EMI: There Should Be No Safe Harbors For Pre-1972 Songs

from the because-that's-how-we-shake-down-service-providers dept

Ah, desperation on the part of a major record label is so sad. Following the judge’s ruling in the MP3tunes case, which protected the basic concepts of DMCA safe harbors for music lockers, EMI is now asking the judge to reconsider two key points in the ruling. The first is whether or not the DMCA applies to pre-1972 recordings. As we’ve discussed in the past, sound recordings from before 1972 are not covered under federal copyright law, but a variety of (dreadful) state copyright laws. This is, depending on how you look at things, either an accident of history, or an accurate recognition by Congress in 1909 that the Constitution does not allow Congress to let copyright cover sound recordings.

Either way, the RIAA and its labels love the fact that pre-1972 recordings don’t fall under federal copyright law, because it keeps songs out of the public domain for much longer — since the mass of state laws are even more ridiculous in many ways.

One of the issues in the MP3Tunes case was whether or not the pre-1972 recordings were subject to DMCA safe harbor protection, and the court — quite reasonably — ruled that they were, pointing to the plain language of the law. EMI is really upset about this and insisting that there should be no safe harbors. This lays bare the RIAA’s other cynical ploy in its bag of tricks. If there are no safe harbors for pre-1972 recordings, then that would mean that the labels could go after all sorts of service providers demanding cash for actions of their users. Someone uploaded a Beatles tune to YouTube? Well, according to the RIAA/EMI’s argument, YouTube should be liable.

Yeah, they’re getting desperate, when their remaining playing cards include figuring out ways to shake down third parties rather than improve their business model.

EMI separately argues that the court was mistaken in believing that MP3Tunes effectively disabled accounts of repeat infringers. On this point, it suggests that the court was either misled or misunderstood what MP3Tunes had done in terms of disabling accounts. The basic argument is that MP3Tunes insisted for a while that it did not terminate accounts for infringement, but then later claimed that it did — and the court just accepted the latter argument. Here, EMI’s basic claims do read much stronger, and MP3Tunes will certainly have to explain the discrepancy in statements from company employees. Either way, as expected, this case is far from over.

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Companies: emi, mp3tunes

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Comments on “EMI: There Should Be No Safe Harbors For Pre-1972 Songs”

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Re: Re: False Strawman.

Stuff published in 1972 are older than the original 14 year copyright term with an extension. If you did nothing more than remove retro-active copyright extensions, all of the old stuff would be public domain.

No mass abolishment of copyright is required.

Just apply the law as it was when the works were created.

Chilly8 says:

Re: Um..

If they decide that DMCA does not cover pre-1972 recordings, period. That would affect a lot of online radio. At my online station, we play anything that charted in the Hot 100 from 1950 onwards. If the courts rule that pre-1972 songs are not DMCA-covered, we would have to cease playing anything in our library, pre-1972, and that would shut down our Christmas music, because much nearly all of it is pre-1972, and would not be covered under statutory licensing.

The RIAA and SoundExchange are shooting themselves in the foot. If oldies stations are forced to shut down, SX and RIAA will loose a lot of revenues.

Some popular online 50s and 60s oldies stations, such as Radio Bop or KYAF, would have to cease operations.

Nick Taylor says:

So that’s the same EMI that’s owned by Citigroup?

The same business that took 2.5 trillion in secret bailouts http://www.modelmayhem.com/po.php?thread_id=775060 and who (with their friends) drove the entire economy over a cliff?

Last time I looked, poverty-related deaths in the US stood at about 850,000 a year. This was before the banks crashed the economy. The consequences of the profligacy of major corporations is becoming genocidal.

So now they own EMI and are trying to create fake scarcities to extract monopoly rents from the general population.

We should start to see these people for what they are. And react accordingly.

Anonymous Coward says:


is basically that old racist grandpa you have. He still lives in 1959, embarrasses you in public or makes everyone laugh when he’s “serious”, and yells at kids to get of his lawn.

EMI and the rest of the old middlemen are just that, extremely senile and cranky old people. We only tolerate them because they provide amusement from time to time when they forget their meds.

DandonTRJ (profile) says:

While I hate to say it, EMI has a point. How can the DMCA [federal law] apply to sound recordings protected exclusively by state law? Section 301 does indeed state that no rights or remedies under state law protection for pre-1972 sound recordings can be limited by federal law, and the DMCA limits those rights by excusing through safe harbors what would otherwise be infringement.

Don’t get me wrong, from a pragmatic policy standpoint, it makes no sense to distinguish between pre-1972 recordings and post-1972 recordings, and would honestly undermine the entire point of the DMCA, but from a strict statutory point [and under basic principles of federalism], I’m not sure how to route around EMI’s argument. And that frustrates me greatly, because they’re willing to break one of the best [arguably only] good parts of the DMCA just to put a few more bucks in their pocket. But I really hope the court figures out a way to justify the judge’s prior ruling.

Anonymous Coward says:

They’re getting desperate? What about you?

If it was a pirate site tap dancing around the law in this manner, you would be singing their praises as brave freedom fighters. But because it is rights owners doing it, it is desperation.

Trying not to whine so much Mike, it makes you look bad.

DandonTRJ: It isn’t about putting “a few more bucks in their pocket”, It’s about stopping a ton more dollars slipping out of the pocket. They are only protecting what is rightfully theirs. If DMCA is unable to control file locker sites in a meaningful way, they have to look at other alternatives to achieve the same results.

Anonymous Coward says:

Re: Re:

So you agree then that they are ‘tap dancing around the law’ to put ‘a ton more dollars’ in their pocket?

How about this, if file locker sites are legal according to the DMCA Big Content should move on with their lives and maybe try to get in on a perfectly legal business model instead of attacking innovation through litigation and legislation?

Anonymous Coward says:

Re: Re: Re:

File lockers aren’t “perfectly legal according to the DMCA”, rather the methods of DMCA give file lockers an incredible legal advantage. The rights holder has to magically be able to see the content of every file to know if their stuff is being infringed, yet the site operator (who can actually see what is uploaded) bears no burden at all.

DMCA by it’s nature encourages violation, because it creates a set of circumstances that allows companies and individuals to operate without concern, and when caught, throw up their hands and go “I didn’t know” and take down the single piece pointed at.

It creates business models that are predicated on copyright infringement. That is why the (ignored by Techdirt) ruling on the Hotfile case the other day was significant and important, as it may lead to a breakdown of the safe harbors for this type of business. Mike doesn’t want to talk about that, he would rather run some more of Nina’s grade school quality cartoons.

PaulT (profile) says:

Re: Re: Re: Re:

“The rights holder has to magically be able to see the content of every file to know if their stuff is being infringed”

I hope they pay you enough to keep pushing your idiocy. I’m yet to see any post from you where you can even be considered to have a real point, let along an insightful point.

Anyway, your opinion seem to be that the file lockers themselves not only have to see the contents of every file, but also magically know whether they’re infringing or not. You think that the burden on copyright holders is too great, but have no problem assigning several times the burden on file lockers. See the logical fallacy?

“It creates business models that are predicated on copyright infringement.”

You keep repeating this, but fail to consider the vast uses for said services that are non-infringing. You failure to even consider this makes your point irrelevant.

Chosen Reject (profile) says:

Re: Re: Re: Re:

Yes, content owners need to see every file to know if it’s infringing, because file names are not enough, and nor is general knowledge that something is infringing (even if it’s a lot of somethings, nor even if it’s a majority of somethings).

File lockers can see the files, but they don’t know whether the content is authorized or not (see the Viacom v YouTube case where Viacom went out of its way to make it look like they were uploading unauthorized content), not to mention whether or not the content falls under fair use.

Anonymous Coward says:

Re: Re: Re:2 Re:

I am trying to imagine the fair use of “hollywood_movie_DVD_Rip_XVID”. I can’t come up with one. Can you help?

It think that your answer is a series of excuses. There are exceptional cases of fair use, and exceptional cases of permitted use. It is entirely disingenuous to even suggest that most of what is on a file locker typically isn’t infringing. This is even more true for the “pay per download” lockers, for whom the business model hinges on getting the most downloads possible, which encourages people to put up files that are popular. Putting up something that is freely available in many other locations would be self-defeating.

If the “majority of something” are infringing, and the business model thus hinged on illegal content, don’t you think it is something that needs to be addressed? This isn’t “oops, there is an illegal file”, it’s more like “damn, a legal file… how did that get on there?”

It’s the reason why the recent Hotfile ruling is so significant, and it is also the reason Mike chose to ignore it. That case may end up being the poster child of while safe harbour protections of hosting companies gets narrowed down in the future, and may be how a whole class of business models end up being considered illegal. Mike chose to ignore it, and as a result many of the sheeple here are ignorant of it and it’s implications.

PaulT (profile) says:

Re: Re: Re:3 Re:

“I am trying to imagine the fair use of “hollywood_movie_DVD_Rip_XVID”. I can’t come up with one. Can you help?”

I don’t know. Who uploaded it? If the copyright owner authorised the upload, it’s not infringing.

“It is entirely disingenuous to even suggest that most of what is on a file locker typically isn’t infringing”

I’m intrigued. Are you basing this on actual facts or does it just “sound right” to you? I’d like to have a look at those figures if you have them, should be interesting reading. If you don’t have them, you’re just spouting yet more idiocy, your M.O. is to make wild claims and never back them up, after all.

“It’s the reason why the recent Hotfile ruling is so significant, and it is also the reason Mike chose to ignore it”

The reasons have been explained to you several times, clearly and concisely. It’s no surprise you can’t get this nugget of information through your skull, though. After all, even an imagined “victory” is better in your eyes than any of those pesky “facts” or the actual opinions of those you constantly attack.

Anonymous Coward says:

Re: Re: Re:3 Re:

“I am trying to imagine the fair use of “hollywood_movie_DVD_Rip_XVID”. I can’t come up with one. Can you help?”


What are the actual contents of the file? A filename is meaningless.

What if the name was CutePuppyVideo.avi?
What if the files are in compressed archive?
What if that archive has a password?
What if the file is split into multiple pieces that require use of another program to join them back together?

Hephaestus (profile) says:

Re: Re: Re: Re:

“yet the site operator (who can actually see what is uploaded) bears no burden at all.”

In various countries around the world, taking a look would allow for criminal charges to be filed against the person peeking.

Also, once you open the door to monitoring you will see mission creep. The path you and yours are following will lead to your email, files, etc being monitored also.

A Guy (profile) says:

In Someone elses words

I ran across this on Google. It looks aimed at the copyright termination act but parts seem to apply to this conversation too:

11 Reasons a Federal Copyright does exist in Pre-1972 Sound Recordings.
Back in 1925 Congress had intended to create Federal Copyright protection, and just finally got around to it in 1972.

2) Federal Law Supercedes State Law
IF State copyright laws were meant to be their protection, then why bother passing the Federal protection..

3) Pre-1972 Labels and Music holders have been collecting for 14 years now from Soundexchange as FEDERAL Copyright Holders.

4) The Effective Date on the Law is not determinative of when it begins.

5) Determining that Pre-1972 artists did not have a Federal Copyright law would be Discriminatory…

6) Federal Copyright protection has been claimed for pre-1972 label owners in LOTS of sampling cases…

7) Federalism…
Since Marbury vs. Madison… Federal law trumps state law…

10) If the CD registrations were just derivatives under the State Copyright.. then when they were registered with the Federal Government and given a FEDERAL Copyright registration number…

11) The Fixed Medium of a 78, 33, 45, 8-track are precisely what is required to establish a Federal Copyright… and that is clearly what is required under the Constitution and subsequent acts creating and defining Federal copyrights… And those rights are enforced repeatedly in Federal Courts… as others are excluded from creating competing or similar works … To the exclusion of others the labels have exercised their Federal Copyright in Federal courts, in numerous cases.

In conclusion,
It is basically just intellectually dishonest to even argue that their isn’t a Pre-1972 Federal Copyright.
Why does the white Don Henley and the Eagles deserve to get back the rights to their Masters under a Federal Law, but the poor black doo-wop group doesn’t? Is that really an equal application of our Federal Laws…
and flies in the face of what was clearly intended.
The greed of a select few corporations and special interests will invariably try and contort this issue and attempt to create a smokescreen economic argument to protect their interests. However, it is a real no-brainer to see that putting these copyrights back into the hands of he artists would have the greater positive impact on a larger number of people and help the struggling U.S. and World economies.

I can back them up with formal Caselaw, Legislative History, and Public Policy arguments in a formal mem/brief…if so requested.
But I think this reasoning is pretty strong.
thanks again for your time and consideration on this issue.
Joel Kellum, Esq.


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