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The Supreme Court has denied cert in the case of Capitol Records v Vimeo, leaving in place the holding of the Second Circuit Court of Appeals that video-hosting site Vimeo was shielded by the “safe harbors” of the DMCA when the service and its users made infringing use of sound recordings fixed prior to February 15, 1972. In general, this is a victory for the internet industry, parties who favor “safe harbors,” and parties who disfavor copyright; but there’s a lot more to this story than meets the eye.
On the surface, we have Vimeo users lip-synching to famous songs by The Beatles, Beach Boys, etc. and posting their videos. Harmless fun. What’s the big deal? The big deal in this case—and not only in this case—is that prior to the 1970s, U.S. copyright law was partly a patchwork of state laws. Among the goals of the 1976 Copyright Act was to federalize nearly all of copyright under a single, uniform system.
Concurrent with these developments was the addition of sound recordings to federal protection in 1972, but for reasons that remain unclear, Congress left recordings fixed prior to Feb. 15, 1972 under the protection of state laws with everything after that date covered by federal statute. In 2011, the USCO filed a report requested by Congress on proposals to absorb pre-72 recordings into the federal system in which the Register states, “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.” In fact, these pre-1972 recordings are the only category of copyrightable works subject to this kind of exception, and it goes without saying there were a lot of still-valuable sound recordings made before this date.
At issue in the Vimeo case was the question of whether or not the liability shield provisions in the DMCA (§512 of the federal copyright law) apply when the work allegedly infringed is a pre-1972 sound recording. Proponents on the internet side say that it should be obvious that the DMCA was intended to apply universally, and that’s more or less what Vimeo argued and what the Second Circuit concluded. Unfortunately, it’s not that simple.
Although this is arguably a problem for Congress and not the courts, the fact remains that the ruling as it stands leaves the rights holders of these recordings in copyright limbo—or perhaps copyright purgatory. As noted in an earlier post, citing the work of Stephen Carlisle, owners of pre-1972 recordings are trapped between §301(c) and §512 of the Copyright Act, with the former explicitly stating that their works are not protected by federal statute but the latter interpreted by the Second Circuit to mean that they are limited by federal statue from enforcing their rights against an ISP.
The technological developments during the 22-year gap between passage of the Copyright Act and the DMCA have created this disparity, and Congress should probably fix it. As mentioned, the proposal to fold this class of sound recordings into the ambit of the federal statute and the above-cited report by the USCO favors this approach. In fact, the report cites that the beneficiaries of this change would include librarians and archivists, who are frequently at odds with copyright. “While many librarians and archivists are dissatisfied with the scope of the federal statutory privileges enjoyed by libraries and archives, these exceptions and limitations (sections 107 and 108 in particular) provide more certainty and, in general, more opportunity than state laws to preserve and make available sound recordings from many decades past,” the Register’s report states. This report further argues that the primary concern of the rights holders of these recordings (i.e. creating new ambiguities) could be remedied by properly articulated statute. For now, the decision of SCOTUS to decline hearing Capitol Records v. Vimeo leaves in place considerable ambiguity, and perhaps this will prompt further efforts to petition Congress to unify all sound recordings under a single system.
© 2017, David Newhoff. All rights reserved.