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Appeals court says safe harbours do apply to pre-1972 recordings in US

By | Published on Friday 17 June 2016


If you think it’s bizarre that in America those safe harbours everyone loves so much might not apply to sound recordings released before 1972, in doing so providing record labels with a sneaky way of suing platforms which rely on the harbours to avoid liability for copyright infringement, well, you should get yourself a job in the Second Circuit appeals court.

Because judges in that US court have ruled that the safe harbours should apply to all and any sound recordings protected by copyright Stateside.

As much previously reported, US-wide federal copyright law only applies to sound recordings released after 1972. Earlier sound recordings rely on state-level copyright law for protection. This has led to much chatter as to whether certain specific elements of federal copyright law could or should still apply to sound recordings that pre-date 1972.

In more recent years, this debate has centred on whether the obligation for online and satellite radio services like Pandora and Sirius XM to pay royalties to labels for the recordings they use should apply to golden oldies, because that obligation comes from federal law (which also says AM/FM stations do not have to pay).

Though, in its fight to force Pandora et al to pay up when streaming 1950s and 1960s repertoire, the record industry has generally argued that the obligation to pay royalties can be found in state-level copyright law as well as federal statute, even though state-level rules are usually a bit vague on this point. But in the main, that argument has found favour in court, especially in California and New York.

One of the reasons the labels fought Pandora with this argument – rather than just saying the obligation to pay royalties in federal law should be applied to all copyright protected recordings – was because they were concurrently arguing that the safe harbours in the US-wide Digital Millennium Copyright Act should not apply to pre-1972 tracks.

That argument was being used in cases against digital platforms that were hosting, in one way or another, sound recordings without licence, but which were claiming safe harbour protection. Labels felt some services – the now defunct Grooveshark in particular – were misusing the safe harbours to build music platforms without getting any licences from the labels.

But, with some courts having already set the obligations of safe harbour dwellers pretty low, there was a fear that if the record companies sued the likes of Grooveshark for straight copyright infringement they’d successfully defend themselves on safe harbour grounds, setting a dangerous precedent. Therefore they looked for alternative approaches, including suing over the streaming of pre-1972 tracks, on the basis that the safe harbours of federal law didn’t apply with recordings protected by state law.

Another big case where that argument was put forward by the record industry was a wide-ranging copyright suit against video sharing site Vimeo which, unlike big bad YouTube, has no significant licensing deals in place with the music industry. In litigation led by then EMI label Capitol, Vimeo in the main prevailed, though the judge at first instance in 2013 sided with the record company on the pre-1972 point.

Appeal judges do not concur, saying that safe harbours not applying to pre-1972 recordings would “defeat the very purpose Congress sought to achieve in passing the statute”, according to Law 360. “Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws”.

“It is not as if pre-1972 sound recordings were sufficiently outdated as to render the potential liabilities insignificant”, judges added. “Some of the most popular recorded music of all time was recorded before 1972, including work of The Beatles, The Supremes, Elvis Presley, Aretha Franklin, Barbra Streisand and Marvin Gaye”.

So good news everybody – those safe harbours you all hate now definitely apply to the entire sound recording repertoire in the US. Though fans of common sense might nevertheless welcome this ruling.