The ongoing legal battle to protect music recorded before 1972 could be taking a new twist this year as Capitol Records takes the fight all the way to the U.S. Supreme Court. In its recent petition for writ of certiorari, Capitol Records is asking the high court to determine whether the Digital Millennium Copyright Act (DMCA) §512(c) safe harbor provision applies to pre-1972 sound recordings, a decision that could send shockwaves through the music and digital industries.
The Capitol Records case first started with the social media trend of posting “lip dub” videos on Vimeo and other similar video sharing sites. Vimeo users recorded themselves dancing and lip-syncing to popular songs by artists such as The Beatles, The Beach Boys and Nat King Cole, and then shared those videos online, including the copyrighted song recordings.
Capitol Records and EMI sued Vimeo in 2009, claiming the site and its users were infringing on their rights in the “lip dub” videos, many of which used sound recordings of songs made before 1972. However, Vimeo argued that it was protected by the safe harbor provision of the DMCA, which gives internet service providers some protection from liability for their users’ actions. Although the DMCA and other federal copyright protections do not apply to pre-1972 sound recordings, which are subject to state copyright laws, Vimeo asked the court to carve out a specific exemption for the safe harbor provision to apply in this case.
This past July, the 2nd Circuit agreed and sided with Vimeo, finding the federal safe harbor provision to “implicitly” include protection from user infringement of state copyright laws, despite specific DMCA language limiting such protection from preempting state laws and remedies. Essentially, the court extended a federal law defense to an area of law otherwise completely governed by state law. The appeals court denied a rehearing of the issue in late August, resulting in Capitol Record’s writ to the Supreme Court, asking the court to determine if the 2nd Circuit’s ruling was an error.
In its petition, Capitol Records estimates that music theft costs the industry roughly $2.7 billion each year, arguing that this adversely impacts owners of pre-1972 recordings, who do not enjoy federal copyright protections, but may now be unfairly subject to federal copyright defenses and exceptions. Since pre-1972 sound recordings are only protected by state law, Capitol Records argues that the immunity afforded under the DMCA, a federal law, does not and should not apply.
Additionally, Capitol Records argues that the 2nd Circuit decision creates an issue split between state and federal courts that could lead to “wasteful forum-shopping behavior.” But perhaps more importantly, Capitol Records contends that the decision specifically diminishes legal copyright protections “where they are most vulnerable” for the owners of pre-1972 recordings, including among them “works of immense cultural and commercial significance” like those of The Temptations and The Supremes, Miles Davis, Ella Fitzgerald, Frank Sinatra, and Elvis just to name a few.
Although the final implications of the Capitol Records suit remain to be seen, President Obama’s former solicitor general Don Verrilli recently told The Hollywood Reporter that he believes there is a good chance the Supreme Court might take on the case this term, which would provide more legal clarity in this area of law. However, whether or not the Supreme Court decides to grant cert, it is important to note that this suit reflects an increase of litigation surrounding pre-1972 sound recordings, with more and more pre-1972 recording owners going to court over the unpaid and unauthorized use of their tunes. The current exclusion of older music from federal copyright law often makes it harder for these artists to be paid for their contributions to musical culture and generally their only recourse is to seek protection of their rights under state law.
One example of the current litigation surge to preserve rights under state laws are the several class action lawsuits filed by Flo & Eddie of The Turtles, best known for their 1967 hit, “Happy Together.” In 2014, the duo filed litigation against internet radio services SiriusXM and Pandora over the public performance rights to their songs. Flo & Eddie sued under various state laws in New York, California and Florida, arguing that broadcasters needed authorization to play their songs and demanding proper compensation. After victories at the district court level, Flo & Eddie have been successful in garnering attention to this issue, especially with SiriusXM proposing a $99 million settlement earlier this November shortly before trial was scheduled in the California lawsuit.
Needless to say, these lawsuits have been an eye-opener to many who assumed the performance of older sound recordings didn’t require authorization. After all, broadcasters commonly perform the early works of groups such as The Beatles and The Rolling Stones without authorization, taking for granted that publicity is all that’s given to recording artists. But with Flo & Eddie’s success on their suits in the district courts, other record labels followed their lead and began filing similar litigation, with SiriusXM and Pandora also facing lawsuits from the Recording Industry Association of America (RIAA).
If the courts’ decisions in Flo & Eddie’s New York and California litigations are ultimately upheld after all appeals are concluded, it would mean that broadcasters and terrestrial radio operators, and maybe even restaurants, bars and sports stadiums, will have to negotiate for the right to play pre-1972 recordings, instead of relying on blanket licenses. In the long term, these rulings in favor of pre-1972 recording owners could cause SiriusXM, Pandora and others in the tech industry to react by lobbying Congress for new laws to cover pre-1972 recordings. In fact, Pandora has stated that it would support any move toward a “full federalization” of pre-1972 sound recordings” and with Congress in the process of reviewing a proposal to modernize the Copyright Office, music licensing issues are sure to be reviewed for update as well. Either way, it seems this hot button issue will likely be addressed one way or another, though whether through litigation or legislation remains to be seen.