• by Wendy Davis  @wendyndavis, August 16, 2016

In a blow to the record labels, a federal appellate court said it won't reconsider its recent decision that Web companies have the same protection from copyright lawsuits for music recorded before 1972 as for more recent records.

The 2nd Circuit Court of Appeals didn't give a reason for its order, issued Monday.

The move marks the latest development in a seven-year battle between online video platform Vimeo and Capitol Records over clips uploaded by users. Capitol alleged in a 2009 lawsuit that some of those clips infringed its copyright, and that Vimeo should be held responsible.

Vimeo said it was protected by the Digital Millennium Copyright Act's safe harbor provisions, which broadly say that Web platforms aren't liable for infringement by users, as long as the sites take down infringing material upon request.

But Capitol countered that the DMCA doesn't apply to music that was recorded before 1972, including records by The Beatles, The Supremes, and Marvin Gaye. The company pointed to language in the Copyright Act stating that the DMCA doesn't “annul” or “limit” common law copyright protections for pre-1972 sound recordings.

A trial judge in New York sided with Capitol on that point. But this June, a three-judge panel of the 2nd Circuit Court of Appeals rejected Capitol's argument.

The judges ruled that the purpose of the safe harbors was to allow Web companies to offer interactive platforms without monitoring users' posts in advance. Excluding older music from the safe harbors would defeat that purpose, the judges said. "Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws," a three-judge panel of the appeals court wrote.

That decision appeared to mark the first time a federal appellate court weighed in on whether the DMCA applies to pre-1972 music. A state appellate court in New York came to the opposite conclusion in 2013, when it ruled that the safe harbor provisions don't apply when users upload songs recorded before 1972.

Capitol then asked the 2nd Circuit to reconsider its ruling. The Recording Industry Association of America backed that request, arguing in a friend-of-the-court brief that the ruling is at odds with "the history of U.S. copyright law."

The 2nd Circuit rejected the request without asking for Vimeo to respond.