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Capitol takes safe harbour on pre-1972 recordings case to Supreme Court

By | Published on Tuesday 20 December 2016


If you thought that Sirius and Pandora starting to do licensing deals in relation to pre-1972 sound recordings brought to an end all that debate around how, exactly, American copyright law works on golden oldies, well, not quite.

As previously reported, US-wide federal copyright law only protects sound recordings released since 1972, with older records protected by state-level copyright law. Because American satellite and online radio services like Sirius and Pandora are specifically obliged to pay the labels royalties when they play their tracks under federal law, they argued no such royalties were due on older records. Though courts in California and New York eventually decided that there was probably an obligation to pay royalties under state law too.

There is another side to this whole copyright technicality fest though. Because the safe harbours that everyone in the music industry now hates so much also come from federal copyright law. It’s the safe harbours that allow user-upload sites to avoid liability for copyright infringement when their users post videos containing unlicensed music. But, wondered the record industry, what if an uploaded video contains a track from the 1960s? Given that that recording is protected by state law, perhaps the safe harbour should not apply?

If that was the case, it would be a sneaky way for labels to put pressure on safe harbour dwelling user-upload websites that will inevitably end up hosting files or videos containing 1960s tracks. And while it was busy trying to find a way to sue pesky safe harbour dwelling Grooveshark out of business, Universal Music tried filing a lawsuit over the pre-1972 tracks that the user-upload streaming service hosted. Though in the end the case never got to court.

So the real test case on this issue was that pursued by Capitol – a former EMI label and now also part of Universal – against YouTube rival Vimeo. This legal battle has been rumbling on since 2009, but back in June America’s Second Circuit court ruled in favour of the video site, saying that exempting older recordings from the safe harbour principle would “defeat the very purpose Congress sought to achieve in passing [it]”.

The Second Circuit then refused to rehear the case back in August, but last week Capitol filed papers with the US Supreme Court. It wants judges at the top court to consider the case, with the label’s lawyer arguing – according to The Hollywood Reporter – that “Section 301(c) of the Copyright Act explicitly protects state law remedies for infringement of pre-72 sound recordings until February 2067”.

Capitol’s filing also says that the Second Circuit judgement conflicts with rulings in the New York state courts, while urging the Supreme Court to take the case because the “Second Circuit’s decision … diminishes the legal protections enjoyed by owners of every sound recording made in the United States prior to 15 Feb 1972 – including among them works of immense cultural and commercial significance like those of The Temptations and The Supremes, Miles Davis, Ella Fitzgerald, Frank Sinatra, Pablo Casals and Yehudi Menuhin, to name just a few”.

We will have to see if the Supreme Court now takes the case. If so, that’ll be more pre-1972 copyright wrangling for us all to enjoy in 2017. Good times.