CBS Radio Says That It Doesn't Play Pre-1972 Music, Because All Its Old Songs Are Remastered

from the well-this-should-get-interesting dept

Back in 2009, a company called Bluebeat showed up on the market offering all sorts of MP3s from musicians for $0.25 a pop -- without a license from the copyright holders. The company claimed that it didn't need to get a license because all of the songs were specially remastered, in a manner it called a "psycho-acoustic simulation." Via this, the company claimed, it was not infringing on the original artists' copyrights and, actually, held the copyright to the songs it was selling itself. This theory was, to put it mildly, completely loopy. It was a twisted attempt to reinterpret 17 USC 114(b) which said:
The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.
Not surprisingly, a judge wasted little time in saying "uh... nope" to Bluebeat.com.

However, I'm reminded of this story as it appears that CBS Radio is trying an argument that is, at least, slightly reminiscent of Bluebeat.com's in a lawsuit over pre-1972 recordings. As we noted last month, ABS Entertainment, who holds the copyright on a bunch of classic songs, filed what it hopes will be a class action lawsuit against CBS Radio and other terrestrial radio stations, arguing that it's infringing on the copyrights of pre-1972 songs that it plays on the radio. At this point, we've explained the ridiculous and complicated history of the copyright of pre-1972 sound recordings that I'm not going to repeat it. Just click on the link in this paragraph and you can read it there if you don't remember. Or you can actually read the first few pages of the legal filing embedded below which provide a decent history as well.

In the past few years, various copyright holders have been trying to use this issue of the weird copyright status of pre-1972 recordings as a wedge issue to force more money out of digital streaming platforms, with somewhat mixed results and a few settlements, including big settlements from SiriusXM and Pandora. CBS Radio is fighting back with a really unique argument. It's claiming that they don't play any pre-1972 sound recordings, because any of the music they play that was recorded prior to 1972 is played from modern digital remasters of those songs, and thus the copyright on those sound recordings is post-1972 and under federal law, rather than state copyright law. From its filing:
Contrary to those allegations, CBS’s records for the last four years show that CBS did not publicly perform any of ABS’s pre-1972 recordings. CBS does not play vinyl sound recordings.... In fact, every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-mastered.... For example, “Tired of Being Alone” is found on UMG’s 2006 The Best of Al Green compilation.... That CD contains the re-mastered version of the song created and registered for copyright in 2000.... The “Let’s Stay Together” recording CBS played is the 2003 re-mastered sound recording as re-issued in 2009 by Fat Possum Records.... Every other song CBS played from plaintiff’s “Schedule A” also came from a CD released many years after 1972.
This is... fascinating. It seems crazy, but, then again, this legal theory was dreamed up by the copyright lawyers at Irell & Manella, the very same law firm that's pretending to represent a monkey in a copyright case. So, apparently, they like getting creative with their legal arguments.

There is one element in this argument that is so ridiculous as to almost be brilliant. Another "deep in the weeds" argument we've discussed in the past concerning copyright law is that of termination rights. Under existing copyright law, most works, even if they've been assigned to third parties, automatically return to their original creator after 35 years if those creators invoke their "termination" rights. This right cannot be signed away. And while certain works were exempt, apparently the RIAA lobbyists slept through that meeting and music was not included in the list of exempted works. And, since we just recently passed the 35-year mark since the 1976 Copyright Act went into effect (1978), some musicians have started exercising their termination rights.

And... here's the crazy bit. One of the RIAA's arguments against allowing artists to reclaim their copyrights is to argue remastered versions are subject to a separate copyright:
The second option is to re-record sound recordings in order to create new sound recording copyrights, which would reset the countdown clock at 35 years for copyright grant termination. Eveline characterized the labels' conversations with creators going something like, "Okay, you have the old mono masters if you want -- but these digital remasters are ours."

Labels already file new copyrights for remasters. For example, Sony Music filed a new copyright for the remastered version of Ben Folds Five's Whatever and Ever Amen album, and when Omega Record Group remastered a 1991 Christmas recording, the basis of its new copyright claim was "New Matter: sound recording remixed and remastered to fully utilize the sonic potential of the compact disc medium."
In other words... the RIAA labels themselves have previously argued that such digitized and remastered versions are subject to a separate copyright -- meaning, they may have screwed themselves with their own words.

From there, CBS Radio makes some more standard arguments accurately pointing out that, contrary to the claims of the copyright holders, California's state copyright law never recognized a public performance right. That argument failed when Sirius XM made it in California, but it's true. The idea that California's state copyright law ever included a public performance right is ridiculous, because such a right was never considered or exercised or even mentioned until just recently. Still, it seems slightly weird to argue the same argument that has already failed in the same court -- and, yet, once again there appears to be at least some method to this particular madness.

And that's where another odd part of the response comes in: CBS Radio invokes California's anti-SLAPP law, which allows defendants to try to get cases tossed out quickly on the basis that they were filed solely to stifle First Amendment protected speech. The SLAPP argument here seems weak, but that might be on purpose. CBS argues that broadcasting music is protected speech under the First Amendment, and that its "dissemination of the sound recordings at issue is 'connect[ed] with a public issue or an issue of public interest.'" And thus, it's effectively claiming that the lawsuit seeks to stifle its First Amendment... protected right to play music on the radio? A weak argument, yes, but perhaps on purpose. As Eriq Gardner notes in his story on this case, when SiriusXM lost its case about the public performance right in California, it was denied a chance for an immediate appeal on that issue (it would have to go through a full trial first). But, by invoking the anti-SLAPP law with the full expectation of losing, CBS Radio may hope to win the larger game, because:
One important if less known aspect of California's SLAPP law is an automatic right to appeal a denial of a motion to strike.

In other words, CBS could be thinking out its chess moves by sacrificing a pawn in order to advance its rook. Getting an appeals court to weigh in on what California law says about pre-1972 sound recordings would be particularly significant given that over on the East Coast, the 2nd Circuit Court of Appeals will consider what New York law has to say about the topic. If the appellate courts come to different conclusions, this could help set up a showdown at the U.S. Supreme Court.
So, while many of these arguments look silly on their face, the long-term strategy here seems pretty well thought out. Whether or not it succeeds, of course, is a different question entirely.

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  • identicon
    Anonymous Coward, 23 Oct 2015 @ 9:57am

    Whatever. All I know is, those vintage artists are going be rolling in the dough now.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Oct 2015 @ 10:04am

    Remember when Mike said satellite radio companies wouldn't play oldies anymore? Funny how they've now paid for licenses: http://arstechnica.com/tech-policy/2015/10/pandora-will-pay-riaa-90-million-for-playing-pre-1972-son gs/

    Another Masnick "prediction" down the drain. LOL!

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 23 Oct 2015 @ 10:12am

    Correct me if I'm wrong, but . . .

    If you remaster, aren't you doing it from a recording that was made pre-1972?

    No matter how you slice it, mp3 format, digital format, other modern tech not yet invented, isn't it coming from an existing recording that was made pre-1972? Even if that recording was the original studio tape direct from the microphones? It doesn't change the TIME when it was recorded.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2015 @ 1:24pm

      Re: Correct me if I'm wrong, but . . .

      and if remastering changes the copyright date then all songs that have ever been recorded have perpetual copyright. As the copyright is scheduled to end all a 'person'/'copyright holder'-> corporation need do to extend the copyright is issue a remaster of the original.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2015 @ 2:19pm

      Re: Correct me if I'm wrong, but . . .

      I think the argument goes something like "the remasters happened while copyright still belonged to the publisher, therefore the remasters are still under copyright by the publisher. Termination rights are only against the original work, not derivative works created while the publisher held the work."

      Using this (somewhat sound) logic, derivatives don't revert when termination rights are invoked -- otherwise, things would get REALLY messy.

      Personally, I think it'd be funny to do an acoustic diff between the original recording and the remastered one -- let the publisher keep the audio that's left, and pull back all the original audio that is included. So they'd get to the blips that had been cleaned up, the reverb, any any other incidentals, but any original sound would be stripped out.

      How do musical scores and lyrics tie into all this?

      reply to this | link to this | view in chronology ]

  • identicon
    AnonCow, 23 Oct 2015 @ 10:30am

    Too bad copyright expiration isn't based on copyright date. It would be hilarious to see the rights holders have to decide whether to give up 30+ years of copyright duration or get a check from the radio conglomerates.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous, 23 Oct 2015 @ 10:50am

    My recording now

    Based on that weak argument, all of the CDs I purchased and converted to MP3 are now copyrighted by me. I changed the original recording, so they are mine mine mine!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2015 @ 11:04am

      Re: My recording now

      I don't think CBS is arguing that they made the remasters, nor are they claiming they now possess the copyright. They're saying that when the labels released the new re-masters, those "re-recordings" were registered under new copyrights, and thus are now under the federal purview.

      I don't think it's a very silly argument, either. It is true that remasters are registered as new works.

      And some remastering isn't just a simple transfer to a new medium. The recording processes has three main steps: tracking (i.e. performing in front of the mic), mixing, and mastering. A typical "official" remaster will go all the way back to the mix stage, only skipping the tracking stage (Welllll... It's not unheard of for new instruments to be tracked by new performers--posthumous Jimi Hendrix releases are notoriously reviled for this.)

      Although some so-called remasters are nothing more than ramming the original already mastered recording into a brick-wall limiter and cranking the volume until the meters are stuck in the red. Garbage.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 10:54am

    Sonny Bozo Copyright Extension Act

    If Sonny Bozo hadn't been elected to Congress, we might never have had this awful copyright extension law.

    I think if we aren't going to roll back copyright to the original 28 years, then copyright holders need to give up a lot more control to the public performances.

    You don't sell the song on the radio, and who really wants to record a radio broadcast to listen to a song later? Public performances don't provide a copy of the music to the public, unless you have a live CD.

    There's give and take here.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 11:04am

    If you sell a cd with a notice of copyright for 2000, how can you claim a copyright of 1972?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2015 @ 11:26am

      Re:

      Look on Amazon's mp3 listings and you'll see release dates that are totally wrong. In most cases the release date listed is when Amazon decided to offer the material; they don't care about the actual date when the material was first made available to the general public no matter the form.

      I also remember when albums (vinyl and CD) were clearly marked as containing previously released material but had the current year listed as the copyright date.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 23 Oct 2015 @ 11:09am

    And thus, it's effectively claiming that the lawsuit seeks to stifle its First Amendment... protected right to play music on the radio? A weak argument, yes, but perhaps on purpose.

    Insofar as any argument that a legal-fiction entity that is not a human being has Constitutional rights is inherently wrong and ridiculous, yes, but if we disregard that, as the current legal structure unfortunately does, I don't see why it's a weak argument. It's actually kind of brilliant.

    US legal doctrine since pretty much forever has been that the airwaves are owned by the public, and leased to broadcasters. Therefore, sending out a broadcast is the exact radio analogue of public speaking, which absolutely is covered by the First Amendment, which (theoretically at least; in practice we've seen this is not true) trumps copyright law.

    It would be very interesting to see a ruling on the merits of this legal theory.

    reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 23 Oct 2015 @ 11:59am

      Re:

      Insofar as any argument that a legal-fiction entity that is not a human being has Constitutional rights is inherently wrong and ridiculous...


      Why? Corporations have always had some rights that could be considered "Constitutional rights" and not others. For example, corporations have (and have always had) the right own property and right to legally enter into contracts. On the other hand, corporations have never had the right to vote.

      I don't think that the Citizens United did anything more than clarify that one specific right can apply to corporations. It's not this huge boogeyman you seem to think it is.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 23 Oct 2015 @ 12:13pm

        Re: Re:

        I don't think that the Citizens United did anything more than clarify that one specific right can apply to corporations. It's not this huge boogeyman you seem to think it is.

        Then you haven't been paying attention to the real-world consequences that have come about as a direct result of that ruling. But "corporate personhood" was a thing--and a very real, very serious problem--long before the Citizens United decision.

        Watch the documentary The Corporation sometime, and bear in mind that the entire thing was made years before the Citizens United v. FEC court case was even filed, much less decided by the Supreme Court.

        reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 23 Oct 2015 @ 1:18pm

          Re: Re: Re:

          Then you haven't been paying attention to the real-world consequences that have come about as a direct result of that ruling.

          As far as I can see, all of the problems arising from Citizens could be fixed with campaign finance reform, so I don't really see it as a corporate personhood problem myself.

          Anyways, my original comment was directed at your absolute statement that non-human legal-fictional entities having Constitutional rights is inherently wrong and ridiculous. If you deny corporations *all rights* (for example the right to own property) then corporations could not exist. What would you replace them with? Government ownership of everything?

          reply to this | link to this | view in chronology ]

          • icon
            Mason Wheeler (profile), 23 Oct 2015 @ 1:27pm

            Re: Re: Re: Re:

            As far as I can see, all of the problems arising from Citizens could be fixed with campaign finance reform, so I don't really see it as a corporate personhood problem myself.

            Most of the legal scholars I've seen who have looked at the problem say exactly the opposite: the only way to fix the campaign finance problems caused by the Citizens United decision (in a way that could not be trivially overturned by the courts under the precedent set by the Citizens United decision, at least) is a constitutional amendment doing away with the concept of corporate personhood.

            If you deny corporations *all rights* (for example the right to own property) then corporations could not exist.

            I never said they should be denied "all rights". Corporations should be denied human rights, such as a legal recognition of personhood and the right to free speech, because a corporation is not a human being. This in no way interferes with the concept of ownership of property held in trust for the human owners of the corporation (the shareholders).

            reply to this | link to this | view in chronology ]

            • icon
              Gwiz (profile), 23 Oct 2015 @ 4:56pm

              Re: Re: Re: Re: Re:

              Most of the legal scholars I've seen who have looked at the problem say exactly the opposite: the only way to fix the campaign finance problems caused by the Citizens United decision (in a way that could not be trivially overturned by the courts under the precedent set by the Citizens United decision, at least) is a constitutional amendment doing away with the concept of corporate personhood.

              When I said "campaign finance reform" I probably should have used a stronger term like "campaign finance overhaul". In my opinion, the only way to fix the FUBAR system we have now is to completely change how elections are financed. Something along the lines of every candate gets x amount of dollars to win a primary and more as they progress along in the races. I don't hold any illusions that any such thing would happen in my lifetime though.


              I never said they should be denied "all rights". Corporations should be denied human rights, such as a legal recognition of personhood and the right to free speech, because a corporation is not a human being. This in no way interferes with the concept of ownership of property held in trust for the human owners of the corporation (the shareholders).

              I'm not trying to be obtuse here, I am seriously curious as the reason why you argue so stridently against this.

              Are corporations the only group of like minded people you think shouldn't have First Amendment rights as a group? You aren't arguing that an entity like the NAACP shouldn't get First Amendment rights when they put out a statement from the organization as a whole, are you?

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 24 Oct 2015 @ 12:24am

                Re: Re: Re: Re: Re: Re:

                Something along the lines of every candate gets x amount of dollars to win a primary and more as they progress along in the race
                s
                The problem with that is how do you decide who is a candidate, as if it is anybody who puts their name forward for the initial ballot, then lots of people would apply for the free money. If you make the parties nominate candidates you have just increased the power of the parties.

                reply to this | link to this | view in chronology ]

              • icon
                Mason Wheeler (profile), 24 Oct 2015 @ 2:05am

                Re: Re: Re: Re: Re: Re:

                Are corporations the only group of like minded people you think shouldn't have First Amendment rights as a group? You aren't arguing that an entity like the NAACP shouldn't get First Amendment rights when they put out a statement from the organization as a whole, are you?

                A person--including an officer of or spokesperson for a corporation, the NAACP, or any other organization--has a First Amendment right to free speech. The organization itself is a different matter. Crossing that line opens up a huge can of worms, as we have seen and are currently seeing in our own time.

                reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 12:18pm

    Schrödinger's Copyright

    Copyright law, like many others, depends on the parties involved. For example, different laws may apply to Bluebeat than CBS. And you can't tell for sure until it goes to court.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 12:30pm

    But "corporate personhood" was a thing...long before the Citizens United decision.

    True, future-president Abraham Lincoln argued an important Supreme Court case establishing this.

    ...and a very real, very serious problem...

    Only for fascists. You see, it's based on a very simple principle: people don't lose rights when they join together. This is what "right of association" means. So that church or synagogue buys a place to come together to worship, that museum or zoo or school buys a place to work together to entertain or inform the people, that hospital or halfway house buys a place to give medical help... based on the fact that a group of people has the same rights that each individual would have. And, for that matter, unions and trade guilds and professional associations and cooperatives all rely on the same basic human rights.

    Now, all kinds of dictators hate this. Only the state can own property; all workers are employed by the state; the state forces people to join the One Authorized political party or church or union; only the state can teach or heal.... The idea that the people themselves can associate to solve their own problems is more frightening (to a dictator) than the idea that people could own their own guns. Because a gun means the dictator or his goons might die. An Association means they might become IRRELEVANT.

    reply to this | link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 23 Oct 2015 @ 12:50pm

      Re:

      You might have a point if it wasn't for the simple, easily-observable fact that the fascists are the ones benefiting most from corporate personhood, at the expense of churches, unions and trade guilds, museums, zoos, schools, and ordinary people in general.

      BTW look up the word "fascist" sometime. It has a very real, very specific meaning, and it's not "government doing something I personally find objectionable or think is an overreach."

      reply to this | link to this | view in chronology ]

  • icon
    DocGerbil100 (profile), 23 Oct 2015 @ 4:28pm

    Regardless of monkeys...

    I think Irell & Manella have been very, very shrewd here, targeting what is probably the single weakest point in the RIAAs construction as a legal entity.

    The RIAA is trying to have it's cake and eat it, when it comes to the copyright status of remastered works - and that's something that could easily backfire in spectacular fashion in the courts. The down-in-the-weeds nature of the various arguments they're making - as well as the fact that they're making mutually contradictory arguments in different cases - seems very likely to lead in turn to a great deal of secondary litigation, from a great many interested third-parties.

    The very last thing they want at this relatively early stage is for any court, anywhere, to start looking at what they've done in toto and start applying duck tests calrifying the issues - whether they win or lose, it will cost them a fortune later on, either in derived settlements or verdicts.

    If they've any sense at all, I think avoiding as much judicial scrutiny as they can get away with is now probably the RIAAs number one priority in this case.

    A settlement seems almost inevitable.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 6:52pm

    What a mess. If nothing else, this case illustrates why copyright's have become unmanagable, resource wasting, impossible nightmare and need complete overhaul. We need to get rid of Citien's United first.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 24 Oct 2015 @ 12:54am

    Nice

    In other words... the RIAA labels themselves have previously argued that such digitized and remastered versions are subject to a separate copyright -- meaning, they may have screwed themselves with their own words.

    In other words, they decided to try hoisting the RIAA by their own petard. For the public and the artists, it might be the best outcome if this makes the petard break. In other words, if the plaintiffs lose, with a ruling that will create precedence for the RIAA's stance invoked here against them being invalid.

    Since that would be the best outcome for public and artists (while being the most expensive for the combined parties, requiring the lawsuit to finish), you can very much expect a settlement (with confidential conditions quite favorable for CBS) to cut this trial short.

    It's like a poker game where one cheater has four aces in his hand, and another has nothing, and the one with nothing raises heck into the other because the whole table has seen another player already fold another ace openly. Oops. So all hell will break loose if the guy with the four aces actually calls.

    There will be a settlement. The RIAA cannot afford to win this one.

    reply to this | link to this | view in chronology ]


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