And with the advent of the digital age, we have frustration of purposes and mutual mistake for defenses to those contracts. Were the state copyrights filed pre-1972 in anticipation of me emailing my brother a link to “Purple Haze” on YouTube?
I would also argue a preemption doctrine that the older federal copyright law doesn’t allow for a “living, breathing” state copyright law. It was meant to freeze it in place. So if you can find a pre-1972 law or case cite about me uploading Purple Haze to YouTube, or something that reasonably resembles it, then go at it.
It really doesn’t matter what you argue. Common law doesn’t require me to find what you are demanding I find. If uploading a file to YouTube can be analogized to any pre-digital activity, such as copying, performing, broadcasting, transmitting, publishing, etc., then that’s all it takes. That’s how common law works.
Actually, it’s quite ironic that you seem to be insisting that copyright law must explicitly address each new technology separately. Most netizens want copyright law to be applied on a technology neutral basis.
Furthermore, if federal law explicitly states that it is not pre-empting state common law for pre-1972 sound recordings, then your pre-emotion argument is irrelevant.
Also note that Section 301 not only leaves state common law intact (which means not only the common law as it existed in 1972, but also any development in common law after that, because a fundamental characteristic of common law is that it is not static) but also explicitly said it was not pre-empting state statutory law. That means that it was leaving state jurisprudence entirely intact.
I’m not a netizen. I’m just arguing for a (hypothetical) client. You tell me that my client is guilty because he uploaded Purple Haze in violation of New York common law. What does New York common law say about copyright of digital technology? I’m sure that there is a case that says that phonographic or magnetic tape reproductions aren’t allowed. My client didn’t do that.
Oh, you want to say that digitally uploaded is the same as phonographic recording? My client didn’t know that under New York common law. And the federal government under the DMCA gave him safe harbor, or so he thought.
We read statutes in conjunction with old case law? Okay. But is that equitable, your honor? Is my client expected to know how this court would rule about phonograph recordings from 50 years ago and how it would apply it to YouTube?
Seriously? Your honor, all the common law cases for murder are things like strangling with a rope, stabbing weigh a unique knife, or shooting with a six-shooter. My client strangled with a Swatch wristwatch band, stabbed with a Ginsu knife and shot with an intercontinental ballistic missile. How could he possibly have known that this was illegal?
Copyright law speaks in terms of protected work, copies, reproduction, distribution, recordings, etc., not in terms of specific media.
Ignorance of the law has never been a valid defense, Mott on criminal law, not in torts, not in contracts, never in a strict a liability regime such as copyright law.