Capitol Records Wants New Hearing In Copyright Battle Over Golden Oldies

Capitol Records is asking a federal appellate court to reconsider a ruling that granted Web companies protection from copyright liability when users upload old music.

The decision, issued last month, "disrupts the legal status of every single pre-1972 sound recording," and conflicts with decisions issued by other judges, Capitol argues in papers filed Thursday with the 2nd Circuit Court of Appeals.

The ruling stemmed from a seven-year battle between Vimeo and Capitol Records over clips uploaded by users. Capitol argued that Vimeo was responsible for copyright infringement when users uploaded clips that incorporated copyrighted music.

Vimeo countered that 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.

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But Capitol Records said the DMCA doesn't apply to music that was recorded before 1972. The company's argument hinges on language in the Copyright Act stating that the DMCA doesn't “annul” or “limit” common law copyright protections for pre-1972 sound recordings.

Digital rights organizations, including the Electronic Frontier Foundation, sided with Vimeo on the question. The EFF argued in friend-of-the-court papers that Congress enacted the safe harbors to enable companies to allow users to post material dynamically. If the safe harbors don't apply across the board, companies would have to vet all clips in advance, to make sure that they don't include pre-1972 recordings, the EFF and other Vimeo supporters said.

U.S. District Court Judge Ronnie Abrams in New York accepted Capitol's argument and granted partial summary to the company for videos that allegedly infringed pre-1972 recordings.

Last month, a three-judge panel of the 2nd Circuit reversed Abrams, ruling that Capitol's interpretation of the law "would defeat the very purpose Congress sought to achieve."

"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.

Capitol is now asking the entire 2nd Circuit to re-hear the case. "The panel, with little attention to statutory text or history ... dramatically unsettled long-established property rights in pre-1972 recordings," the record label argues.

The company also says the recent ruling conflicts with a decision issued by a state appeals court in New York, in a matter involving Grooveshark. The Appellate Division, First Department of the Supreme Court in New York ruled in that matter that the DMCA's safe harbors don't apply when users upload songs recorded prior to 1972.

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