Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 709 F. App'x 661

Flo & Eddie sued Sirius XM claiming Florida common law protects pre-1972 sound recordings, including exclusive rights of public performance and reproduction.
The Eleventh Circuit previously certified four questions to the Florida Supreme Court about recognition of common-law copyright in pre-1972 sound recordings, publication effects, infringement by buffer/back-up copies, and related state-law claims.
The Florida Supreme Court consolidated and reframed the key question to whether Florida common law recognizes an exclusive right of public performance in pre-1972 sound recordings.
The Florida Supreme Court held that Florida common law does not recognize an exclusive public-performance right in such recordings and that creating one would be a legislative task.
The court also held that, even if a reproduction right existed, Sirius’s internal back-up/buffer copies did not infringe.
Because Flo & Eddie’s state-law unfair competition, conversion, and civil-theft claims depended on the alleged common-law copyright, those claims failed as well; the district court’s summary judgment for Sirius was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Florida common law recognize an exclusive public-performance right in pre-1972 sound recordings?	Florida common law recognizes such an exclusive right.	Florida common law does not recognize that exclusive right; recognition would be legislative.	No—Florida common law does not recognize an exclusive public-performance right.
Does sale/public distribution of phonorecords constitute "publication" divesting any common-law rights?	Sale/public distribution does not necessarily terminate common-law protections.	Even if a right existed, sale/public distribution during the statutory period would have divested it.	Court noted that, if the right existed, sale under the then-applicable statute would have divested it.
Do Sirius’s back-up/buffer copies infringe a common-law reproduction right?	Yes—making copies for streaming/back-up infringes reproduction right.	Internal back-up/buffer copies for system operation do not infringe.	No—internal back-up/buffer copies did not infringe even assuming a reproduction right exists.
Do state-law claims (unfair competition/misappropriation, conversion, civil theft) survive absent a common-law copyright?	These claims are independent remedies for misuse/misappropriation.	These claims are premised on the alleged common-law copyright and fail if that copyright fails.	No—these claims fail because they are based on the rejected common-law copyright.

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 827 F.3d 1016 (11th Cir. 2016) (Eleventh Circuit certified questions to the Florida Supreme Court on common-law protection for pre-1972 sound recordings)