Pandora Warns Of 'Zombie Copyrights' In Appellate Brief For Turtles Case

Appeal

PANDORA MEDIA's opening brief in its appeal to the Ninth Circuit Court of Appeals of its CALIFORNIA District Court loss to THE TURTLES/FLO AND EDDIE over pre-1972 copyrights tells the Ninth Circuit Court of Appeals that the lower court was mistaken when it said that a 1982 "house-keeping amendment" (also termed "a clean-up bill") to the state copyright statute not only overrode the previous standard, which said that sound recordings lost copyright protection when published, but "actually resurrected state copyright protection for all sound recordings made before 1972 that had already been published -- creating hundreds of millions, if not billions, of dollars in potential new royalties."

PANDORA asserts that "(N)either the text nor the history of the 1982 amendment supports the conclusion that the CALIFORNIA legislature intended to resurrect protection for pre-1972 sound recordings, like those at issue here, that already had been published and thus had lost their state copyright protection ... holding that the 1982 amendment resurrected previously lapsed copyrights would not only create an unworkable intellectual property regime (e.g., Who, precisely, would own these zombie copyrights -- the artists, the record label, both, or as alleged here, neither?), but would also raise serious constitutional concerns by disrupting Fifth Amendment-protected reliance interests."

"(N)early a century’s worth of real-world history, legislative wrangling, and rancorous public policy debate were all premised on the universal understanding that the legal right asserted in this lawsuit -- a duty for radio stations to pay royalties not just for musical compositions but also for sound recordings -- does not exist," contends PANDORA. "Neither the 1982 amendment nor the common law doctrines of misappropriation, unfair competition, and conversion, on which the district court also relied, change that."

THE TURTLES -- MARK VOLMAN and HOWARD KAYLAN -- are seeking at least $25 million in damages for the class of artists for PANDORA's playing of pre-1972 music. PANDORA is also asserting a SLAPP defense, claiming the original suit was "meritless" and aimed at PANDORA's exercise of First Amendment rights, an argument denied by District Court Judge PHILIP GUTIERREZ.

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