Since the advent of digital distribution technologies, substantial attention has been paid to whether the grant language in agreements made before the digital revolution effectively conveyed rights in that new technology that were not known at the time the contract was made. For example in the book industry, a question raised is whether an author’s simple grant to a publisher of “volume rights” or “book rights” includes digital book rights. A definitive answer is yet to come.
But even when there’s a pre-Internet grant that is interpreted to embrace digital exploitation, there is a companion issue that hasn’t gotten as much attention—at least not until a recent U.S. Court of Appeals for the Ninth Circuit decision involving sound recordings in F.B.T. Productions, LLC; EM2M LLC v. Aftermath Records, Interscope Records, UMG Recording Inc. and Ary Inc., No. 09-55817, Sept. 3, 2010.1
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