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Music The Courts

DMCA Safe Harbor May Not Apply To Old Copyrighted Works 139

Posted by timothy
from the no-escape-clause dept.
tlhIngan writes "On Tuesday, the New York appellate court denied Grooveshark the DMCA safe harbor protection on songs like Johnny B. Goode. What happened was due to an oddity in the law, the DMCA does not apply to state-licensed copyrighted works (those copyrighted before February 15, 1972). What happened was Congress overhauled copyright law to make it a Federal matter, but all works prior to that date still come under common-law and state statutes. The end result is that Grooveshark does not have DMCA safe harbor protection for older works and may be sued for copyright infringement (barring other agreements, e.g., UMG and YouTube), even though they fully comply with the DMCA otherwise, taking down copyrighted materials. Grooveshark is a "music locker" service allowing users to upload music for others to listen to."
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DMCA Safe Harbor May Not Apply To Old Copyrighted Works

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  • by Anonymous Coward on Thursday April 25, 2013 @09:13AM (#43545783)

    that corporations denied us access to our culture.

    You might see music as a "product", but it's been a cultural output since the beginning of time.

    • by Aguazul2 (2591049) on Thursday April 25, 2013 @09:29AM (#43545963)

      that corporations denied us access to our culture.

      You might see music as a "product", but it's been a cultural output since the beginning of time.

      When I ran the anti-corrupt CD campaign for the UK Campaign for Digital Right (now defunct), the group with the most interesting complaint were the archivists. They have the responsibility to archive our culture for future generations. All the DRM and physical protections and ill-conceived laws make their job increasingly difficult. If corporations have their way, maybe in 1000 years this will indeed be seen as a Dark Age because nothing readable/accessible of our corporate-sponsored culture survived. Just cat videos.

      • by Ashenkase (2008188) on Thursday April 25, 2013 @09:42AM (#43546041)
        Don't worry, in 1000 years time our genetically modified cats will have overthrown their furry shackles and will have become our feline overlords. They will be most thankful that humans have kept their historical "culture" properly archived and indexed, most notably "Cats in Sinks".
      • "When I ran the anti-corrupt CD campaign for the UK Campaign for Digital Right (now defunct), the group with the most interesting complaint were the archivists. They have the responsibility to archive our culture for future generations. All the DRM and physical protections and ill-conceived laws make their job increasingly difficult."

        And in the U.S., DMCA is one of the most egregious laws. We keep hearing about the "safe harbor" provisions, but those provisions would hardly be necessary if it weren't for the other, very negative parts of this disastrous law.

        Having said that, I really wonder about TFA, and whether it gets things quite right. Copyright has always been a Federal matter in the U.S... it says so right there in our Constitution.

        • States used to have their own copyright laws. The 1976 copyright act nullified them going forward but they may still apply for older works.
          • States used to have their own copyright laws. The 1976 copyright act nullified them going forward but they may still apply for older works.

            Congress (and big media) assert that it has the power to extend the duration of these state issued copyrights. Is the scope of preemption by the federal copyright law really so limited that the DMCA would not apply to those works?

            Worse, selective application of the DMCA to those early works would create an even more difficult situation not only for customers, but also for independent artists. The way things have been going for the last few decades, it will soon be impossible for artists to legally distribut

          • "States used to have their own copyright laws. The 1976 copyright act nullified them going forward but they may still apply for older works."

            I'm not about to claim that's wrong, because I don't recall ever hearing about it before. But the Federal government has always had the power to issue copyrights, so having separate State copyrights seems pretty strange and redundant.

            U.S. Constitution, Section 8:

            "The Congress shall have power...

            8.8 To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

          • Then I'm confused. As I understand it (and I could be wrong) federal law extended the copyright for basically forever to keep products like Mickey Mouse under copyright protection, but this says that you can be sued under state law because DMCA covers only those items protected by federal law. So it looks like they are having their cake and eating it too because federal law extended copyright for items that were copyrighted under state law but allows for anyone to be sued for copyright violation even if the
            • by kermidge (2221646)

              Worse. They own the kitchen. They own the house. They own the land on which it stands. They even own you. (Well, not entirely, yet, that last one, but they're working on it.)

              • by kermidge (2221646)

                forgot to quote you
                "So it looks like they are having their cake and eating it too"
                as intro to my post.

        • Yes, the article was right.

          And this ruling basically makes the DMCA invalid, because a web site operator would need to implement a filter to determine if uploaded files were covered by this older copyright law [or be sued and lose, as per this case], but doing this filtering means you know [or can know] that the file is covered by someones copyright in general, therefore you can't be protected by the DMCA.

          • I like this thinking. I'd love to see the DMCA shitcanned.
            • by suutar (1860506)

              problem is this won't cause the DMCA to get dropped, it'll just make the one decent part (safe harbor) useless. Sort of like how fair-use is legal*, but useless because you can't actually do any of the stuff without breaking the DMCA.

              * 'Legal' here in the sense of 'not forbidden'. Fair use (currently) isn't a right, it's a restriction on lawsuits.

              • 'Legal' here in the sense of 'not forbidden'. Fair use (currently) isn't a right, it's a restriction on lawsuits.

                On the contrary. Fair use is both a restriction on lawsuits, and a right.

                Article 1, Section 8.8

                To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

                ... is the only place in the Constitution that refers to any "right" being Government-granted. But it does at least mention that they are limited. This is in contrast to other rights in the Constitution. Scholars are pretty much in agreement that (except for 8.8) the "rights" mentioned in the Constitution were not considered to be Government-granted at all. They were considered to already exist; the Constitutio

                • by suutar (1860506)

                  The existence of fair use may be based on the right of free speech (though the description in law does not seem to me to indicate this), but in practice it is defined as a restriction and exception to the rights of copyright holders:

                  Notwithstanding the provisions of sections 17 U.S.C. 106 and 17 U.S.C. 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

                  I wish it were a right. I could sue for being prevented from making copies for legitimate purposes. But as is, it's an "if you manage to do this it's not an infraction".

      • that corporations denied us access to our culture.

        You might see music as a "product", but it's been a cultural output since the beginning of time.

        When I ran the anti-corrupt CD campaign for the UK Campaign for Digital Right (now defunct), the group with the most interesting complaint were the archivists. They have the responsibility to archive our culture for future generations. All the DRM and physical protections and ill-conceived laws make their job increasingly difficult. If corporations have their way, maybe in 1000 years this will indeed be seen as a Dark Age because nothing readable/accessible of our corporate-sponsored culture survived. Just cat videos.

        No in a thousand years our descendants will be thanking the pirates that broke the drm and shared content with the world in easily format shift-able way. todays pirates and drm hackers will be looked at the same way we look at the monks that devoted their lives to copying the greek manuscripts, or as Gutenberg for making that information accessible to the public.

        • by morgauxo (974071)

          I don't know about that. How much of today's culture is really worth preserving anyway? Perhaps people of the future will hate today's pirates for cursing them with a library of reality television, lady gaga, etc...

          • I don't know about that. How much of today's culture is really worth preserving anyway? Perhaps people of the future will hate today's pirates for cursing them with a library of reality television, lady gaga, etc...

            Nah. When I look at list of most torrented shows its stuff like game of thrones , big bang theory, fringe, how i met your mother, walking dead, shows that express our culture not necessarily what the networks push. The reason there are so many "reality" tv shows is they are cheap to produce so the networks make tons realizing that while they wont get as may people watching it does not matter because they don't have to make as much money to pay for more. But when it comes to pirated television the wheat is s

    • Yeah...is that the new rationalization for not paying for music?

      • by suutar (1860506)
        I dunno about music, but that's my rationalization for scarfing up old issues of IASFM, F&SF, and Analog... lots of good stuff in there that will never be in print again because by the time it's out of copyright there won't be any sources left. (Okay, that may be pessimistic. But 'never in print again in my lifetime' I'd put money on, if I had any way to collect.)
  • Insanity! (Score:5, Insightful)

    by Anonymous Coward on Thursday April 25, 2013 @09:14AM (#43545789)

    Nothing that old should be covered by copyright, anyway. To give safe-harbor to those hosting new works but not those works that should be in the public domain shows that out "legislators" are batshit crazy. Only a certifiable lunatic would pass laws like the ones we have on the books.

    • Re:Insanity! (Score:4, Insightful)

      by bill_mcgonigle (4333) * on Thursday April 25, 2013 @09:26AM (#43545927) Homepage Journal

      Only a certifiable lunatic

      The sociopaths are giving the lunatics a bad name!

      • Try to remember, our public servants have been given an offer they can't refuse. Either their brains or their signatures will be on whatever bill the industry proposes.

        • by TheCarp (96830)

          That is hardly a fair choice you know.... it forces them to choose signatures since they haven't got brains.

    • Only a certifiable lunatic would pass laws like the ones we have on the books.

      Well, they're essentially written by an entity with multiple personality disorder who is taking advice from robber barons. Is it really surprising that they often don't make sense?

  • LOL "music locker" (Score:1, Insightful)

    by Anonymous Coward

    Yeah, we all know how well "music locker" concept is. Kinda reminds me of a store called Woolworth's. You know what's remaining of that once GIANT business? Foot Locker. Oh wait, isn't THAT dead, too? No joke, Woolworth's dissolved into Foot Locker, and Foot Locker dissolved into nothing. So will be the way of ALL P2P music sharing services, like Napster, Kazaa, Kazaa Lite, Kazaa Codec Pack, Napster, and Torrent services like The Pirate Bay and Enpornium. I suggest that you move back to CDs and use your cam

    • by dyingtolive (1393037) <brad.arnett@NosPam.notforhire.org> on Thursday April 25, 2013 @10:06AM (#43546273)
      I'm confused, help me out here:

      So your argument is that businesses, no matter how great an empire they happen to be, that cannot adapt to the changing of the times will crumble under a superior model employed by lighter and faster moving competitors?

      I can follow that argument. The source of my confusion is that you are applying it to the wrong side of the fence.
    • by Anonymous Coward
      Wait, so where did I buy my shoes at yesterday?
  • by Covalent (1001277) on Thursday April 25, 2013 @09:19AM (#43545845)
    It seems to me that every day there is a copyright story here at /. I am not complaining - I think our copyright system needs a major overhaul. But perhaps it's time for a new sub-header. Maybe split yro into copywrong and tinfoilhat?
  • This is why (Score:4, Informative)

    by Endo13 (1000782) on Thursday April 25, 2013 @09:25AM (#43545913)

    US copyright is currently bullshit. Those songs should have been public domain for 13 years already.

  • by gman003 (1693318) on Thursday April 25, 2013 @09:44AM (#43546059)

    The only good part of the DMCA was that it applied a safe harbor protection - if you follow the law, and take stuff down when asked and don't openly solicit unauthorized content, you're safe.

    But now apparently that protection doesn't apply to roughly half the things that could potentially be uploaded. So you have to manually review and approve any file, since you can't know whether it falls under DMCA safe harbor or not. Thus eliminating any potential benefit of the DMCA until 2044 or so, longer if they extend copyright durations again (so, longer).

    So then, what's the point? It's a law that applies far too harsh penalties, outlaws modifying your own property if it's been magically declared a "protective measure" and is abused more than most tax loopholes. If the one reasonable bit about it has been struck down, well, I think it needs to be gone. And I'm sure Google et al. will be agreeing.

    • by erroneus (253617)

      Yes... the minefield is officially open for business. If we thought all of this patent troll craziness was bad, wait for the trolls who license pre-'72 works to start coming out of the woodwork.

  • by JWW (79176) on Thursday April 25, 2013 @09:49AM (#43546095)

    This decision is severely damaging.

    I don't think it will be long now before suits are filed against most of the digital locker services to try to "catch" them with pre 1972 content.

    And if they manage to shut down the file lockers, they will ramp up the courage to go after YouTube. And with it already proven that it is nearly completely impossible for YouTube to perfectly filter everything automatically, they will lose.

    I have decided, and told my children to look at any music they are purchasing and make sure it is not copyrighted by UMG.

    I am fine with buying digital music online, but I am not fine with giving any money to a company who supports policies that could destroy the internet.

    Companies that try to pursue actions and decisions that cripple the internet are IMHO enemies of mankind.

  • But wouldn't the Copyright extension it enjoys now fall under the federal statute, or did the states grant the copyright extension too?

    • by digitrev (989335)
      According to the article, "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this Title until 2067". So in other words, the old works get the old protections for 95 years, as well as any new protections. So in this case, it seems that the old State-licensed works get all the benefits of the copyright term extension acts.
      • by JWW (79176)

        Wow its almost like these old recordings have been given Super Copyright powers after falling in a vat of government legislation...

      • by suutar (1860506)
        US17 301c also says 'Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.' which would imply that the entirety of Title 17 would be inapplicable (permanently, even). But then 301e says 'The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunde
  • So the 1972 federal changes did NOT extend the copyrights on older materials? I can't see how it can be both ways. All this time, everyone seems to have been working under the assumptions that all works protected under copyright had their rights extended and all that under the 1972 federal copyright changes. So their protection has been enhanced and the defense provided by the DMCA is not available because the 1972 federal copyright changes do not cover...

    That's just idiotic. Another commenter said it e

  • by gstrickler (920733) on Thursday April 25, 2013 @10:07AM (#43546297)

    Article 1, Section 8 [usconstitution.net], clause 8 of the US Constitution says: "The Congress shall have Power .... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    So, it should always have been under federal jurisdiction, not state. Indeed, that should make any state laws regarding it null and void due to federal supremacy.

    • If Congress has power to enact a statute, it has power to delegate the details to a regulatory agency. I'd imagine it has similar power to delegate the details to the states, as it appears to have done in this case.
      • by maroberts (15852)
        Yes but unless it specifically did delegate those rights to the states, then surely state laws have no standing as they infringe on Congressional powers.
        • by tepples (727027)

          unless [Congress] specifically did delegate those rights to the states

          It did. Another user quoted the statute in question [slashdot.org].

          • Actually, that's an ex-post-facto delegation, it doesn't show where Congress ever delegated the authority to the states in the first place, which would be necessary for the state laws to be valid. So, when you find that statute, you'll have something. Here's a head start for you, you have to find a federal statute that supercedes the first federal copyright act, the Copyright Act of 1790 [wikipedia.org].

            • That depends on whether the Constitution recognized creators of sound recordings as "authors". The record industry would argue that before 1972, the Constitution was interpreted as not recognizing so.
    • All this says is that the Feds can make IP laws. Nothing about the states not being able to do so if there is no federal coverage.

      • Incorrect. Article 6 [usconstitution.net], clause 2, states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

        10th Amendment [usconstitution.net] states: "The powers not delegated to the United States by the Constitution, nor prohibited by it

        • As this is an explicit grant of authority to Congress, it is exclusively a federal power.

          Your quotes certainly don't support that interpretation. Article 6 only says that federal law overrules state law. If there is no conflict, that doesn't apply. The 10th Amendment explicitly reserves powers to the States or to the people; it doesn't take anything away. Delegating your authority doesn't imply giving it up yourself, and there is nothing in the Constitution which would prohibit the States from exercising their authority in this matter (unlike, say, tariffs on interstate commerce).

          • But the 10th Amendment makes it clear that the powers explicitly granted to Congress, are NOT granted to the States or the People.

  • So big media copyright holders want to have it both ways then. They get to apply federal law to extend the copyright term beyond 56 (28+28) years and then they get to claim that those same grandfathered pre-1976 works are not subject to federal DMCA provisions.

    If federal law shouldn't apply then we should strip all post-1976 federal provisions from the copyright of older works. From Wikipedia here are the federal laws that would be nullified:

    Copyright Act of 1976 - extended term to either 75 years or life of author plus 50 years; extended federal copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law
    Berne Convention Implementation Act of 1988 - established copyrights of U.S. works in Berne Convention countries
    Copyright Renewal Act of 1992 - removed the requirement for renewal
    Uruguay Round Agreements Act (URAA) of 1994 - restored U.S. copyright for certain foreign works
    Copyright Term Extension Act of 1998 - extended terms to 95/120 years or life plus 70 years
    Digital Millennium Copyright Act of 1998 - criminalized some cases of copyright infringement

    After stripping away these provisions a work created before 1976 w

  • Wouldn't this finding also mean the 1000-year federal extension on copyrights would not apply? Further, wouldn't jurisdiction enter play from all angles, such as location of the uploader, location of the server, location of the company being sued, and of the rights owner?
  • by PortHaven (242123) on Thursday April 25, 2013 @11:48AM (#43547265) Homepage

    Seriously, so basically, the old copyrighted works gain the extended protections of the Federal laws...BUT NOT the responsibilities and protections to the people.

    Do you ever get the feeling that Congress just does what they're paid to do?

  • by Sloppy (14984) on Thursday April 25, 2013 @12:08PM (#43547455) Homepage Journal

    US Code Title 17 section 1201(a)(1)(A) says "No person shall circumvent a technological measure that effectively controls access to a work protected under this title" and then goes on to commit other atrocities against the people and industry. Am I to understand that this court has just said that works copyrighted prior to 1972-02-15, would not count as "works protected under this title"?

  • to comply with all the laws and this is the thanks you get.

    Sometimes it's just easier to higher an assassin.

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