[x-pubpol] NY Court finds DMCA does not apply to pre-1972 recordings

[Joly MacFie]

http://www.broadcastlawblog.com/2013/04/articles/music-rights/how-a-ny-state-court-decision-on-pre1972-sound-recordings-clouds-the-safe-harbor-protections-of-websites-featuring-user-generated-content/

<snip>

In essence, the plaintiff in the case, Universal Music, successfully
argued that infringement of pre-1972 sound recordings by user
generated content was not excused by the DMCA, as pre-1972 sound
recordings are not protected by Federal law, but instead by state
laws. As we have written before, pre-1972 sound recordings first
licensed in the United States are not protected by Federal Copyright
Law, as those laws were not extended to cover sound recordings at all
until 1972, and the revision in the law at that time specifically did
not federalize prior sound recordings. The Copyright Office recently
held a series of hearings and issued a report (which we summarized
here) suggesting that pre-1972 sound recordings should be federalized,
but Congress has not acted on that request.

So this New York Court looked at the Copyright Office’s report on
pre-1972 sound recordings, and the report’s criticism of a Federal
Court case involving a company called MP3tunes which determined that
the DMCA did cover such recordings in its safe harbor.  The NY Court
determined that the defendant in the case, music service Grooveshark
and its parent company Escape Media Group, were not insulated from
liability for infringing pre-1972 sound recordings posted by users of
its site. The MP3tunes court had ruled to the contrary – finding that
the copyright infringement covered by the DMCA safe harbor was not
just Federal infringement, but infringement of any sort of copyright,
including common law copyrights like those those governing pre-1972
sound recordings. To hold otherwise, said the Court in MP3tunes, would
undermine the entire system established by the DMCA, as service
providers would have to review each and every piece of user generated
content to insure that it did not contain an unlicensed pre-1972 sound
recording.

The NY Court concluded that the MP3tunes decision was wrong, reading
the DMCA to reference other sections of Federal copyright law in
connection with its definition of a copyright violation and a
copyright infringement that came within the safe harbor. These
references were enough, said the NY Court, to find that the clear
language of the DMCA statute, and its statements that it did not
undercut any other rights of copyright holders, meant that pre-1972
sound recordings were not covered by the safe harbor provisions, and
that the MP3tunes decision was wrong.  The NY court felt that the
including pre-1972 sound recordings in the safe harbor would undercut
the rights of copyright holders to sue anyone for infringement which,
if it was the intent of Congress to do so, should have been made
explicitly clear.  The NY decision did not mention that, in fact, the
copyright holders do still have a right to sue even if the safe harbor
applied - though that right would be to sue the user who posted the
infringing material, not the service who provided the technological
means by which the posting could be done.

The NY Court only briefly discussed the disruption that such a
decision would bring to the online universe and all those services
relying on the DMCA safe harbor. Essentially, the Court said that, if
indeed Congress didn’t mean this result, it should clean up the
language of the DMCA safe harbor, as the Copyright Office had
suggested.

The NY Court did not discuss why the Section 230 exemption did not
apply to the case (other cases have suggested that the “intellectual
property” exemption of Section 230 is broader than the “copyright”
definition of the DMCA, so that there may be a hole in the safety net
otherwise provided to Internet service providers). In essence, the
decision, if upheld and spread to other jurisdictions, could create a
loophole in the safe harbor otherwise enjoyed by media sites that
allow users to post content that the users create – threatening not
only the major players, but many smaller media companies, including
many broadcasters, who allow users to post audio and video productions
that they create on the media outlet's website.

This is, of course, but one decision of one court – an intermediate
state appellate court in New York. So this decision can be appealed to
the New York Court of Appeals, and it will no doubt be debated in
Federal Courts where most DMCA cases, and other cases of copyright
infringement, arise. But the dispute between the courts on this
fundamental issue for sites that feature user-generated content
demonstrates just one of the many issues under Copyright laws that
Congress may well have to review in its review of the Copyright Act.


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