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.