The three companies are asking the full federal appellate court in New York to rehear a decision of a three judge panel that pre-1972 recordings are subject to the safe harbor provisions of the DMCA, even though the federal copyright act does not protect those recordings.
The petition relates to a copyright infringement lawsuit Capitol Records, Caroline, Virgin, EMI, Stone Diamond and Jobete Music filed against video sharing site Vimeo in 2009.
The music companies weren’t happy with Vimeo hosting copyright infringing material uploaded by users to its website. Vimeo argued that it was entitled to safe harbour protection under the DMCA, with the labels opposing the ruling.
In June, the federal appeals court ruled that Vimeo was indeed protected under the DMCA for pre-1972 recordings uploaded by users.
It overturned a previous ruling that since pre 1972 recordings fell under state laws rather than federal copyright law, Vimeo wasn’t protected by the DMCA.
The decision was made due to the “heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings,” that Vimeo would incur, or “potentially crushing liabilities under state copyright laws.”
“It is not as if pre-1972 sound recordings were sufficiently outdated as to render the potential liabilities insignificant.”
The judge continued: “It is not as if pre-1972 sound recordings were sufficiently outdated as to render the potential liabilities insignificant.”
Capitol et al. have challenged the ruling and major record company trade association RIAA, indie group A2IM and independent label Concord have support their motion by filing an Amicus Brief.
Many of the RIAA and A2IM’s members own sound recordings that were created before February 15th 1972, with Concord owning approx. 27,000. Among those are releases by Creedence Clearwater Revival, John Coltrane, Miles Davis, and the Staple Singers.
The three firms want to protect those copyrights from being able to hide behind the US’ safe harbour laws found in the DMCA, that allows digital platforms like Vimeo to be protected from being sued every time one of their users commits copyright infringement.
Richard Burgess, A2IM CEO said: “This unfortunate decision extends the potential for safe harbor abuse to pre-72 recordings without offering any additional protections to pre-72 copyright owners.
“In making this decision, the court effectively endorsed the transfer of even more value from artists and owners of recordings to digital services.”
As stated in the brief: “RIAA and A2IM members, including Concord, depend on copyrights, under both federal and state law, and other state-law rights, to protect the valuable recordings they have created (in collaboration with musical artists and other creators) and those in which they have invested.”
You can read the filing through here.
Music Business Worldwide