• by Wendy Davis  @wendyndavis, March 27, 2017

In a defeat for the record labels, the Supreme Court on Monday refused to revive a battle over whether the Web company Vimeo has the same protections from copyright liability for tracks recorded before 1972 as for more recent music.

The Supreme Court's refusal left in place a 2016 decision issued by the 2nd Circuit Court of Appeals, which ruled that the Digital Millennium Copyright Act's safe harbors -- which protect Web platforms from liability when users upload pirated material -- apply to music regardless of when it was recorded.

The Supreme Court's move marks the latest development in a battle dating to 2009, when Capitol alleged in a complaint against Vimeo that some of the clips that users had uploaded to its site infringed copyright.

Vimeo argued 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.

But Capitol countered that the DMCA doesn't apply to music that was recorded before 1972, including popular tracks by groups like The Beatles and The Supremes.

The company pointed to language in the Copyright Act stating that the DMCA doesn't “annul” or “limit” state common law copyright protections for pre-1972 sound recordings.

The 2nd Circuit Court of Appeals sided with Vimeo on that point. The judges ruled that the purpose of the safe harbors was to allow Web companies to offer interactive platforms while freeing them from the obligation to monitor users' posts in advance. Excluding some material 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.

Capitol then asked the Supreme Court to hear the matter. The company argued that other courts, including an appellate court in New York, ruled that Web sites weren't protected from copyright liability when users upload music recorded before 1972. The Recording Industry Association of America backed Capitol's request, arguing that the pro-Vimeo ruling "upends the law on which the music industry has come to rely."