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Labels seek to clarify Californian law on pre-1972 recordings with jury instruction

By | Published on Monday 10 February 2014

Sirius XM

Ah, American copyright law, what a complicated mess you are. It’s almost as if the lawyers who helped draft the rules wanted a system full of ambiguity and confusion to ensure they stayed in business forever, but that can’t be it.

Anyway, that 1972 thing. Regular viewers might remember that there has been much debate of late in American copyright clubs – which is how the cool kids spend their free time Stateside – as to whether protection provided to sound recording copyrights by federal statute should apply to recordings made pre-1972, which are, in actual fact, protected by state rather than federal law.

The record industry reckons that it should. Well, it does when it suits it. As previously reported, this has all come to a head because of the channels dedicated to music from the 1950s and 1960s on the Sirius XM satellite radio network in the US.

Satellite radio, unlike terrestrial radio in America, is obliged to pay royalties to the record companies when it plays their recordings because federal law says it has to, albeit via the statute controlled SoundExchange collective licensing system. But, says satellite broadcaster Sirius, that doesn’t apply to the pre-1972 state law protected catalogue, so screw you record labels and watch us play all this rock n roll nonsense on a freebie.

But the record industry is not impressed, and has launched legal proceedings, as has the aforementioned SoundExchange and American songwriters Flo & Eddie. Litigation is now underway in a few states, though most attention has focused on legal action in California. And it is there that the labels made a further filing last week, proposing that an interpretation of the law, that would very much favour their case, be read to jurors should the legal battle get to the courtroom later this year.

The proposed jury instruction, seen in legal papers posted to Scribd, reads: “The owner of a sound recording ‘fixed’ (ie recorded) prior to February 15 1972 possesses a property interest and exclusive ownership rights in that sound recording. This property interest and the ownership rights under California law include the exclusive right to publicly perform, or authorise others to publicly perform, the sound recording by means of digital transmission – whether by satellite transmission, over the internet, through mobile smartphone applications, or otherwise”.

The Sirius legal team is sure to argue that nothing so certain can be said about Californian copyright law at this time. Though it may well be true in Tennessee pretty soon, because legislation has been put forward there to clarify the situation on pre-1972 recordings which would mean that Sirius and online services like Pandora would be obliged to pay royalties in that state at least.

Of course, if the record industry does gets its way on this, whether through litigation or lobbying, the question will then be posed, well what about the ‘safe harbour’ clauses in the federal Digital Millennium Copyright Act? The labels are keen for that bit of federal law not to be applied to state-based copyrights, because it’s a technicality they’re using to try to gazump controversial streaming service Grooveshark.

So, more fun times ahead then.