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Government Music United States

Why Recordings From World War I Aren't Public Domain 329

Posted by samzenpus
from the that-old-timey-sound dept.
An anonymous reader writes "While Disney and others have done a great job pushing the end date for works entering the public domain ever further forward, most people have assumed that anything from before 1923 is in the public domain. However, it turns out that this is not true for sound recordings, in part due to an accidental quirk in copyright law history — in that Congress, way back in 1909, believed that sound recordings could not be covered by copyright (they believed the Constitution did not allow recordings to be covered), and thus, some state laws stepped up to create special copyrights for sound recordings. A court ruling then said that these state rules were not overruled by federal copyright law. End result? ANY recorded work from before 1972 (no matter how early it was recorded) won't go into the public domain until 2049 at the earliest."
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Why Recordings From World War I Aren't Public Domain

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  • That's a shame. (Score:3, Interesting)

    by Kireas (1784888) * on Thursday August 05, 2010 @06:57AM (#33148538) Homepage Journal
    It looks like my epic youtube video made up entirely of WWI soundclips will have to be put on hold. And yes, a video made entirely of soundclips. What now, huh?

    I'm interested however in the equivalent laws over here in the UK. Are we bound to the USA's system as part of some global copyright law thingy? I don't pretend to understand Public Domain, but I'd like to.
    • by QuantumG (50515) *

      Hey, at least two of my youtube videos consist entirely of soundclips.

      http://www.youtube.com/user/quantumg [youtube.com]

      • by PopeRatzo (965947) * on Thursday August 05, 2010 @07:32AM (#33148744) Homepage Journal

        Hey, at least two of my youtube videos consist entirely of soundclips.

        Don't worry, I'll start a fund to pay your bail.

        • Re:That's a shame. (Score:5, Interesting)

          by TrisexualPuppy (976893) on Thursday August 05, 2010 @09:18AM (#33149570)
          So I have several acetate discs from a radio studio in New York. They were recordings of the very first days of America's involvement in World War II. The radio network was purchased years ago and is owned by one of the "big boys" now. (Sucks how Clear Channel owns everything...) As far as we have been able to find, I am the only person even with any record (read knowledge) of this particular recording. So I have a piece of history that hasn't been released and would be really good to have in the public domain.

          So seeing that I am probably the only person that has this copyrighted material, whose rightly is it? Mine, the one guy in ten who was careful to not throw this old acetate disc of the estate? Or does it belong to that fat Clear Channel CEO who is at this very moment doing a line of coke off his secretary's &#*@?
          • Re:That's a shame. (Score:4, Interesting)

            by Ixitar (153040) on Thursday August 05, 2010 @10:03AM (#33150140) Homepage
            IANAL: Possession does not play into this. The copyright most likely belongs to the radio station in New York. If not them, then the artist(s) that recorded the discs. Unless you have a document showing the transfer of the copyright to you, then you do not own the material. If the copyright owner decides that they want the recordings back, then you will probably have to turn it over to them.

            I would suggest that you ask the Smithsonian. If you would like the recordings to go into the public domain, then I suggest that they might be the proper avenue.
            • Re: (Score:3, Informative)

              by green1 (322787)

              If the copyright owner decides that they want the recordings back, then you will probably have to turn it over to them.

              While the first part of your post was spot on, I don't believe this to be the case.
              The owner of the copyright can sue you if you make copies of this material or if you play it for an audience, but there is nothing at all that they can do to force you to turn over the material to them, or even provide them a copy. If they didn't think it valuable enough to keep a copy (or the originals) for themselves, that's their fault, not yours.

              • by Ixitar (153040)
                They probably have more money that him and can make life difficult. That is what I was alluding to.
          • by Mathinker (909784) * on Thursday August 05, 2010 @12:02PM (#33151682) Journal

            > So seeing that I am probably the only person that has this copyrighted material

            Your case underlines the bizarre "logic" of modern copyright law. Since you own the media, it is perfectly legal for you to destroy the recordings, which would, of course, destroy the "property" of the rightsholders (since they are the only copy). One wonders how that weird edge case fits into the "you wouldn't steal" rhetoric.

            On the other hand, it's totally illegal for you to distribute these recordings to anyone except the rightsholders themselves. So it is effectively illegal for you to preserve this work for future generations.

            This is why I do not feel bad in the least to advise you to digitize the recordings and upload them to some filesharing site like RapidShare or MegaUpload in an anonymous way, and then publicize the sharing link on a web forum where there will be a lot of interested people (I'm sure there must be some web forums where WWI history buffs hang out). Much as I like creators to be able to get paid, I hate even more for culture and information to be lost.

          • Re: (Score:3, Informative)

            by AndersOSU (873247)

            Check with a copyright attorney.

            The summary and TFA are a little overblown. Works made between 1923 and 1972 might not enter the public domain in some states (probably California) before 2049 at the earliest, but it may already be in the public domain in other states. On the one hand, since New York was and still is a hub of the radio and entertainment industry they may have made a special provision for copyrighting audio recordings. On the other, it may be permissible to drive over the bridge to New Jer

    • Re:That's a shame. (Score:4, Informative)

      by ciderbrew (1860166) on Thursday August 05, 2010 @07:04AM (#33148576)
      UK I found this.

      How long does copyright last for?
      Copyright generally lasts for the lifetime of the creator and then to the end of the 70th year afterwards. So for Elgar, say, who died in 1934, his original music came out of copyright in 2005. However copyright also exists in the editing, arrangement and reconstruction of previous music compositions and only expires 70 years after the death of the editor, etc. Copyright in recordings lasts for 50 years.

      http://www.thefrms.co.uk/copyright.htm [thefrms.co.uk]
    • Re: (Score:3, Informative)

      by IBBoard (1128019)

      I've been threatened over trademark because of international agreements (trademark of a descriptive phrase that I was using in a descriptive manner) so the WIPO treaties probably do allow international copyright claims as well. If nothing else, you won't be able to put it up on YouTube if any of the content is American because you're treading in their legal territory.

      • Trademark law can get pretty ridiculous
        Example: some US company trademarked the term "sugercraft" somehow despite it being a commonly used term for an entire profession (imagine if some company trademarked "programming") and sends similar letters to companies which use the term.

        I mean how do you manage to trademark the term for an industry? One which is already in the dictionary as a generic term?
        http://dictionary.oed.com/cgi/entry/50241744/50241744se219?single=1&query_type=word&queryword=sugarcraft [oed.com]

    • Re: (Score:3, Informative)

      by Threni (635302)

      No, we're not bound by foreign laws when on UK ground. Look at Naxos, the record label which sells historical recordings, although some are considered piracy in the US. So Americans can't buy them, and are instead forced to resort to..uh..piracy if they want them. It's a funny old world, isn't it.

      • Re: (Score:3, Interesting)

        by vipw (228)

        Why can't American's buy them? I thought copyright controls copying, receiving a copy of something isn't copying. I think the real restriction is that Naxos can't sell them in America.

        • by Machtyn (759119)
          Right, and English is a funny language. He probably could have been more explicit by stating "So Americans can't buy them in America". But, IANAL, I think goods that would normally be illegal to purchase in the USA also cannot be transported into the USA (despite all the fake Gucci, fOakleys, Cubans, etc that make it here from China).
        • by tepples (727027)

          receiving a copy of something isn't copying

          The exhaustion of exclusive rights after the first sale of a phonorecord (17 USC 109) applies only after the first sale on United States soil (17 USC 602).

          • Re: (Score:3, Interesting)

            by russotto (537200)

            The exhaustion of exclusive rights after the first sale of a phonorecord (17 USC 109) applies only after the first sale on United States soil (17 USC 602).

            That's a point in dispute. There's currently a case pending before the Supreme Court about it, Costco Wholesale Corp. v. Omega.

    • by metacell (523607)

      There are international treaties regarding copyright that many countries, including the UK and the US, have signed. But that only means each country has to follow what the treaty says; it doesn't mean a law in one country automatically becomes law in the other.

    • Re: (Score:3, Informative)

      by tverbeek (457094)

      Under international treaty, all copyright laws are local.

      In the US, US copyright law applies (or their local state's copyright law, it seems), regardless of where the material was created.

      In the UK, UK copyright law applies, regardless.

      In Albania, Albanian copyright law applies, regardless.

      Et cetera.

  • So does that mean that if we manage to record the words of Christ from a 2000 year old clay pot, the RIAA will come after us?
  • Guiltless pirate. (Score:5, Insightful)

    by Anonymous Coward on Thursday August 05, 2010 @07:12AM (#33148610)

    Every time I start to feel a shred of guilt about my rampant piracy, I read something like this. Then the guilt goes away. Copyright is a corrupt system, which no longer serves it's original purpose of promoting production of useful art. Instead it is nothing but a mechanism to ensure maximum profits for those least deserving, and to make sure that the public domain remains small and legally dangerous enough to pose no serious competition. I pay copyright law no respect, and will not do so unless it it reformed to bring it back in line with sensible terms, make it less biased towards those who can afford millions of dollars in legal fees and eliminate the possibility of copyright being abused as a tool to censor criticism or prevent interoperability.

    • by Idbar (1034346)
      Every time I remember the movie Demolition Man, I don't particularly remember the three shells, but their radio stations. Everything is driving our culture to start listening just advertisement:

      1. Google's finding that advertisement pays a lot.
      2. Copyright.
      3. Constant repetition on stations, pushing crappy music to masses until the "like it".

      The more I think about it, the more I'm concerned that's the future of that branch of the arts.
      • by hedwards (940851)
        There's an easy solution to #3, don't listen to commercial radio. There's plenty of legal alternatives out there, plus a whole crap load of genuinely brilliant material out there that you wouldn't hear on the radio anyways. I've heard that there's a lot of really cool English language stuff coming out of Japan that's really tough to get access to in the US.
    • Re: (Score:3, Insightful)

      by elrous0 (869638) *

      While I don't think it's a blanket justification for piracy (some people actually DESERVE copyright protections), I have to sympathize. I used to teach a class that dealt briefly with copyright. At one time, I thought all the "Author plus 70 years, different in x circumstances" formulas. But in the late 90's I just simplified it to "If it's not public domain right now, it never will be" and left it at that.

      And call me mean, but I'm glad Sonny Bono hit that fucking tree. I just hope there is a special place

    • Re: (Score:3, Insightful)

      by radish (98371)

      You know what? If you said you disagreed with traditional copyright and so would only listen to copyleft/public domain music, and use open source software, etc, then I'd have a lot of respect for you. But saying you disagree with the mechanism by which a creator has chosen to be compensated and yet still choosing to benefit from their work, well that just makes you a freeloading cheapass.

      • by rbochan (827946) on Thursday August 05, 2010 @09:47AM (#33149932) Homepage

        Personally, I'm all for people not breaking just laws. Unjust laws, well, knock yourself out.

      • Re: (Score:3, Insightful)

        by crossmr (957846)

        Can you prove that anyone who made those recordings actually chose to put them under this system? I don't anyone recording something in WWI really gave two shits about copyright when they recorded it and created it.

    • by metacell (523607)

      I was ambivalent on the copyright issue for a long time. Then I read about the economic theory behind copyright, and realised that it was actually harmful to society at large.

      From an economic point of view, there is absolutely nothing wrong with a person, A, getting something for free (for example, by copying a computer program). It essentially means that a value has been created from nothing - that value has been added to the total value produced by society. Nobody would be better off if A was deprived tha

      • by Tacvek (948259) on Thursday August 05, 2010 @09:01AM (#33149438) Journal

        Now, combine this understanding with the fact that most copyrighted products generate most of their income in the first few years after publication, or even less, and you realise that a copyright term of more than a few years has no benefits to society. It almost exclusively does harm, by preventing values to be produced for free.

        I would have little problem with a 14 year copyright term. The worry with short copyright terms is that too many people may just wait until the term expired, so that they could get the work for free. Consider a shorter term of 7 years. It is feasible in some media, books especially, to wait 7 years to buy and read the book. Commercial exploitation of a franchise in a different media can often wait that long, such as a filmmaker waiting to adapt a book into a movie if it let them completely cut the book's authors out of the equation.

        But 14 years is long enough that in the vast majority of media few people would find it worth waiting, if they could afford to buy it. Futhermore, by 14 years works in almost every medium have all but exhausted their profit making potential.

        Music is actually the odd one out here, considering the money songs from the 80's or earlier can still bring in, be it by royalties by the "oldies" stations, and continual sales of albums. Granted though that even here, the overwhelming majority of the profit should have been made in the first year or so, when the song was popular, so cutting off the revenue at 14 years is still within reason.

        It is interesting to think about what would be now be in the public domain for computers/tech with a 14 year copyright limit. The clasic NES-era video games would be in the public domain, as well as many of the 16-bit era classics. Windows 95 and Windows NT 4.0 (but just barely, so Microsoft could withhold the patches later released for both OS's, if they wanted), and thus also MS-DOS and the older Windows. Pretty much all the software for older historic machines, be it the VAX, or the C64. All the classic UNIXs, .... The list is just astounding.

      • by operagost (62405) on Thursday August 05, 2010 @09:05AM (#33149478) Homepage Journal

        Now, combine this understanding with the fact that most copyrighted products generate most of their income in the first few years after publication, or even less, and you realise that a copyright term of more than a few years has no benefits to society. It almost exclusively does harm, by preventing values to be produced for free.

        Can I summarize your entire post to, "We should return copyright protection in the USA to 14 years with a 14 year extension as in the 1790 Copyright Act"?

  • Wilhelm Scream (Score:5, Insightful)

    by Anonymous Coward on Thursday August 05, 2010 @07:19AM (#33148642)

    So any movie using the Wilhelm Scream are also breaking copyrights? There go a *lot* of big Hollywood movies!

  • Business as usual (Score:5, Insightful)

    by sqrt(2) (786011) on Thursday August 05, 2010 @07:21AM (#33148656) Journal

    I'm going to continue doing what I normally do, and ignore copyright law. Absurdities like this just show how backwards and useless the system is. Scrap it, make everything public domain.

    • by gman003 (1693318)

      That's a bit too extreme. I for one would fix copyright terms at ten, maybe twenty years. Probably just a decade, though. That is ample time for the author to get all deserved profit, but short enough for the work to still be culturally relevant when it enters the public domain.

    • Re: (Score:3, Insightful)

      by blindbat (189141)

      Uh huh. And then everything you make, whether software or a book you write, will be taken by some big corporation and sold by them.

      Copyright needs to be in place in order to protect the newcomers and the original creator of a work so that they can make a living.

  • by Bog Standard (743863) on Thursday August 05, 2010 @07:21AM (#33148658)
    Coming from the UK, I can understand how people can be extradited on US federal law charges. I'd be surprised if state laws apply too. For that matter how does this affect US citizens in say NY if the law is broken in CA?
  • What does this mean? (Score:5, Interesting)

    by stephanruby (542433) on Thursday August 05, 2010 @07:26AM (#33148692)
    Did all States create those copyright laws? Or did just some of them do? And what about materials recorded abroad, or broadcast abroad? Enforcing copyright law on a State by State level would seem to me like a very difficult thing to do.
  • A better Congress? (Score:5, Insightful)

    by icebraining (1313345) on Thursday August 05, 2010 @07:40AM (#33148780) Homepage

    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.

    • by dkleinsc (563838)

      More like a music industry that was starting from the ground up, and hadn't achieved the same lobbying clout as other industries at the time, such as railroads and finance. The railroads in particular were notorious for basically showing up in Washington DC with a few trunks full of cash and inviting each congressman in turn to take his share. That's why to "railroad" a bill through is to more-or-less force it without any consideration of the merits.

      By comparison, the music industry at the time was basicall

    • Re: (Score:3, Interesting)

      by unwastaken (1586569)

      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.

      I found this to be the more interesting and exciting part of that quote:

      Congress wondered about the constitutional validity of such protection.

      That was probably the last time the constitutionality of a law actually came up in Congress...

  • "ANY recorded work from before 1972 (no matter how early it was recorded) won't go into the public domain until 2049 at the earliest."

    - I think you mean any USA created work?

    • by tverbeek (457094)

      "I think you mean any USA created work?"

      No, it would apply to works created in other countries, but only in the US. Outside the US, local copyright laws apply. This is oversimplifying it a little, but.... international copyright law doesn't care where the work was created; under both Berne and the UCC, all works get the same treatment in any given country, regardless of origin.

      But according to this article, the scope is actually more specific than that. The argument is that individual state laws are prov

    • Re: (Score:3, Informative)

      by geekoid (135745)

      actually he means works will be under copyright in the states that passed the law.

  • by linebackn (131821) on Thursday August 05, 2010 @08:12AM (#33149040)

    That's right, copyright is STEALING! It is stealing history and culture from future generations. It is stealing from the global knowledge of humanity. Not just infringed upon; information is locked up until it rots in to nothingness.

    I have no specific desire to take control of mickey-frikkin-mouse away from the Walt Disney Corporation, or similar works from their holders. But I believe the original idea of copyright was to benefit humanity by encouraging people to create more works by granting an author the PRIVILEGE to control how their work was distributed for a limited time.

    However, if a holder does not ultimately contribute something back to humanity in exchange for this privilege, then they are literally stealing from humanity.

    The current system effectively prevents these works from continuing to benefit and enrich humanity after they are out of print by failing to permit works from entering the public domain in a timely manner if ever. This needs to be fixed.

    For a person or entity to retain control over a work indefinitely, such as current laws essentially permit, is STEALING from humanity.

    • Re: (Score:3, Interesting)

      by jonsmirl (114798)

      The creation of orphan works is the greatest crime of all. And I have to wonder if the RIAA/etc are trying to use an orphan work strategy to suppress and destroy vast amounts of older works as a mechanism to encourage you to buy their new stuff.

      There is a very simple way to fix the orphan work problem. First 10 years copyright is free. For each 10 years after that it has to be renewed with a payment of say $5,000. If your work isn't generating enough income to cover a $500/yr renewal fee it isn't economica

      • Re: (Score:3, Insightful)

        by sznupi (719324)

        You assume they would renewe only if that specific work were to generate enough income.

        They would be pay as long is it is economically viable to block freeing it; in relation to rest of the portfolio.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      So artists shouldn't have property rights? I've already been told by a lawyer that existing contracts I have over a recent work shouldn't have existed because generally artists in my business aren't allowed to retain rights to their work. Translation it's okay for companies to own and profit from those rights but not artists. Now I'm being told those rights shouldn't have existed in the first place? Now how exactly am I supposed to make a living if I don't have any rights to sell? We don't generally have pa

  • by Anonymous Coward on Thursday August 05, 2010 @08:36AM (#33149214)

    While I was writing my philosophy thesis, I discovered that many of G.K. Chesterton's works that he wrote in Britain between 1923 and 1936 when he died are public domain in Britain, where they were published.

    But they are not public domain in the U.S.

    One of my unfinished projects is to combine all his works that are public domain, and throw a full text index on it to make a little G.K. exclusive search engine -- but we're going to have to go with a non-U.S. ISP if I ever do get around to getting it off the ground.

    • Re: (Score:3, Interesting)

      by tverbeek (457094)

      It works the other way around as well. The US vs. pretty much the rest of the world use different milestones to calculate copyright expiration. In the US it's the date of creation, elsewhere it's date of the creator's death. So for a long-lived creator who got an early start on his career, copyright on his early works would expire sooner in the US than elsewhere*, but for a short-lived creator or one who created works shortly before his death, those works will generally expire sooner in the rest of the w

  • My solution... (Score:3, Interesting)

    by night_flyer (453866) on Thursday August 05, 2010 @08:42AM (#33149274) Homepage

    If a recorded item, writing or whatnot is considered valuable, then the owner should have to buy a license to keep it out of the public domain after a reasonable and free period of time (like the original 7 years). after the free period is over the owner would have to make a determination if the item is valuable enough to pay for to keep it out of the public domain. This protects Mickey, but releases a whole slew of recordings and books that have no commercial viability.

    • Re: (Score:3, Interesting)

      by geekoid (135745)

      7 years is too short. Between editing, shopping the work around, and other time issues it needs to be 14 or 20 years.

      Some people will work 5 years on their first book. Also, some recording will sit on record companies shelves and not get wide pay for years after it's been recorded.

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