Labels Use Questionable Ruling On Pre-1972 Recordings To Sue United Airlines For Streaming In Flight Music
from the DMCA-goes-from-bad-to-worse dept
The court ruling earlier this year that found in favor of Universal Music Group against Grooveshark hinged on an argument made by the plaintiff that the DMCA (and its safe harbors) doesn’t apply to pre-1972 recordings, thanks to some clumsy wording within the law itself. While that may not have been the intent of the law, the wording of the law can be interpreted that way — an argument the court felt was persuasive enough to rule in favor of UMG. Other courts haven’t been so sure, but the possibility that the DMCA doesn’t apply has resulted in a lot of concerns… and a whole bunch of lawsuits.
As it stands now, post-1972 recordings are clearly covered by federal law (and DMCA safe harbors apply). Pre-1972 recordings are subject to a variety of state laws and, according to the New York court’s ruling, are not subject to the DMCA or its safe harbors. The attorney who represented UMG for its appeal, Andrew Bart of New York’s Jenner & Block (one of the RIAA’s favorite law firms), is also listed as the attorney for the four record labels who are now suing United Airlines for its making pre-1972 recordings available to stream on demand on its flights.
Arista, Sony, Zomba and LaFace Records sued United Airlines, InFlight Productions and RightsCom, in Federal Court. InFlight and RightsCom are both based in London.
The record labels claim the defendants work “in concert” to load copyrighted music onto servers that are installed on United airplanes, “where they are used to transmit performances of plaintiffs’ copyrighted sound recordings and music videos to passengers.”
The copyright violations are for music recorded before 1972, the labels say. Thirteen pages attached to the complaint contain more than 600 songs whose copyrights the defendants allegedly violate, by artists including Duke Ellington, Miles Davis, Aretha Franklin, Elvis Presley, Janis Joplin, and Jimi Hendrix.
The list of allegedly infringing tracks is likely pulled from United/InFlight’s own playlists which seem to change periodically. The labels claim “thousands” of violations on songs that cost “millions” to produce and are seeking to collect both statutory and compensatory damages, as well as “unjust profits” and court costs.
It would seem that both Rightscom and InFlight — both being in the licensing business — would have nailed down their end of bargain with these labels several years ago. However, given the fact that a.) the New York court decided the DMCA doesn’t apply to pre-1972 music and b.) a blanket license would very likely not satisfy the various iterations of state copyright laws, the labels now have a potentially lucrative vein to mine.
Notably, there’s no accusation that any recordings post-1972 were infringed. If this was a case where licensing violations occurred or a required license was not in place, we would expect the claims of infringement to cover everything in these labels’ catalogs. The fact that the claim is limited to pre-1972 music only indicates that the labels, with the help of Bart, are seeking to exploit this DMCA ruling before this loophole is closed by a ruling from a higher court or a rewrite by legislators.
Previous to this, the legal activity revolving around pre-1972 recordings has been aimed at site operators whose sites contain user-uploaded infringing content, with labels (UMG, EMI) claiming the DMCA safe harbors don’t apply to these recordings. This new move, directly suing companies who make use of the content themselves, shows there’s more than one problem with the New York County Supreme Court’s decision in favor of UMG back in April.
Filed Under: copyright, music, pre-1972
Companies: arista records, inflight productions, laface, rightscom, sony music, united airlines, zomba
Comments on “Labels Use Questionable Ruling On Pre-1972 Recordings To Sue United Airlines For Streaming In Flight Music”
It is amazing
I find it amazing how any time the copyright maximalists find that anyone can hear music they realize they need to sue someone.
What?! People can hear music on an airplane! Sue!
What?! People can overhear music playing on the radio! Sue!
What?! Diamond Rio makes a tiny, convenient, solid state device that people can legally put their legally acquired music onto? Sue!
And similarly for the MPAA and the VCR and every video innovation that has followed.
Re: It is amazing
I’m just waiting for all other businesses to start adopting the same business model.
Sure we sold you the seats to put in your aircraft/train/restaurant/waiting room, but you have to pay an annual licence for people to actually use them, and that only applies to furniture made after 1972, furniture made before 1972 isn’t covered by legislation.
3rd party furniture sellers might be covered by an equivalent of the DMCA in that they might be protected from unlicensed sitters even if they provide them with the ability to access chairs whether before purchase in the showroom or after purchase in their homes but then again, they mightn’t deserve the safe harbors they seem to think are a right.
Chairs add even more to the atmosphere in many places than music does so shouldn’t chair makers be entitled to earn a living from the use people put their chairs to.
Imagine a plane with no seating but with music and a plane with no music but with seating, which are you going to fly on?
Wonder if the music industry will howl when they have to pay a percentage of royalties to the people who made the microphones and mixing equipment, the instrument makers and the engineers.
Bring it on, let’s have a world made in the image of the music industry.
See who balks first.
Re: Re: It is amazing
I’m just waiting for all other businesses to start adopting the same business model.
I believe other businesses have already started trying to use this. I can’t seem to find it in Google (my googlefu isn’t as strong as I’d like it to be,) but I seem to remember recently a developer got into hot water by putting into a sales contract a deed restriction preventing resale of the home based on a bogus copyright on the design of the home/blueprints. They wanted a cut whenever someone resold the home they built. (All I could find was the Techdirt article from 2010 about resale fee and a 2012 article from WSJ about it being prohibited by Fannie Mae.)
Re: It is amazing
That’s because every once in a while suing actually works, and then they get to collect income basically forever. So why not sue everything under the sun?
Re: Re: It is amazing
Why stop there? Sue the sun as well!
Re: Re: Re: It is amazing
I’m sure it has been tried.
Re: Re: Re: It is amazing
Even aliens can’t escape from copyright enforcement: http://www.amazon.com/Year-Zero-Novel-Rob-Reid/dp/0345534514
Re: Re: It is amazing
“That’s because every once in a while suing actually works, and then they get to collect income basically forever. So why not sue everything under the sun?”
Because history shows that something else actually works on a regular basis – adapting to the new technology and changing business models to the new reality. It’s pretty clear at this point that the “sue everything” approach has failed.
Imagine how much better off the industry would be now if they had got on at the ground floor with this stuff rather than pissing away money on lawsuits (most of the people successfully sued can’t actually pay the amounts demanded)!
Re: Re: Re: It is amazing
That’s not the path a lawyer would recommend, and obviously the companies are being run by lawyers.
Re: It is amazing
The music industry in a nutshell: sell the public a product and then outlaw its use.
There is a simple way to resolve this...
Declare the copyrights on all pre-1972 recordings expired. Easy. The issue of whether they are covered or not by the DMCA is then moot. Next issue please.
Re: There is a simple way to resolve this...
Declare the copyrights on all pre-1972 recordings expired.
Was going to say the same myself. If you haven’t been able to recoup your costs of production after 40 years, you’re doing it wrong. Any copyright that is over 40 years old serves to make corporations of a few well known works rich off of the destruction of all other lesser known copyrights. Since most works disappear into obscurity far shorter than 40 years, and disappear entirely to customers (because the company that owns the copyright no longer wishes to spend the money to produce the work,) it would be better to restore copyright to its 17 year plus extension lifetime than the ridiculous life+70 model which only serves to make a few companies richer than to make the public, which gets shafted, richer.
Re: Re: There is a simple way to resolve this...
Wait, I think we can solve this right here.
Copyright expires when the profits dry up.
Setting copyright to expire after a number of years or months or minutes relies on the assumption that all content has the same lifespan. However, we know a corporation like Disney continues to profit massively from its back catalog of intellectual property. Meanwhile, the next viral music video sensation is a flash in the pan in terms of continuing profitability. And relevance.
Today’s copyright terms are too long and much content is irrelevant and forgotten long before the copyright terms have expired. Worse, media that is massively relevant but not profitable is locked up in copyrights and not available. For example, film from the civil rights era. That has long lasting cultural significance and yet much of it is rotting in vaults racing against time for the copyright to expire before the film becomes unusable. But its profitability is very limited, pretty much done after the news reports aired. Copyright terms based on profit would place this material in the public domain, available for documentarians to explore now instead losing our history and picking through the degraded scraps of cellulose decades from now.
An added benefit is that this scheme would end the media companies’ messed up accounting practices. If the copyright term is contingent on continued profitability, they have to show profit to renew the copyright. One more bonus, it’s taxable now. If they continue their standard practice of cooking the books to avoid showing taxable profits then their copyright expires and their box office smash hit is now public domain.
So that’s my modest proposal. Tie copyright terms not to the calendar but to their accounting.
Re: Re: Re: There is a simple way to resolve this...
“Wait, I think we can solve this right here.
Copyright expires when the profits dry up.”
Nope. Ever hear of Hollywood accounting, where even the most successful movies of all time can be made to appear to have made massive losses to avoid taxes and royalty payments? They’ll just do this in reverse – every song they can come close to claiming rights on will suddenly be selling as many copies per year required to count as profit making and nothing will enter the public domain, ever.
Re: Re: Re:2 There is a simple way to resolve this...
Hmm, might be worth it if it was made retroactive, as suddenly dozens of ‘profitless’ movies like Star Wars entered the public domain overnight.
‘Hey, you’ve been saying for years that the movie has yet to recoup the costs of creating it, and that’s why you were never able to pay the actors their cuts, we’re just taking the obviously bad movie off your hands, to allow you to focus on more profitable ventures.’
And then of course you’d have the fun bit where suddenly they’d have to decide between paying taxes on a ‘useless’ IP, to avoid it entering the public domain, or letting it lapse.
Humor aside, I do agree with you though, tying copyright length to profitability would be a bad idea, for just that reason, and it would hurt the smaller people much more than the larger companies, which is not the way you help your average creator.
Re: There is a simple way to resolve this...
@ AC: Declare the copyrights on all pre-1972 recordings expired. Easy. The issue of whether they are covered or not by the DMCA is then moot.
Only if the use of such public domain were prohibited to corporations, as also prohibit anyone making profit from the reproduction or it aiding business profit (as entertainment in various venues). The public domain is for the public (that we now must call “natural” persons), NOT corporations.
SO the notion is basically a non-starter with me. Why let any corporation — an airline here — which didn’t in any way previously pay for the content (while we “natural” persons did) profit from what we own? That’s not the intent of public domain. An airline can cough up a few bucks, especially when a tiny amount compared to their optional expenses such as executive perks. Corporations get enough advantages by using public property already.
Re: Re: There is a simple way to resolve this...
Only if the use of such public domain were prohibited to corporations
You?you don?t really get what the term ?public domain? means, do you?
Re: Re: Re: There is a simple way to resolve this...
He’s just making up his own rules at this point.
Re: Re: Re: There is a simple way to resolve this...
There’s a lot that he just doesn’t get. Does the term “short bus” ring a bell?
Re: Re: There is a simple way to resolve this...
The public domain is for the public (that we now must call “natural” persons), NOT corporations. … Why let any corporation — an airline here — which didn’t in any way previously pay for the content (while we “natural” persons did) profit from what we own?
The problem with that, however, is that what you’re really saying is that the copyright holders should be able to continue to asset their copyrights against artificial persons, in this case, the airline. So ‘we’ wouldn’t own it, ‘we’ wouldn’t get paid, and ‘we’ wouldn’t even have input as to whether or not to grant a license under any terms, much less as to what the terms would be. (Save through statutory licensing, which is a lot harder)
For a work to actually be in the public domain, it means that no one can restrict its use on the basis of copyright. Even corporate entities can use it.
Now, if you’d like to suggest that copyright should not be able to restrict the otherwise infringing use of works by natural persons during the copyright term, then we might have something interesting to talk about. (In fact, even I would consider that to be a little too radical!)
Re: Re: Re: There is a simple way to resolve this...
ootb’s belief is that the creator owns and controls the work and all copies forever – what he constantly refers to as “common law” – since it has no basis in actual law. He gives absolutely no validity to public domain or fair use.
It’s pointless to try and argue with his viewpoint.
Re: Re: Re:2 There is a simple way to resolve this...
He also apparently believes that because many corporations do evil things simply because it is in their best interest without regard for the affect it will have on anyone else, ALL corporations are inherently evil and the bigger they are the more evil they must be.
Re: Re: Re:2 There is a simple way to resolve this...
what he constantly refers to as “common law” – since it has no basis in actual law
In common law countries, like the US, the common law is actual law, at least to the extent that it hasn’t been replaced with statutory law. Much of our law of contracts and torts is common law, for example. But he is wrong about what he usually says about the common law, that much I’ll grant you.
Re: Re: Re:3 There is a simple way to resolve this...
S/he is wrong when it comes to copyright and common law – copyright’s origins lie in an Act of Parliament, which is statute law, not common law. Common laws are laws made by rulings in cases by a judge.
Re: Re: Re:4 There is a simple way to resolve this...
Yes, I know. However, state courts nevertheless went ahead and created systems of common law copyrights regardless. Frankly, it’s done nothing beneficial. Congress really ought to assert its copyright clause and commerce clause powers to abolish whatever parts of the common law of copyrights that remains, and allow for some eligible common law copyrights to transition into proper federal statutory copyrights (assuming that the federal policy finds any of them worth protecting).
Re: Re: Re:5 There is a simple way to resolve this...
However, state courts nevertheless went ahead and created systems of common law copyrights regardless.
Actually, even at the state level, copyright isn’t based on common law. State copyright laws were not created by the courts, but by state legislators, and are based solely on state statutes.
Re: Re: Re:3 There is a simple way to resolve this...
In common law countries, like the US, the common law is actual law
This is true, insofar as you mean civil law (criminal law must be based upon statutes).
But, I don’t think OOTB knows what the hell “common law” actually means. It means law that is either recognized or created by the judiciary (depending upon who you ask), not the legislature, and is based upon prevailing social ethics, and basic principles of equity.
As I’ve explained to him before, Copyright is not, and was never, common law in the U.S. (Nor anywhere else in the world, to my knowledge.) It is wholly and completely a product of legislative statutes – both at the state and Federal level. On the Federal level, copyright arises solely from the Congressional power to “promote the progress of science.”
You know what is based on common-law notions of equity? Fair use. Before the fair use doctrine was enshrined in the 1976 statutes, the courts long recognized that the rights of copyright holders could not be absolute:
Yes, that’s right. The people who OOTB called “hacks who steal all they can get away with” actually have a common-law right to their actions, and copyright holders do not.
OOTB isn’t just wrong, he is the exact opposite of right.
Re: Re: Re: There is a simple way to resolve this...
Can we just get Comrade “The Rich must be made to pay” Blueski to stop pretending that copyright is about paying the artists who made the music? The monies from copyright rents to to the RIAA and other collection agencies FIRST, then to the record companies. The artist gets a cut of whatever is left if they’re not on a work for hire contract.
See http://www.teachingcopyright.org/handout/copyright-faq for details.
Recording companies GENERALLY own the copyright, okay? So the artist doesn’t, okay? So the artist gets nothing, okay? Unless there is a specific agreement to that effect. Got it?
Probably not. As usual.
Re: Re: Re:2 There is a simple way to resolve this...
He would simply argue it’s the artist’s right to sell their copyright to a corporation, which is true.
Re: Re: There is a simple way to resolve this...
Only if the use of such public domain were prohibited to corporations, as also prohibit anyone making profit from the reproduction or it aiding business profit (as entertainment in various venues). The public domain is for the public (that we now must call “natural” persons), NOT corporations.
That notion is pure, 100%, bona fide stupid. The works of Shakespeare and other greats would have vanished by now if publishers were not allowed to profit from reprinting them for the last 400 years or so.
The part of the concept behind the public domain is that past works and culture can be preserved by allowing them to be reproduced.
Re: Re: Re: There is a simple way to resolve this...
Gah. That last sentence makes little sense. The “The” at the beginning is a typo. Should read:
Part of the concept behind the public domain is that past works and culture can be preserved by allowing them to be reproduced.
Extreme Measures
Broadcasters need to take extreme measures on this.
I can only wonder what the RIAA would say if the streaming services, satellite radio, establishments, and airlines COMPLETELY STOPPED playing any pre 1972 music.
They need to act like the music no longer exists and they need to stick to their guns.
Then we’ll see how long it takes for the RIAA to start complaining about pre 1972 music being abandoned.
In my mind, the effort would be worth it. The recording industry needs to learn its place in the world. I can live with not hearing another pre-1972 tune ever again. I don’t care if its out of spite or not. The recording industry earned the spite fair and square.
Re: Extreme Measures
Concur. Besides, I already own the pre-1972 music I love, on a format they can’t expire, my music CDs.
And this is why physical media isn’t as outdated a notion as many think.
Re: Re: Extreme Measures
“Besides, I already own the pre-1972 music I love, on a format they can’t expire, my music CDs. “
Incorrect. I own several CDs and DVDs that have “expired” due to pressing flaws causing deterioration of the layers which renders them unplayable. There’s nothing ike the feeling of digging up an old CD only to see a brown sludge where the shiny surface should be. However, the MP3s I’ve ripped of those CDs are still perfectly usable.
Each media format has its value, but physical media is definitely destructible and not immortal.
Re: Re: Re: Extreme Measures
I have CDs going back to the 1980s, and this has never happened to any of them.
Re: Re: Re:2 Extreme Measures
It’s happened to 3 of my CDs and 2 of my DVDs (both from collections of many hundreds). I’m sure it’s pretty rare, but I can account for the fact it happens.
http://en.wikipedia.org/wiki/CD_rot
Re: Re: Re:2 Extreme Measures
It’s rare, but it does happen.
Re: Extreme Measures
They not only need to stop playing it but leave in the options and when the song is selected inform the listener that it is unavailable due to copyright laws that last for the life of the creator plus 70 years.
Re: Re: Extreme Measures
Excellent idea, the *AA’s are always claiming the problem is people aren’t ‘educated’ with regards to the copyright system, let’s see how they like it when people are educated as to how the system really ‘works’.
Screw it, cease all label assets, including the off shore accounts, so their funds are gone. Cripple their ability to utilize lawyers.
Then start the exhaustive collection of all hidden data that counters every lobbied argument they made and use that in the mass class-action lawsuits. Then destroy their bought-irrelevant laws and use the money ceased/won to start over.
Enact new laws to prevent purchasing of laws. Enact new laws to prevent corporate exploitation.
Do this only to the entertainment industry… at first… the others should start to fall into line pretty damn quick.
The fact that the claim is limited to pre-1972 music only indicates that the labels, with the help of Bart, are seeking to exploit this DMCA ruling before this loophole is closed by a ruling from a higher court or a rewrite by legislators.
The DMCA is 15 years old. Doesn’t look like there’s much of a rush to close this “loophole” or rewrite the DMCA. In fact there’s no appetite to re=open the DMCA by anyone in Washington.
Re: Re:
The loophole was only brought to the forefront by the supreme court ruling a few months ago..
I was in law school back in the late 90s and the proposed DMCA and the bill that eventually passed was a huge topic of discussion. No one discussed the idea that Pre-1972 music was not covered by the DMCA. In fact, it would have been ludicrous not to include such music because the entire purpose of the DMCA was to give immunity to various internet companies.
Now about 15 years later, without any legislative support and in complete contradiction of the purpose of the DMCA, the RIAA is arguing that the DMCA does not apply to pre-1972 music. And a court bought it!?
I realize judges don’t like making law and if there’s an ambiguity in a statute, the legislative body can correct it. However, in the real world we’ve relied on the fact that the pre-1972 recordings were included in the DMCA. To pull those out now, is simply asinine.
I don’t know if you can tell, but I’m kinda pissed about this.
Respect
Then the MPAA/RIAA wonder why the general public hates them and ignores their pleas to conform to their business model. If you continually show that you will perverse the law and exploit loopholes that the general public will have no respect for you. If people have no respect for your company, the public will also not feel bad if they wrong your company (i.e. Pirate music/movies)
Now that I think about it...
It should be easy to dispatch all those copyrights on pre-1972 recordings since they are based on state copyright laws. First, isn’t Congress the only one that can grant a copyright in the first place. Also the minute the license that is purchased for said material goes across state lines it immediately becomes interstate commerce where a state law is unconstitutional. If the airline is located in another state than the copyright holder, state laws do not apply. Done. State based copyright laws don’t matter and never mattered as they aren’t enforceable across state lines.
Re: Now that I think about it...
In a word: No.
Here’s some reading for you. ???? (Link via Techdirt).
THAT is the single most important concept that any artist should be sure they understand! Imagine if creators were still alive? Imagine after seeing your local school perform some Beethoven you could go and watch Ludwig himself play?
Would that not bring Ludwig to the masses and draw more attention to his creative works? Oh right, certain groups think “why would they pay when they can see a school play it for free”. If that were true, iTunes would have been dead ages ago!
What does the DMCA have to do with this
While I haven’t read the complaint, from the description of the lawsuit I see nothing that indicates that even if the DMCA safe harbours were applicable to pre-1972 sound recodings, they would be applicable here. United Airlines doesn’t appear to be acting as a service provider under the DMCA when it makes music available on its flights. There are 4 specific kinds of service providers covered by the safe harbours, and all of them involve Internet services. It’s hard to see how an airline’s performance of music for its passengers would qualify.