by Leigh Beadon

Filed Under:

emi, escape media, grooveshark, mp3tunes, umg

Grooveshark Loses Latest Round In Court, In A Ruling That Could Gut The DMCA's Safe Harbors

from the letter-and-spirit dept

The last big news in the ongoing fight between Universal Music Group and Grooveshark (and its parent company Escape Media) came back in July, when a New York court rejected UMG's argument that the DMCA's safe harbors didn't apply to pre-1972 sound recordings, because, technically, those recordings are not covered by federal copyright law. This was in keeping with the ruling in the fight between EMI and MP3Tunes, and seemed most consistent with the intent of DMCA safe harbors.

Naturally, UMG appealed, and in doing so made some compelling arguments about the wording of the law. The appellate court agreed, and has now issued pretty much the opposite decision: pre-1972 sound recordings are not covered by the DMCA (pdf and embedded below) and thus Grooveshark has no DMCA safe harbors for such songs.

There are a few different parts to the ruling, but the core argument is straightforward: section 301(c) of the Copyright Act explicitly states that no "rights or remedies" under common law copyright on pre-1972 recordings shall be "annulled or limited" until 2067, and it's pretty hard to argue that the DMCA doesn't do that:

Initially, it is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act. Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG’s rights, and an implicit modification of the plain language of section 301(c). The word “limit” in 301(c) is unqualified, so defendant’s argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act.

For defendant to prevail, we would have to conclude that Congress intended to modify section 301(c) when it enacted the DMCA. However, applying the rules of construction set forth above, there is no reason to conclude that Congress recognized a limitation on common-law copyrights posed by the DMCA but intended to implicitly dilute section 301(c) nonetheless.


Under such circumstances, it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat.

Take note of that last bit, because this ruling has made it more true than ever. And that's where the problems come in. It seems pretty clear that there is some sloppy drafting in how the DMCA is written (which isn't a surprise), in that what you have is wording that can be read this way, even though it clearly goes against the intent and purpose of the DMCA. If the DMCA's safe harbors don't apply to pre-1972 recordings, then the DMCA's safe harbors no longer apply at all to any service that includes music. That can't be what Congress intended, even if the wording of the law can be read that way.

Thus, if you go strictly by the wording, while ignoring the intent, the logic of the decision is sound, but the implications are disturbing: as Grooveshark pointed out in their defense, this interpretation would gut the DMCA. One of the key purposes of safe harbors was to prevent online services from needing to proactively scan for infringing works, since that would drastically and unfairly limit their growth, and we wouldn't have things like YouTube today if that were the case. But if pre-1972 recordings (which is plenty of material) are not included, then user-generated content sites do have to scan everything. And while it might be somewhat easier to identify pre-1972 recordings than it is to identify infringing uploads, it would still be insanely prohibitive — not to mention the massive loss to our culture from having a huge chunk of music history mostly vanish from the internet.

It's a little unclear just how far-reaching this ruling will be (it's at the state level, and it is in itself explicitly contradicting the earlier MP3Tunes ruling, which it declares to be "wrongly decided") but the potential implications are huge. Exempting all pre-1972 recordings from the DMCA would impact all corners of the internet in a bad, bad way. The only optimistic thought is that perhaps it would force congress to revisit the law, and we could finally push for a Digital Millennium Copyright Act that actually works in the digital millennium.

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  1. This comment has been flagged by the community. Click here to show it
    Anonymous Coward, 24 Apr 2013 @ 4:22am

    Re: Re: Re: Re: Re: *sigh*

    According to the Senate report on the DMCA, the intent was that the safe harbors section "provides greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities."

    Good for you, Karl. You made an effort to find a part of the congressional record. That's more effort than Marcus could muster; while purporting to represent what it said, he couldn't even be bothered to find the text. Too bad that section of the record says nothing about pre-1972 sound recordings, and it does nothing whatsoever to back up Marcus's point that the DMCA was intended to cover such recordings. Try again?

    And, unsurprisingly, you're absolutely wrong. Let's take a look at the House report on the DMCA: ***

    Why are you looking at 512(a)? We'll talking about Grooveshark, so 512(c) is what we're looking at. Try again?

    On the other hand, the Senate report doesn't mention Netcom at all, nor does it indicate at any point that it's simply codifying any existing case law. In fact, it makes it clear that the limitations on liability are entirely distinct from any limitations on liability that arise under case law: ***

    All that's saying is that the common law is left intact. More often than not, though, a case turns on whether the 512 safe harbors apply to the defendant or not. If they do, the case is typically over. If not, then use the common law to analyze liability. Not sure what your point is with this either. Try again?

    The Senate report also seems to directly contradict the court's ruling in this case. The report makes it clear that section 512 is not "a limitation" on copyright rights, as it "does not create any new exceptions to the exclusive rights under copyright law."

    512 is a limitation on LIABILITIES, not RIGHTS. The title of the section should clue you in: "Limitations on liability relating to material online." 512 limits the defendant's potential liabilities, not the plaintiff's rights. Try again?

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