Flo and Eddie Lose Florida Lawsuit against SiriusXM

Flo and Eddies’ winning streak against Sirius XM ended on June 22, 2015 when Florida District Court Judge Darrin P. Gayles ruled that “Florida common law does not provide Flo & Eddie with an exclusive right in public performance” and granted Sirius XM’s Motion for Summary Judgment. 1

Faithful readers of this blog will remember that Flo and Eddie had prevailed against Sirius XM both in California 2 and in New York. 3 The RIAA also won a similar suit against Sirius XM in California. 4 So how did the Judge in Florida rule contrary to three other Courts on what basically is the same set of facts? The problem lies with the vagaries of what the courts call “the common law.”

The common law is derived from the decisions of courts over a period of time, and is not written down in easy to find sections like statutes are. The problem for Flo and Eddie was that no Florida Court had ever squarely addressed the issue. There is no Federal common law. I noted previously that this problem would be a serious burden for Flo and Eddie to overcome. As I stated in my prior blog post:

“Flo & Eddie, as Plaintiffs, bear the burden of proof to show that Florida common law copyright extends to such performances. There is no such proof, but only because it does not appear that any Florida Court has ever considered the question.”

That lack of consideration proved fatal to Flo and Eddies’ case. While at least one Federal Court had ruled that Florida did recognize common law copyrights in sound recordings, 5 there was never any decision on whether common law copyright in a sound recording extended to the public performance of that sound recording. The Judge here, noted that California had a specific statute in place, and that New York had several court decisions discussing the issue. The Judge in Florida, however, found that neither of these factors was present in Florida, and declined to be the first to say so, stating that “whether copyright protection for pre-1972 sound recordings should include the exclusive right of public performance is for the Florida legislature.” 6

If there was any error in the court’s decision, it would be the finding that “Florida common law does not provide Flo & Eddie with an exclusive right in public performance.” 7 The problem with this ruling is that if the theory advanced by Flo and Eddie lacked proof to support it, the opposite is not necessarily true. In other words, if there is no evidence that any Florida court has ever considered the issue, then there is no evidence to support a finding that there is, or is not, a public performance right in pre-1972 sound recordings. The result is the same, Flo and Eddie lose. But, the reason they lose is that Flo and Eddie, as plaintiffs have the burden of proof and they have failed to provide that proof.

Also, a little puzzling since the Judge had already decided the case and did not need to address the issue, he took the time to rule that any attempt by the Florida Legislature to provide performance rights for pre-1972 sound recordings would not violate the dormant commerce clause of the U.S. Constitution, an argument made unsuccessfully by Sirius XM in the other court proceedings as well as here.

An appeal of this ruling is inevitable, and in the past, the Eleventh Circuit Court of Appeals has sought the guidance of the Florida Supreme Court on what the laws of the State of Florida provide. This makes sense here, because a Federal Court can only have an opinion on what they think Florida laws mandate, while the Florida Supreme Court is the final arbiter on the question of what is the law of the State of Florida and what is not the law. This case is certainly one that could benefit from their input.

So what is the ultimate effect to Sirius XM? According to the Judge here, “[d]ue to Sirius’ licenses with the Federal Communications Commission and technological restraints on its satellite delivery systems, Sirius broadcasts identical programming to its subscribers in every state in the continental United States.” 8 If this is correct, then Sirius will have to win reversals in all of the three cases which they have lost, two in California and one in New York, in order to continue to play pre-1972 sound recordings. A negative outcome in any one of them would mean an effective ban on pre-1972 recordings across the United States since they have no ability to tailor the programming to an individual state.

Against odds like that, Sirius may wish to try to settle the cases before the damages pile up to a number that they cannot afford.


  1. Flo & Eddie, Inc. v. Sirius XM Radio, Inc. 2015 WL 3852692 District Court for the Southern District of Florida, 2015
  2. Flo and Eddie v. Sirius XM Radio: Have Two Hippies from the 60’s Just Changed the Course of Broadcast Music?
  3. Blog Update: Sirius XM Loses in New York, Fires Lawyers, Loses Again
  4. Streaming Hits a Dam: Taylor Swift Says “Not So Fast,” Sirius XM Loses Again and Flo and Eddie Sue Pandora
  5. CBS v. Garrod, 622 F.Supp 532 US District Court for the Middle District of Florida 1985
  6. Flo & Eddie, Inc. v. Sirius XM Radio, Inc. 2015 WL 3852692 (at page 5 of original opinion)
  7. Id.
  8. Id. at page 1

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