copyright act – Techdirt (original) (raw)

Time To Say Goodbye To All Pre-1972 Music?

from the PAY-US-screams-the-recording-industry dept

As we’ve been covering over the past few years, there’s been a big battle going on over the copyright status of “pre-1972 sound recordings.” That may sound like a weird thing to be arguing over, but it’s due to a weird bit of history in US copyright law. You see, for a very long time, Congress believed that copyright law could not cover sound recordings. However, various states stepped in and either through explicit state law or through common law, created copyright-like regulations for sound recordings. When copyright was finally updated in the 1976 Copyright Act, pre-1972 works were left out of the federal copyright system, even as federal copyright law basically wiped out all state copyright law for everything else. This has created some weird issues, including that some songs that should be in the public domain under federal copyright law are locked up in perpetuity. A simple and reasonable solution to this would be to just move pre-1972 sound recordings under federal copyright law and level the playing field. But, the RIAA has resisted this. That might seems strange, until you realize that the RIAA and its friends saw this weird quirk of copyright law as a wedge issue with which to try to squeeze more money out of everyone.

It started a couple years ago when basically everyone started suing Sirius XM and Pandora for playing pre-1972 music without getting a separate license to do so. Once again, the reasoning here is a bit complex, but prior to the 1976 Act, there really wasn’t even any concept of a “public performance right” for sound recordings — only for compositions. The idea of one for sound recordings only came into existence with the updated copyright law. But what the RIAA and friends are trying to do is to rewrite history and pretend that these various state laws also retroactively meant to include a public performance right, and that these newer services were violating it.

In a series of rulings in the last year, Sirius XM has lost a few of these lawsuits, while winning another one. This has many copyright scholars quite concerned that decades of settled law are being tossed out.

More importantly, we pointed out that this could mean the end of hearing classic songs from the 50s and 60s on internet and satellite radio. But, it appears that the RIAA and friends are not stopping there. Last month they took things up a notch and started suing terrestrial radio stations over pre-1972 music as well.

And that brings up a whole different issue. As you probably know, terrestrial radio does not need to pay at all for the use of sound recordings (it does pay songwriters/publishers for the use of the composition), because Congress has (correctly) noted that songs on the radio are a form of advertising, and thus the musicians benefit from it, and there’s no reason to pay fees for the performance again. While the RIAA whines about this, the major labels own decades-long practices around payola make it clear that they, too, recognize that radio play is valuable for the musicians and worth paying for — rather than worth being paid for.

Every few years, the RIAA pushes to have Congress change the law, and to start making terrestrial radio pay a “performance rights fee” for sound recordings as well. But that never seems to get anywhere. So, instead, the RIAA appears to be attacking this via the pre-1972 loophole, and claiming that even though Congress explicitly has said that radio doesn’t need to pay, such a promise does not apply to pre-1972 songs. The new lawsuits, from ABS entertainment, aims to be a class action lawsuit for a bunch of pre-1972 music, and has targeted terrestrial broadcasters who also stream online, including CBS, iHeartRadio (previously known as Clear Channel) and Cumulus — the big three radio broadcasters.

In the meantime, one of the first original cases concerning this issue, against Pandora, has now moved to the 9th Circuit appeals court and a whole bunch of copyright experts have weighed in hoping that the appeals court will reverse the lower court and remind everyone that these state laws never included a public performance right in the first place. Unfortunately, this is the 9th Circuit, which is somewhat famous for its wacky copyright rulings, so pretty much anything goes here. However, should it come out in favor of the RIAA’s position, it could mean that pre-1972 music will start disappearing not just from streaming and satellite radio, but from traditional terrestrial radio as well.

Filed Under: copyright, copyright act, pre-1972 music, pre-1972 sound recordings, radio, streaming
Companies: cbs, cumulus, iheartradio, pandora, siriusxm

from the overreach... dept

Two and a half years ago, Universal Music (UMG) sued Grooveshark (or, really, its parent company Escape Media). The case has had a few twists and turns since then, but the judge has issued a ruling (embedded below) that is pretty clear in suggesting that Universal Music’s key argument — the the DMCA does not apply to pre-1972 songs — was a massive overreach, and the court will not accept it. Separately, the court flat-out rejected UMG’s attempts to have Grooveshark’s counterclaims of tortious interference dismissed. There’s no way to look at this other than a pretty big win for Grooveshark and a big loss for Universal, though the case is far from over.

On the key point, Grooveshark has long argued that what it does is really no different than what YouTube does, in that it allows individuals to upload content, and if it receives a takedown notice, it proactively follows the DMCA’s takedown process and removes that content. Realizing that getting around the DMCA’s safe harbors was a longshot, Universal Music instead reverted to a somewhat twisted argument, saying that pre-1972 sound recordings are not covered by the DMCA, and thus there are no safe harbor protections. To understand why they’d make this argument, you can read up on the history of pre-1972 copyrights for sound recordings — a huge mess that the US Copyright Office is still trying to figure out how to fix. But, the short version is that, currently, sound recordings from before 1972 are not technically under US federal copyright law, but various (and often crazy) state laws. Since the DMCA refers to works under federal copyright law, Universal Music’s arguments is that the DMCA doesn’t apply, thus the safe harbors don’t apply, and Grooveshark can’t rely on its safe harbor compliance to avoid liability.

If this argument sounds somewhat familiar, that’s because it’s the same one EMI tried to use against MP3Tunes, which failed spectacularly. The NY state court in this case appears to be well aware of that, citing the MP3Tunes case at length.

An internet service provider which seeks to benefit from the safe harbor provisions of the DMCA is required, as a condition of receiving such protection, “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” …. Certainly the thrust of the DMCA is to relieve internet service providers of the initial need to ascertain the copyright status of the sound recordings that they make available, to place the burden of asserting copyright ownership on the owners of such copyrights, and to require the internet service providers to “take down” infringing material, upon receipt of a valid notice of infringement. There is no textual, or other reason, to think that Congress intended to limit that distribution of responsibilities to only post-1972 recordings.

Moreover, the phrase “copyright owners,”…. is applicable to the owner of a common law copyright, no less than to the owner of a copyright under the Copyright Act….

End result? Sorry, UMG, but you can’t just use this loophole to get around the clear and stated purpose of the DMCA’s safe harbors.

This Court is not attempting to extend the Copyright Act to pre-1972 Recordings, but, nonetheless, does find, based on the relevant language of the statutes and the analysis discuss above, that the safe harbor provision codified by section 512(c)(1) of the DMCA is applicable to Pre-1972 Recordings.

That shoots a pretty big hole in UMG’s case, as it’s now going to have to show that Grooveshark’s activities cause them to lose DMCA safe harbors, which is a much bigger hill to climb.

Separately, UMG failed in trying to get various counterclaims dismissed. The focus here was on claims that UMG contacted two companies — HP and INgrooves — to get them to back out of deals with Grooveshark. There are a bunch of different arguments (most pretty technical) that UMG makes to assert that these counterclaims should be dismissed, but the court isn’t buying most of them. For each precedent UMG brings up, the court highlights that the facts are different here and UMG’s reliance on particular caselaw “is misplaced.”

UMG had a couple of relatively minor victories: having one of the counterclaims dismissed (one having to do with antitrust activity, because Grooveshark only showed harm to itself, rather than competition in general) and also a rejection of an attempt to use Section 230 safe harbors, which explicitly carve out intellectual property. Grooveshark/Escape Media tried a rather convoluted argument (sort of the reverse of UMG’s pre-1972 DMCA argument, claiming that Section 230 safe harbors could apply to works covered under state copyright law). The court rejects this as silly, but it’s effectively meaningless since it still grants the DMCA’s safe harbors (which, admittedly are not quite as strong as the Section 230 safe harbors, but this is definitely the more reasonable result).

All in all, there’s still a long way to go in this case, but today’s ruling is clearly a pretty big loss for UMG and a win for Grooveshark.

Filed Under: common law copyright, copyright act, dmca, safe harbors
Companies: escape media, grooveshark, hp, ingrooves, universal music

Key Ruling In The Fight Over Artists Getting Their Copyrights Back Suggests The Labels May Be In Big Trouble

from the y-m-c-a dept

We’ve covered a ton of stories about the coming termination rights battles. If you don’t recall, under current copyright law, content creators can “terminate” the assignment of their copyright after 35 years and regain the copyright. This is a right that cannot be negotiated away or given to anyone but direct heirs. Since the specifics of this rule went into effect in 1978, we’re reaching the point where lots and lots of musicians who came out with work in the late 70s can start reclaiming their copyrights from the labels. The labels, of course, have gone to great lengths to fight this — even to the point of some allegedly sneaky practices in trying to get the law changed, and also (almost certainly incorrect) claims that musicians signed to a label are actually “work for hire” situations, where the label retains the copyright. That argument is unlikely to hold up to much scrutiny in many of these cases.

The first of the really key cases (there have been some others that actually focused on an earlier law) involved one of the members of “The Village People” trying to reclaim his copyrights for works released in 1978. This actually seemed like it would be a good case for the major labels in that they actually could have made a semi-credible argument that the Village People were a “work for hire” situation — especially since the group was put together on purpose, rather than a group that had formed outside and was then picked up by the label. However, for reasons that aren’t entirely clear, the two publishing companies — Scorpio Music and Can’t Stop Productions — who are fighting the attempt by The Village People’s Victor Willis to terminate the assignment — chose to drop the work for hire claim, but instead focused in on a claim that Willis couldn’t terminate the copyright assignment, because he shared the copyright with other members in the band.

The problem, of course, with putting all your eggs in one basket, is that the basket can fall… and that seems to have happened. The judge in the case has pretty decisively ruled against the publishers and said that partial copyright owners still can exercise their termination rights:

“It would be contrary to the purpose of the [Copyright] Act to require a majority of all joint authors who had, at various times, transferred their copyright interests in a joint work to terminate the legally permissible separate grant by one joint author of his undivided copyright interest in the work. The purpose of the Act was to ‘safeguard authors against unremunerative transfers’ and address ‘the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited. Under Plaintiffs’ interpretation, it would be more difficult to terminate an individual grant than it would be to make it in the first place.”

That ruling is going to make plenty of labels/publishing companies pretty nervous — but it seems like a pretty good thing for artists.

Filed Under: copyright act, termination rights, the village people, victor willis
Companies: can't stop productions, scorpio music

from the apparently dept

Via Michael Scott, we learn that there was recently a debate over whether or not the government could use the phrase “music piracy” to describe the actions of an individual who had been charged with criminal copyright infringement. The case involved Adil Cassim, who had been arrested last year and charged with running a “release group,” which are the private networks of people online who work hard to get unauthorized copyrighted materials (music, movies, etc.) distributed as quickly as possible. While Cassim was apparently acquitted by the jury (so far, I can’t find any more info on what happened… Update: TorrentFreak has some details), there was a discussion over how the gov’t could refer to his actions. His lawyer argued that “music piracy” is a prejudicial term, not related to the issues in the lawsuit, and that the gov’t should not be allowed to use that term in front of the jury. The judge denied this:

Defendants seeks to exclude any use of the terms “music piracy” from the jury. They argue that this term is not evidentiary, has no probative value, and is highly inflammatory such that it will create undue prejudice. The Government, in response, argues that this term would be highly probative of the Defendants’ knowledge of the unlawful object of the conspiracy. The Court finds that, because this term was and is commonly used to refer to the conduct in question, it will be difficult for witnesses and lawyers to generate an adequate substitute during questioning. It need not, therefore, be entirely excluded. However, the Court invites counsel for Defendants to suggest any possible limiting instructions which, if offered to the jury, might mitigate any possible prejudice that the term might create.

However, as Ray Dowd points out in the link above, this doesn’t seem to make much sense. The word piracy is not in the statute, and the crime he’s charged with is criminal copyright infringement, not piracy, so there’s no reason that the proper terms can’t be used:

I have litigated many copyright infringement cases without the need to refer to the word “piracy” though as a civil plaintiff it is a nice synonym referring to a person who makes multiple exact duplicates, rather than someone who borrowed portions of a copyrighted work. But it certainly is not necessary in a civil proceeding and would appear to me to be highly improper to use in a criminal proceeding.

Of course, since the guy was acquitted anyway, perhaps the entertainment industry is correct that “piracy” isn’t derogatory enough anymore.

Filed Under: adil cassim, copyright, copyright act, criminal copyright infringement, music piracy, release group

from the now-that's-chutzpah dept

A few years back, there was a research paper released that posited that the fines sought by the RIAA for copyright infringement were unconstitutional. While this argument has been brought up in some court cases, and even considered by judges, it’s yet to have been an important part of any decision. That may be about to change.

In the Elektra vs. Barker lawsuits, where earlier rulings had clearly sided with the RIAA on the question of whether or not “making available” was infringement, defendant Denise Barker is taking a new tack: admitting to infringement, but challenging the constitutionality of both the fines and the Copyright Act itself for establishing those fines. Instead, Barker notes that a reasonable “loss” on a downloaded piece of music is about 3.50(whichevensoundshigh).Consideringthatthefinesstartat3.50 (which even sounds high). Considering that the fines start at 3.50(whichevensoundshigh).Consideringthatthefinesstartat750 and go up from there, there’s a reasonable argument to be made that the fines are excessive (and there’s some case law to support that).

While it’s an interesting argument, the chances of a judge buying it seem slim (especially considering the court already sided with the RIAA on most of the “making available” thought process). It will be a fascinating lawsuit to watch, but the odds are pretty strong against having the court decide that the Copyright Act is unconstitutional.

Filed Under: constitutionality, copyright, copyright act, denise barker, fines, ray beckermann