Recording Industry Wants To Have It Both Ways When It Comes To Pre-1972 Recordings

from the are-they-the-same-or-different? dept

Yet another story of hypocrisy by the recording industry? Why yes, indeed. For years now, we’ve been covering the issue of pre-1972 sound recordings. When Congress wrote the 1909 Copyright Act, it did not cover sound recordings, because Congress didn’t think that sound recordings qualified for copyright. In a statement released by Congress with the Act, it said it deliberately chose not to cover sound recordings, believing that they weren’t covered by the Constitutional limitation on “writings” for copyright protection:

Indeed, the report released with the Copyright Act expressly stated that Congress did not intend to protect sound recordings: “It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices.” According to one commentator, Congress had two principal concerns about sound recordings, leading it to decline to protect them. First, Congress wondered about the constitutional validity of such protection. The Constitution allows Congress to protect “writings,” and Congress was uncertain as to whether a sound recording could constitute a writing. Second, Congress worried that allowing producers to exclusively control both the musical notation and the sound recording could lead to the creation of a music monopoly.

That latter concern certainly was prescient. When Congress did a massive overhaul of copyright law in 1976, the recording industry was a much more powerful lobby, and so sound recordings were included. However, in the years between 1909 and 1976, many states had created their own (often bizarre) “state” copyrights to protect recordings. Rather than deal with this in an intelligent way, Congress basically said the new federal copyright rules would only apply to songs recorded in 1972 or after, and pre-1972 recordings would remain in a bizarre limbo. This has created a whole host of legal issues, and the Copyright Office has been trying to figure out what to do about this for years.

However, it appears that the recording industry would like it both ways. When it’s to their advantage, they claim that pre-1972 recordings should be treated just like modern song recordings. And when it’s not to their advantage, they insist that pre-1972 recordings should be treated wholly differently. In various hearings about the issue, the RIAA has been one of the most vocal in arguing against treating pre-1972 recordings as if they’re covered by federal copyright law. And, at the same time, they’ve argued in court repeatedly that the DMCA safe harbors don’t apply to pre-1972 recordings, making various music storage lockers liable for any such recordings they host. Some courts have rejected this theory, while others have accepted it. Either way, the recording industry has been pretty adamant that pre-1972 recordings should be treated differently, so they can sue whomever they want.

And yet… when various streaming music companies recognize this fact, and note that pre-1972 recordings aren’t covered under statutory licensing regimes… the recording industry freaks out. Michael Huppe, the President of SoundExchange — an organization created by the RIAA — is writing in Billboard magazine about how unfair it is that streaming services like Sirius XM and Pandora don’t pay statutory rates for pre-1972 recordings. Huppe complains that “this is not fair” and notes:

It’s a matter of simple fairness to offer equal treatment for all sound recordings.

Okay. If that’s true, then why aren’t SoundExchange and the RIAA out there in support of federalizing the copyright in pre-1972 recordings? Why aren’t SoundExchange and the RIAA agreeing to the fact that the DMCA’s safe harbors apply equally to pre-1972 recordings? I’m all for “equal treatment for all sound recordings” as well, but someone ought to point out to SoundExchange and the RIAA: you first.

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Companies: pandora, riaa, sirius xm, soundexchange

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Comments on “Recording Industry Wants To Have It Both Ways When It Comes To Pre-1972 Recordings”

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Ninja (profile) says:

So we are talking about songs that are at least 45 years old, right?

Funny they talk about fairness. I don’t see old engineers being paid continuously because structures were made based on their projects. In fact, I have yet to see a dead engineer whose estate still receives money for his/her work. You can replace engineer with any profession.

Professionals usually earn money because they put their work, effort, sweat into it. Constantly.

There’s no reason for a 45+ yr-old song not to be in the Public Domain.

Pragmatic says:

Re: Re:

The argument is, if money is being made from an item after it’s been made available by anyone other than the creator, some of that money ought to go to the creator, otherwise it’s unfair exploitation, etc.

Wait… wouldn’t that also apply to engineers, etc.?

You’re right, there’s no reason for a 45+ yr-old song to not be in the Public Domain, where it belongs. I’m fed up with Prima Donnas wailing for control of their output after it’s become publicly available. The rest of us don’t get to do that.

Anonymous Coward says:

Re: Re: Re:5 Re:

Enough to produce their recordings in a timely manner, plus an additional $25/hr based on their performance time each week.

But here’s the thing – musicians are much more capable of leveraging other revenue streams, such as merchandising and touring. People in other professions, such as engineers, cannot.

David says:

Re: Well, yes and no

Sometimes artists are seriously ahead of their time and their work becomes popular much later.

Now as a sort of bad and good example, J.S.Bach wrote the B?minor mass, arguably his greatest vocal work, near the end of his life. It was utterly unperformable since it used an old Catholic rite no longer in use in Catholic churches, unthinkable in Protestant churches (like his own), and unperformable in secular circumstances. The first full performance was 80?years after his death, when he had been dead longer than he had been alive.

So even the current copyright regime in Europe would not have turned his work into a commodity, so neither he nor his heirs were able to profit.

But why should some arbitrary person or estate he did not even know profit from his work written for the glory of God?

That’s adding another inequity to the case: not only did he himself not profit from his work, but others in a somewhat arbitrary relation to him would profit exclusively.

Even if you talk about working with the impetus of helping your children, life+25 years would be enough to carry them through basic education (even if they are unborn at the time of their fathers’ death), and if they can still not make an income themselves then, that’s their problem and not the problem of society.

Ninja (profile) says:

Re: Re: Well, yes and no

If I die leaving a child in the womb of my girl no amount of work I done before will keep generating money. What will remain is the money I earned during my life. Why should artists be different? That’s too much sense of entitlement.

As for the church guy, too bad. It happens to painters, musicians, directors. Architecture works may be recognized only long after the original creator death and still their state will not receive a penny for the appreciation of such art by arbitrary persons. Worse, arbitrary photographers can and will earn money by taking pictures that are a work on their own and copyrightable. Not to mention there are much, much older works that are just being praised centuries after they were made.

Can you see the issue? Too bad for the church guy. Shit happens. Being remembered throughout History seems good enough in such cases. And if his estate are smart enough they can monetize on the fame alone. As many artists do with their intangible, infinite goods nowadays.

any moose cow word says:

Re: Re: Well, yes and no

If Bach is entitled to a cut of those profits, then why shouldn’t the architect of the cathedral and his heirs be entitled to a cut from both parties? Neither could have profited from Bach’s work if it were not for the architect’s work.

If you agree that the architect’s estate is entitled to a cut as well, then why shouldn’t the masons who built the cathedral and their heirs be entitled to a cut from all the others? None of them could have profited from Bach’s work if it were not for the masons’ work.

If you agree that the masons’ estates are entitled to a cut as well, then why shouldn’t the horsemen who hauled the blocks to the construction of the cathedral and their heirs be entitled to a cut from all the others? None of them could have profited from Bach’s work if it were not for the horseman’s work.

If you agree that the horsemen’s estates are entitled to a cut as well, then why shouldn’t the stableboys who tended to the horses that hauled the blocks to the construction of the cathedral and their heirs be entitled to a cut from all the others? None of them could have profited from Bach’s work if it were not for the stableboys’ work.

Or we could simply recognize the fact that artist are not disembodied heads and hands that lived in a vacuum, that they were just men who relied on many others in the greater society to create their works and that the just compensation to for their contributions is for all to have a part of the work. That’s why we have a public domain, the creators of the original US copyright laws understood this.

Pragmatic says:

Re: Re: Re: Well, yes and no

^This. Thank you.

Artists with a sense of entitlement annoy me because the implication in their arguments is that they alone are responsible for the work and that all of it flows from them. Uh, that’s not true. Without the enabling provided by supporting workers such as sound engineers, many of my favorite musicians would not have sounded the way they did.

In any case, IPR-ing all the things would drive prices even further up. Is that what we want?

PaulT (profile) says:

It’s my opinion that copyright changes should never be applied retroactively. If the argument is that copyright encourages or even enables work to be created in the first place, then clearly the copyright terms in force at the time of creation were sufficient. The work wouldn’t exist to argue over in the first place if the artist required today’s copyright laws to create it.perhaps decades after his death – is just wrong.

This is, of course, not the RIAA’s argument, but they can’t just come out and admit that they want to be able to collect huge sums of money for decades after an artist’s death no matter when the recording took place. They have to play word games to pretend they have the moral high ground.

As ever, “fairness” means “letting corporations make as much as possible” rather than anything that actually benefits a living human being not on the RIAA’s board.

Anonymous Coward says:

Re: Re:

It’s my opinion that copyright changes should never be applied retroactively.?

This is, of course, not the RIAA’s argument?

Neither is it Justice Ginsburg’s argument.

You recall that the court addressed this point in Eldred v Ashcroft (2003). In connection with the Sonny Bono Copyright Term Extension Act (CTEA), Justice Ginsburg wrote:

Congress’ consistent historical practice of applying newly enacted copyright terms to future and existing copyrights reflects a judgment stated concisely by Representative Huntington at the time of the 1831 Act: “[J]ustice, policy, and equity alike forb[id]” that an “author who had sold his [work] a week ago, be placed in a worse situation than the author who should sell his work the day after the passing of [the] act.” 7 Cong. Deb. 424 (1831); accord, Symposium, The Constitutionality of Copyright Term Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) (“[S]ince 1790, it has indeed been Congress’s policy that the author of yesterday’s work should not get a lesser reward than the author of tomorrow’s work just because Congress passed a statute lengthening the term today.”). The CTEA follows this historical practice by keeping the duration provisions of the 1976 Act largely in place and simply adding 20 years to each of them. Guided by text, history, and precedent, we cannot agree with petitioners’ submission that extending the duration of existing copyrights is categorically beyond Congress’ authority under the Copyright Clause.

I do not doubt the sincerity of your opinion on this point, but you must acknowledge that your opinion is impotent.

John Fenderson (profile) says:

Re: Re: Re:

“you must acknowledge that your opinion is impotent.”

…and therefore what? What is the point of saying this? It sounds like your implying that since his opinion is impotent, he shouldn’t bother expressing it.

That’s the sort of thinking that allows tyranny to persist. A single opinion from someone who does not wield power may be impotent. However, in expressing that opinion, others who shre it may join in the chorus. The chorus may saw greater opinion. Eventually, those who wield power must yield to that opinion. It’s happened throughout history and is, in fact, the only reason why some great injustices have been corrected.

In the end, his opinion could be very potent indeed. Perhaps this is what you are wishing to prevent?

Anonymous Coward says:

Re: Re: Re: Re:

Exactly. Look at how SOPA was killed and other back deal negotiations (with industry interests and politicians) have been delayed and stifled due to public backlash.

The public consensus is growing towards fixing IP in the other direction and politicians and IP extremists are terrified. and they should be.

Anonymous Coward says:

Re: Re: Re:

” it has indeed been Congress’s policy that the author of yesterday’s work should not get a lesser reward than the author of tomorrow’s work just because Congress passed a statute lengthening the term today.”

and this is, again, one of the biggest reasons I want IP laws abolished. Because they have been twisted into something other than being about promoting the progress of the sciences and useful arts. They have been twisted into making sure that authors (really, distributors, not authors. The truth is they have been twisted into making sure authors get scammed by distributors) get their fair share of a reward and ensuring fairness to authors.

Authors are not entitled to a reward for their works. They are not entitled to a monopoly privilege. They already got the terms they agreed to and for them to be given a longer term retroactively is not fair to the public who now gets a lessor award for granting the monopoly privilege in the first place and buying the works of those authors under the belief that they will enter the public domain at a specific date. The public has been short changed in that transaction.

So the OP is correct. The argument should be what the constitution requires and retroactive extensions do not promote the constitutional requirements.

Anonymous Coward says:

Re: Re: Re: Re:

Authors ? already got the terms they agreed to?

Justice Ginsburg directly met this point in Eldred, writing in II.B.2. of her opinion:

Closely related to petitioners’ preambular argument, or a variant of it, is their assertion that the Copyright Clause “imbeds a quid pro quo.”?.?.?.

[T]he legislative evolution earlier recalled demonstrates what the bargain entails. Given the consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the “this” offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time.?.?.?.

?.?.?. Accordingly, we reject the proposition that a quid pro quo requirement stops Congress from expanding copyright’s term in a manner that puts existing and future copyrights in parity.

Thus, your tit-for-tat argument was raised, met squarely, and crushed.

Justice Ginsburg’s opinion is that authors reasonably expect the Congress to act as the Congress has always acted.

Anonymous Coward says:

Re: Re: Re:2 Re:

“Thus, your tit-for-tat argument was raised, met squarely, and crushed.”

Hardly. Even if the government has robbed the public in the past through retroactive extensions or other retroactively applied changes and expansions that doesn’t make it right to do it again. The authors already got the agreed upon terms that they negotiated. That they can one sidedly change those terms retroactively in return for nothing is unfair to the public and does little to promote the progress and this is not how contracts work. If I buy a product from a store and I buy a two year warranty for an extra $60 and a few months later the store offered a three year warranty for the same product for the same price I will not reasonably and legally expect an expansion on the warranty that I bought in return for nothing. Likewise the authors should not have expected to make their works in exchange for an extension. Those works were reasonably made under the pretext that they will enter the public domain at the specified date at the time. Who would have guessed that our legal system would have been bought and paid for by distributors. Only in the twisted world of IP extremists and a broken legal system does your logic make any sense.

Anonymous Coward says:

Re: Re: Re:3 Re:

and, honestly, I see it as an insult to the public when these arguments are made from the perspective that these laws are intended to serve the artists. Like we’re stupid and we can’t see through all the nonsense or something.

These laws were obviously lobbied by and passed for the distributors as a result of campaign contributions, revolving door favors, and secretive negotiations where the RIAA/MPAA and other private interests were invited and not the public. Not only are these laws not intended to serve the public interest but they are also not intended to serve the interests of artists. They are only intended to serve the interests of distributors. I also see it as an offense to artists that those lobbying for these laws would use artists as their poster child/excuse to get bad laws passed and I see it as an outrage that they are being passed in the name of protecting the artists (both because they shouldn’t be about the artists but about the public and because they really are about the distributors and not the artists). If you expect any credibility in anything you say you should speak from the perspective that these laws are intended to protect the distributors and stop using the artists as an excuse to advance your personal agenda because that’s the obvious truth. We’re not stupid and when you try to argue as though we don’t know any better you’re insulting our intelligence.

Anonymous Coward says:

Re: Re: Re:3 Re:

If I buy a product from a store?

Shop With Confidence

Price Match Guarantee

We?ll match the price if you buy a qualifying item at Target or CityTarget stores then find the identical item for less in the following week?s Target weekly ad or within seven days at,,,,, or in a competitor?s local printed ad. Price match may be requested prior to your purchase. Simply bring in proof of the current lower price, your original receipt and we?ll match the price at the Guest Service Desk.

Anonymous Coward says:

Re: Re: Re:5 Re:

If this is the best example you can come up with of a one sided retroactively changed contract then you are truly desperate.

and, yes, I do know that contracts can be modified but that modification comes at an agreement by both parties often, perhaps, to accommodate changing conditions that caused the original contract to be either difficult or pointless to fulfill and often the changes aren’t simply favoring one side against the other. In this case the change was simply a gift to the distributors (not the artists) in exchange for nothing.

PaulT (profile) says:

Re: Re: Re:

I’ll stick with my opinion. As I hope that people with similar opinions who have the power to change the system will stick with theirs and stop this crap once and for all.

Unfortunately, as I have no voting rights in the US, I have to watch your corrupt system get bought from the outside, then fight once the same corporations try using it as a precedent to enforce their will on to mine.

It’s a shame that you have judges so corrupted that they consider the rights of corporations over the wishes of long-dead authors whose work is being removed from the public domain – but that in no way invalidates mine or the opinion of others who disagree.

Anonymous Coward says:

Congress worrying about Constitutional authority for an action

It’s nice to see that in Congresses past, the legislators paid enough attention to the Constitution that they not only doubted whether it authorized an action, but explicitly declined to take the suspect action. Modern Congress seems far more likely to gloss over Constitutional ambiguity and assume that an Act is permitted until such time as someone manages to argue otherwise all the way to the Supreme Court.

Anonymous Coward says:

Re: Re: Congress worrying about Constitutional authority for an action

“I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country … corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed. I feel at this moment more anxiety for the safety of my country than ever before, even in the midst of war.”
— Abraham Lincoln, letter to Col. William F. Elkins, Nov 21, 1864. Reference: The Lincoln Encyclopedia, Archer H. Shaw (Macmillan, 1950, NY). (3)

zip says:

I would assume that in 1909 there was no easy way to make an audibly-acceptable unauthorized copy of a sound recording with the technology of that day; singing point-blank into a bullhorn with a nail on the end carving a jagged line onto a rotating wax cylinder. It was a novelty like the wind-up music box, whose “ping-ding-ping” notes I don’t think were ever copyrighted.

I always assumed that the 1923 cutoff for public domain was chosen because that was about the time that the record industry switched from the tin-can-on-a-string sounding mechanical recording to the far superior electronic recording.

jupiterkansas (profile) says:

Re: Re:

The 1923 date has nothing to do with the quality of sound recordings and everything to do with the founding of Warner Brothers (1923), MGM (1924), and Disney (1923).

The 1976 law was all about protecting the output of the major movie studios, and unfortunately every other form of creative expression from a photograph to a poem to a sound recording got lumped in with them, whether the creator wanted copyright protection or not.

Karl (profile) says:

Section 230?

If, indeed, pre-1972 recordings are not covered by the DMCA, because those recordings are produced under state (not Federal) copyright laws, then wouldn’t they be covered by the other “safe harbors,” 47 USC 230?

The pre-1972 recordings would be covered by state (not Federal) copyright law, so they would seem to fall under 47 USC 230(e)(3): “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

The Section 230 safe harbors are considerably more robust than the DMCA’s, so this may work out better for service providers. Has anyone made that argument?

Mike Masnick (profile) says:

Re: Section 230?

Interesting idea, but doubtful. Section 230 has this:

No effect on intellectual property law

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

And while these works wouldn’t be under federal copyright law, they’d still argue they’re under state IP laws…

Karl (profile) says:

Re: Re: Section 230?

Interesting idea, but doubtful. Section 230 has this:

I thought that state intellectual property claims didn’t count, at least according to the 3rd Circuit:

While the scope of federal intellectual property law is relatively well-established, state laws protecting “intellectual property,” however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals. Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various state-law regimes. See 47 U.S.C. Sec. 230(a) and (b); see also Batzel, 333 F.3d at 1027 (noting that “courts construing Sec. 230 have recognized as critical in applying the statute the concern that law-suits could threaten the ‘freedom of speech in the new and burgeoning Internet medium’ ” (quoting Zeran, 129 F.3d at 330)). In the absence of a definition from Congress, we construe the term “intellectual property” to mean “federal intellectual property.”

  • Perfect 10 v. CCBill

    I honestly don’t think it would fly either, but I’m surprised that nobody has even raised the argument.

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