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US Supreme Court refuses to hear record industry’s pre-1972 safe harbour case

By | Published on Tuesday 28 March 2017


The US Supreme Court has declined to hear a final appeal in Capitol Records’ legal battle with video-sharing site Vimeo, a case that centred on another dimension of the always fun pre-1972 technicality: do those pesky safe harbours apply to golden oldies?

As previously reported, US-wide federal copyright law only protects sound recordings released since 1972, with older tracks protected by state-level law. The safe harbours that have proven so controversial in recent years within the music community – which say that net firms aren’t liable when their customers use their servers to infringe copyright – come from federal law.

As a result, the record industry has argued that safe harbour protection shouldn’t apply if users of a safe harbour dwelling company upload and share recordings that pre-date 1972, providing a handy technicality enabling the labels to sue such companies.

Although that viewpoint has always had plenty of critics – who point out that restricting the safe harbour to only post-1972 recordings would make the protection unworkable – when then EMI label Capitol sued safe harbour dwelling Vimeo for copyright infringement in 2009, the judge hearing the case said the video site was liable where pre-1972 recordings had been uploaded to its platform without licence.

On appeal, judges in the Second Circuit court last year ruled against that judgement, stating that exempting older recordings from the safe harbour principle would “defeat the very purpose Congress sought to achieve in passing [it]”. The appeals court then refused to reconsider the case in August, resulting in the record industry taking the matter to the US Supreme Court last December.

The Supreme Court has now declined to hear the case, meaning the Second Circuit judgement stands. Though on the upside, the music community could now argue that if the federal safe harbour applies to pre-1972 recordings, perhaps the federal ‘digital performing right’ that says that American online radio services (unlike American AM/FM radio stations) must pay royalties to artists and labels should also apply to golden oldies. That way, said artists and labels wouldn’t have to try and persuade courts at a state level that such royalties are due under each state’s copyright laws.