A New York appeals court has barred DCMA “safe harbor” for a music locker service for old songs still under copyright that were released before 1972 under a loophole in state/federal jurisdiction over copyright. Thus, they may be sued for copyright infringement for those works.
A grim tiding, if you believe some folks:
What are the implications of this decision?
If only Youtube had some powerful corporate backer to protect it. I guess it’s doomed.
Protect it from multiple lawsuits by an array of pre-1971 copyright holders? Why wouldn’t they win in court?
Because YouTube scrupulously follows the provisions required by the DMCA, and are probably already paying attention to the legal environment surrounding this change.
Not to mention the article pointing out that YouTube already has pre-existing agreements with most of the major labels for how they handle this kind of thing.
Fact of the matter is, YouTube is a big enough player (especially with Google backing it, and Google Play sells music in enough of a quantity to matter even if they’re not in the same league as iTunes) to not really have to worry about pernicious lawsuits. And they’re friendly enough with copyright holders to make it a much better idea to work with them than sue them.
Wow, what a dumb ruling. Of course the DMCA makes the previous copyright law moot. That was the entire point! The idea was that the current copyright laws did not adequately cover the modern situation. There just is no way for an aggregation service to police all of their content. The old copyright model was outdated, so it was updated.
The safe harbor provision was specifically created to keep this sort of thing from happening!
Agreed. It’s a terrible decision.
Is there more to this decision than I’m getting? The court is basically saying that the law can’t mean what Grooveshark believes it means because that would violate an earlier law. Um, so? That’s how it’s supposed to work. A new law cannot be invalid just because it contradicts older laws. Otherwise what would be the point of passing new laws?
17 USC § 301(c) says:
That specifically and explicitly says that the federal copyright law does not erase copyright rights or remedies under the common law or statutes of any State for sound recordings made prior to 1972.
The DCMA went on to modify federal law and create a “safe harbor” provision. But what language in the DCMA makes you think it also abrogates state law? For example, the DCMA defines a a copyright infringer as anyone who “… violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122…” of 17 USC §501[a]. The lawsuit under discussion is about violating state copyright law.
Where do you see the DCMA saying that state copyright remedies are erased?
No. The court is saying that before the DCMA was passed, federal copyright law didn’t erase state copyright law for any songs recorded before 1972. And it says that AFTER the DCMA passed, the same thing was true, because the DCMA only refers to federal copyright law.
I see Bricker got to this before I could. I’ll just add that since Section 512 does not explicitly abrogate Section 301, then a court must first determine whether there is a way to interpret Section 301 in such a way that both provisions make sense.
And there’s no reason to get all pissed off at a court for statutory interpretation that you disagree with on a policy basis. If Congress had meant to apply the safe harbor to pre-1972 sound recordings, then all it has to do is enact a correction to the language of the statute. Your beef is with Congress, not the court.
Wouldn’t the federal law supersede the state law via the supremacy clause? Honest question.
Federal law only supersedes state law in certain circumstances, such as when it (1) explicitly states that it is pre-empting state law or (2) when there is no reasonable way to interpret the statutes so that they both have meaning without conflicting.
In this case, however, we are talking about two federal laws, not a federal law and a state law.
Ascenray is correct – although I’d say we’re talking about three laws: two federal (the safe harbor provision of the DCMA, 17 U.S.C. §§ 512; the original federal law taking exclusive federal jurisdiction for post-1972 recordings, 17 USC § 301(c)), and one state: the common-law copyright of the state of New York.
So federal law could have indeed superseded New York law – in fact, it did, for all recordings made after February 1972. But Congress explicitly said in 17 USC § 301(c) that it did not intend to supersede state law with respect to recordings made before 1972. And nothing in the DCMA changed that.
Well that makes sense. Thanks.
Can we all at least agree that “Beginning of the end of Internet file sharing of any kind?” is unnecessarily incendiary and does not at all reflect the content of the thread?
I agree with that. This kind of panic-mongering has become characteristic of discussions about copyright law and the internet.
I’m tempted to flip-flop and agree with you, but does common law copyright apply to digital transmission? That would seem to require an update to the common law and make it post-1972, no?
Why wouldn’t it apply to digital transmission without updating? Exclusive rights like making copies, performing, distributing, transmitting, etc., would easily span new technological means.
I’m sure that all of the New York common law on point dealt with physical media. Turning bits into bytes through electricity was certainly not part of the common law.
One of the principle characteristics of common law is the application of general principles by analogy. The whole point of common law is that judges can figure out what’s right in the absence of legislative action. And common law didn’t stop developing in the pre-industrial age.
Indeed, when it comes to pre-1972 sound recordings, the primary area of law that applies is state contract law, which is a living, breathing area of law right up to today.
Indeed, state contract law has been in continuous application all along. How do you think disputes over pre-1972 sound recordings have been being resolved all this time? (Pat myself on the back for that verb conjugation)