Supreme Court Won't Hear Case About Copyright Protection Of Pre-1972 Sound Recordings

from the and-other-news-about-pre-1972 dept

For many years now, we’ve been talking about the copyright questions surrounding pre-1972 sound recordings. There are a ton of ongoing cases about this and it may be a bit confusing to keep up with it all. In short, under old copyright law, copyright only applied to the composition itself, but not the recordings. Many states then tried to step in and created state copyright laws (or common law doctrine via the courts) that gave sound recordings some form of copyright protection — some of it much crazier than ordinary copyright law. Eventually Congress federalized copyright for sound recordings, but it didn’t apply to any sound recordings from before 1972 (and a few at the very, very, very beginning of 1972, but it’s easier just to say “pre-1972 sound recordings.”) And then, even though the 1976 Copyright Act took away state copyright laws having any power, they still applied to certain aspects of pre-1972 sound recordings. This has… made a mess of things. The easiest solution would be to just admit this is dumb and say that pre-1972 works should be covered by federal copyright law, but lots of folks have been against this, starting with the RIAA (more on that in a bit).

And with things being confusing, some copyright holders have been using the weird status on pre-1972 sound recordings to effectively try to shakedown online streaming music sites into giving them better deals. The various cases have been all over the place, with the first few cases coming out saying that because pre-1972 sound recordings aren’t covered under federal copyright law, things are different and copyright holders can sue over them. This upended decades of what was considered settled law.

Last summer, in a related case on a slightly different issue, the Second Circuit completely ripped to shreds the argument from the record labels that the DMCA’s safe harbors don’t apply to pre-1972 sound recordings. The labels were going on a quixotic attack against the video hosting site Vimeo, and because the DMCA’s safe harbors protected that site, it argued that pre-1972 sound recordings didn’t qualify. The lower court had ruled the other way, opening up a world of problems for any website that hosted audio. Thankfully, the 2nd Circuit reversed it. Of course, the labels asked the Supreme Court to hear the appeal, specifically arguing that the 2nd Circuit’s ruling had to be in error because it was “contrary to the considered view of the United States Copyright Office.”

The Supreme Court, thankfully, declined to hear the case on Monday. This is a big win for the DMCA’s safe harbors. While the 2nd Circuit’s ruling only has precedence in that one region, the 2nd Circuit is fairly well respected and influential on the other circuits — and having the Supreme Court refuse to take up the issue, at the very least, suggests that the Supreme Court doesn’t see that reading as particularly egregious.

Meanwhile, there are other things afoot regarding the legal status of pre-1972 sound recordings. Late last year, we noted that the big win for the copyright holders in NY was overturned, and it was decided that, contrary to what some copyright holders have been arguing, there was no “performance” right under NY’s state copyright, and thus they can’t magically argue that such a right applies to pre-1972 works. Then, earlier this month, out here in California, the 9th Circuit told the California Supreme Court to explore the issue concerning whether or not California’s state copyright law provided some proto-performance right to pre-1972 works.

And, just a few days after that, the state of Georgia’s Supreme Court ruled that pre-1972 sound recordings can be played by streaming sites, and some copyright holders can’t bring “RICO” claims (IT’S NEVER RICO!!!!!!) just because iHeartRadio plays those songs.

As more and more courts seem to be cutting off this attempted path used by record labels to shake down online services, it appears that maybe even the RIAA is having a change of heart. As you may recall, back at the top of the post, I noted that the RIAA was one of the leading voices insisting that it would be horrible to bring pre-1972 sound recordings under federal copyright law a few years ago. If they hadn’t blocked proposals along those lines, none of this mess would have happened. That’s why I find it somewhat surprisng, that one of the RIAA’s favored front groups, musicFIRST, has been banging the drum this year, suddenly insisting that pre-1972 sound recordings should be treated the same as post-1972 works. Maybe, just maybe, the RIAA should have taken that position originally, rather than hoping to keep the copyrights separate so that it could force internet companies to pay more.

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Companies: riaa, vimeo

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Comments on “Supreme Court Won't Hear Case About Copyright Protection Of Pre-1972 Sound Recordings”

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Anonymous Coward says:

Reading the linked article it seems that Chris Israel is trying to say that Pre-1972 works should be treated the same as in covered by copyright in the same fashion as post-1972 works, not covered by the same law. I think this quote says it all personally.

“Thanks to a quirk in U.S. law, songs recorded before this date in 1972 do not have federal copyright protection, and that is a huge problem.”

Kinda disappointing, I was hoping at least someone had seen the light.

ECA (profile) says:


That all these corps Keep trying to get More and more and more and more…
and keep Pounding at the DOORS to get more.

Every time I look, State, federal Protections and agencies are being Lost..
For Many years, Most of our Gov. agencies have had a problem..They can ONLY Charge corps, and those Fines and fees, were created for 1 amount, from 40+ years ago..They have Never been raised..and NOt based on any formula. Its like a $50 speeding ticket to these corps.
How much of our Gov. is being taken up by Corps Demanding MORE/EXTRA rights..

Awhile back they tried to get Corps PERSONAL rights..and everyone laughed..
I made a comment, about Ok, Personal rights or Corporate rights, Pick one..Why do they get more rights?

Last comment..
that you are paying the Court costs for these corps..
And if they WIN, you pay the court costs, PLUS more Profits from OLD audio recordings..

ECA (profile) says:


IF we took all the languages in American english…and used All the rules from Each language..
It would be a convoluted pile of Monkey pucky..
OH!! thats correct…it IS a pile of Monkey pucky..

Its the thought that I before E except after C…Is only 50% right. There are as many word ‘IE’ as there are ‘EI’ so the rule is Mote.

Both American and English…WEBSTER changed English to what he Wanted, changed meanings, and spellings. That became American. And both languages are composed of Collected words from every language it has run into and from Previous Languages..

AND its not expressive. You can read a line in Any of a dozen ways. No meaning implied.
Putting Inference into a Sentence, MEANS something.. Books can give meaning to what is do you do that with a comment?

PaulT (profile) says:


“wHY NOT?”

Because it makes you look like an illiterate fool, makes your posts much harder to read, and causes people to skip them completely and ignore whatever it is you’re trying to say.

The rules are there for clear communication. If you don’t like that, feel free to continue with your illegible rambling. Just don’t expect a majority of people here to actually read them.

Anonymous Coward says:


Written English is so bland and flat so this is a good way to emphasize words. Every time you see an out of place capitalization think of the speaker pounding on the lectern or carefully pronouncing the word so you pay extra attention….

All those out of place capitalizations in the US Constitution, really make those words stand out doesn’t it.

Archillies says:

Why any copyright?

IANAL – My understanding is that pre-1972, there was only random state copyright on sound recordings. Why should ANY comprehensive copyright be granted now? Doesn’t granting the post 1972 copyright to pre- 1972 sound tracks grant copyright to recordings that never had it before? And offer a new hammer to the **AA’s to use to extort money from the services playing these songs?

I understand that granting these recordings federal copyright coverage would make copyright equal across a greater span of time but wouldn’t just eliminating the legitimacy of all of the random state copyrights do the same?

Put all recordings pre-72 into the public domain and be done with it. More the 40 years already for crying out loud. Why legitimize another 30 years for the recording industry?

PaulT (profile) says:

“That’s why I find it somewhat surprisng, that one of the RIAA’s favored front groups, musicFIRST, has been banging the drum this year, suddenly insisting that pre-1972 sound recordings should be treated the same as post-1972 works”

Not surprising, this seems to be a trick favoured by a certain type of politician. You can’t admit defeat and you can’t admit mistakes. So, when the other side appears to have you utterly defeated, just pretend that their position was the one you held all along.

Ninja (profile) says:

“Maybe, just maybe, the RIAA should have taken that position originally, rather than hoping to keep the copyrights separate so that it could force internet companies to pay more. “

They couldn’t go mafia style and demand money to let culture flow so they are in damage assessment mode trying to make the money they can with it. If there was more money to be made being total assholes they would go that route.

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