Staying in the “Copyright/Digital Music” realm, here’s a story that involves the popular Florida-based streaming music site, Grooveshark. That site has faced lengthy legal action from all the major recording studios over the last few years, and a recent development adds a new wrinkle to the world of copyright law, which may be significant. The plaintiff in this particular case is Universal Music Group (“UMG”), and the songs in question are those recorded prior to 1972. Why does that date matter? From the opinion:
That date is significant, because when the Copyright Act was amended in 1971 to include sound recordings, Congress expressly extended federal copyright protection only to recordings “fixed” on February 15, 1972 or after. Indeed, the Act expressly provided that “[w]ith respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited… UMG claims in this action that by permitting the pre-1972 recordings to be shared on Grooveshark, defendant infringed on its common-law copyright in those works, and that the DMCA does not apply to those recordings.
As regular IT-Lex readers will be aware, the DMCA (Digital Millennium Copyright Act) is the federal law that rules over all instances of alleged online piracy and copyright infringement. The DMCA does offer content providers a “safe harbor”, which defends the site from liability as long as it responds to takedown notices in a prompt manner. Big copyright lawsuits like the ones against Kim Dotcom or IsoHunt all involve the particularities of this provision. In this instant matter, a lower court had held that:
“there is no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post—1972 recordings.”
In other words, that court held that the date was arbitrary, and that the same safe harbor protections should be extended to older recordings too. UMG appealed the matter, and the Appellate Division of the New York Supreme Court issued the most recent opinion, and reversed the previous decision. The court went for a literal interpretation of the statute:
Congress explicitly, and very clearly, separated the universe of sound recordings into two categories, one for works “fixed” after February 15, 1972, to which it granted federal copyright protection, and one for those fixed before that date, to which it did not. Defendant has pointed to nothing in the Copyright Act or its legislative history which prevents us from concluding that Congress meant to apply the DMCA to the former category, but not the latter.
Quoted in the Hollywood Reporter, Grooveshark’s attorney John Rosenberg said of the verdict:
“The Court’s decision, if it stands, will significantly undermine the Safe Harbor protections of the Digital Millenium Copyright Act and may severely disrupt the operations of all Internet Service Providers who, like Groovehark, permit access to user-generated music content.”
This decision could have significant impact on some very major web providers. A quick search indicates that, through YouTube, you can find full streams of every single Beatles studio album, all of which were released prior to 1972. Without the safe harbor protection, will YouTube be automatically liable for every one of these? Apparently, 72 new videos are added to that site every minute, so vetting each individual upload is not really an option. It’ll be interesting to see what impact this decision has.
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