• by Wendy Davis  @wendyndavis, February 21, 2017

The online video platform Vimeo is urging the Supreme Court to reject Capitol Records' request to revive a battle over music recorded before 1972, including tracks by acts like The Beatles, Beach Boys and Nat King Cole.

The dispute centers on Web companies' protections from copyright liability when users upload old music. The Digital Millennium Copyright Act contains "safe harbor" provisions that broadly protect Web companies from liability when users uploaded pirated tracks, provided the companies remove the material at the copyright owner's request. But there's a debate over whether those safe harbors apply to music recorded before 1972.

Capitol says the answer is no, arguing that the Copyright Act says the DMCA doesn't “annul” or “limit” copyright protections that existed in individual states for music recorded before 1972.

A federal appellate court in New York ruled against Capitol on that point. A three-judge panel of the 2nd Circuit Court of Appeals ruled last year that Capitol's interpretation of the law didn't make sense given the overall framework of the DMCA, which enables Web companies to allow users to post content that hasn't been vetted.

The judges suggested in the opinion that Capitol's interpretation of the law would leave companies like Vimeo without any good options. "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," the appellate judges wrote.

Capitol recently asked the Supreme Court to hear the case. Vimeo counters that there is no reason for the Supreme Court to review the 2nd Circuit's decision.

"Congress enacted the DMCA to protect copyright holders from online piracy while encouraging the robust expansion of online services," Vimeo argues in papers filed late last week. "As the court of appeals correctly reasoned, it would make no sense for Congress to relieve service providers of the affirmative duty to monitor user uploads for songs by U2, Elvis Costello, Radiohead, Coldplay, Adele, Beyoncé and Norah Jones only to impose that same onerous burden sub silentio as to songs by 'The Beatles, The Supremes, Elvis Presley, Aretha Franklin, Barbra Streisand, and Marvin Gaye.'"