LETTER FROM THE EDITOR THE JOHN MARSHALL Dear Readers, REVIEW OF INTELLECTUAL PROPERTY LAW The John Marshall Review of Intellectual Property Law (“RIPL”) is proud to present our first issue of volume fifteen. This issue features three articles from esteemed professors and practitioners on intellectual property law, and three comments from students. Our first article examines the long and storied past of sound recordings in the world of copyright. Through centuries of common law, our understanding and implementation of copyright protections have evolved. But in the relatively recent past, we have struggled to adapt this understanding to cope with the advancements of technology. Bruce D. Epperson takes us on an historical trek through the twists and turns of both common-law copyright and copyright by statute, while examining FROM THE STATUTE OF ANNE TO Z.Z. TOP: THE STRANGE WORLD OF AMERICAN SOUND the apparent inability of both to deal comfortably with the world of sound recordings. RECORDINGS, HOW IT CAME ABOUT, AND WHY IT WILL NEVER GO AWAY The second article deals with non-practicing entities, patent assertion entities, and BRUCE D. EPPERSON the recent attempts by the U.S. government to cage the patent troll. Each of the three branches of government has, in recent years, attempted to stem the tide of patent troll litigation. Prachi Agarwal provides an in-depth look at how patent trolls ABSTRACT work, how the three branches of government have tried to contain them, and what Uniquely among all industrialized nations, the United States extended no copyright protection to the government is trying to do going forward. sound recordings until 1972. The individual aural representation captured for playback could only be protected by the common or statutory laws of individual states. This feature was carried forward The final article addresses intellectual property in the secured transactions context. into the comprehensive revision of the Copyright Act implemented on January 1, 1978. Although the Willa E. Gibson examines the flaws and uncertainties in the system when a party Copyright Act contained a sweeping provision that brought works created prior to the legislation tries to perfect security interests in intellectual property. Gibson examines the under federal protection, pre-1972 sound recordings were specifically exempted. The extent to which current statutory scheme, how intellectual property law intertwines with the this lack of status has created a legal and environmental void is best demonstrated by a series of Uniform Commercial Code, and how the system has led to lender unease. cases litigated in New York from 2003 to 2006, known colloquially as the Capitol v. Naxos cases. They involved a series of classical music recordings made in England in the 1930s and reissued in 1999, over a decade after their United Kingdom copyright had expired. The critical New York state We also feature three student articles. Priya Desai examines the struggles of court case—Capitol v. Naxos IV—strongly implied that states have a fundamental power of copyright copyright law to adapt to ever-evolving methods of infringement. Desai reviews the covering those things defined in the Constitution as writings, but which do not fall under federal failed attempts of copyright law to deal with changing technologies and then copyright. Moreover, federal copyright does not extinguish such state powers, but instead merely proposes that we turn to patent law to inspire a working solution. Next, Edward preempts them for the duration of federal protection, at which point state copyright reverts—in Kuester discusses the rise of fantasy sports and how courts have struggled to balance perpetuity. First Amendment rights with the athletes’ rights of publicity in this expanding market. The comment addresses whether, in the modern era, a patchwork of state laws protecting rights of publicity remains sufficient. Finally, Nick Vogel takes a look at the growing move to a decentralized Internet. Taking inspiration from Bitcoin, organizations are creating decentralized autonomous applications that exist on no single server but across thousands upon thousands of user computers. This comment examines what will happen when copyright infringement appears in such a network and how copyright holders should adapt to Web 3.0. Copyright © 2015 The John Marshall Law School Sincerely, Benjamin Lee Editor-in-Chief Cite as Bruce D. Epperson, From the Statute of Anne to Z.Z. Top: The Strange World of American Sound Recordings, How it Came About, and Why it Will Never Go Away, 15 J. MARSHALL REV. INTELL. PROP. L. 1 (2015). iv [15:1 2015] The John Marshall Review of Intellectual Property Law 2 FROM THE STATUTE OF ANNE TO Z.Z. TOP: THE STRANGE WORLD OF AMERICAN SOUND RECORDINGS, HOW IT CAME ABOUT, AND WHY IT WILL NEVER GO AWAY BRUCE D. EPPERSON FROM THE STATUTE OF ANNE TO Z.Z. TOP: THE STRANGE WORLD OF AMERICAN SOUND RECORDINGS, HOW IT CAME ABOUT, AND WHY IT WILL I. INTRODUCTION................................................................................................................. 2 NEVER GO AWAY II. ....................................................................................................................................... 4 BRUCE D. EPPERSON* III. ..................................................................................................................................... 14 IV. .................................................................................................................................... 22 V. ..................................................................................................................................... 31 I. INTRODUCTION VI. .................................................................................................................................... 35 Uniquely among all industrialized nations, the United States extended no VII. .................................................................................................................................... 44 copyright protection to sound recordings until February 15, 1972. Between the VIII. .................................................................................................................................. 52 adoption of the Copyright Act of 19091 and the 1971 Sound Recording Act Amendments,2 only musical compositions submitted to the Register of Copyrights in the form of sheet music were protected by federal copyright.3 The individual aural representation captured for playback on a cylinder, disc, or tape could only be protected by the common or statutory laws of the individual states. The 1971 Sound Recording Act Amendments specified that only future sound recordings were subject to federal protection.4 This feature was carried forward into the comprehensive revision of the Copyright Act enacted in 1976 and implemented on January 1, 1978.5 Although Section 302 of the Copyright Act contained a sweeping provision that brought works created prior to the 1976 legislation under federal protection, pre-1972 sound recordings were specifically exempted by Section 301(c).6 In the 1990s, federal courts in California and Tennessee, relying on language that was admittedly vague, held that commercially issued pre-1972 sound recordings were “published.” However, because the Register of Copyright had not issued a notice protocol (instructions on how the “circle-C” or “circle-P” symbol should be displayed on the label) until after February 1972, it was impossible for these records * © Bruce Epperson 2015. Bruce Epperson, P.A., Attorneys and Planners, Ft. Lauderdale, Florida. B.S., Economics, University of Kansas, 1988; M.U.R.P, University of Colorado, 1990; J.D. Shepard Broad College of Law, Nova Southeastern University, 2004. Member, Florida Bar, 2004. Member, Copyright and Fair Use Committee, Association for Recorded Sound Collections (ARSC) and “Fair Use and Copyright” columnist in the association's biennial publication ARSC JOURNAL. Previously published in the JOHN MARSHALL LAW REVIEW (2005), FLORIDA BAR JOURNAL (2006), and TRANSPORTATION LAW JOURNAL (2010). Author of MORE IMPORTANT THAN THE MUSIC: A HISTORY OF JAZZ DISCOGRAPHY (University of Chicago, 2013). 1 Copyright Act of 1909, Pub. L. No. 60-349, 35 Stat. 1075 (1909). 2 Sound Recordings, limited copyright, Pub. L. No. 92-140, 85 Stat. 391 (1971). 3 37 Fed. Reg. 3055 (Feb. 11, 1972) (proposed amendments to 37 C.F.R. §§ 202.8 and 202.15a regarding permissible registration of musical compositions and sound recordings). 4 Sound Recordings, limited copyright, Pub. L. 92-140, 85 Stat. 391 § 3 (1971) (“The provisions of title 17, United State Code, as amended by section 1 of this Act, shall apply only to sound recordings fixed, published, and copyrighted on and after the effective date of this Act and before January 1, 1975 and nothing in title 17, United States Code, as amended by section one of this Act, shall be applied retroactively or be construed as affecting in any way any rights with respect to sound recordings fixed before the effective date of this Act.”). 5 The Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2544 (1976). 6 17 U.S.C. § 303 (after 1997, 17 U.S.C. § 303(a), see Pub. L. 105-80, § 11, 111 Stat. 1534 (1997)); 17 U.S.C. § 301(c) (2000). 1 [15:1 2015] The John Marshall Review of Intellectual Property Law 2 FROM THE STATUTE OF ANNE TO Z.Z. TOP: THE STRANGE WORLD OF AMERICAN SOUND RECORDINGS, HOW IT CAME ABOUT, AND WHY IT WILL NEVER GO AWAY BRUCE D. EPPERSON FROM THE STATUTE