single state, such a ruling would improperly burden communication to out-of-state listeners as well, in violation of the dormant commerce clause.



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