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Universal has another go at targeting Grooveshark with pre-1972 technicality

By | Published on Monday 14 January 2013


Universal’s first lawsuit against Grooveshark returned to court last week, as the mega-major again tried to convince judges that it should be able to use a technicality in US copyright law to hold the often controversial streaming music platform liable for copyright infringement.

As much previously reported, Grooveshark is different to most other streaming music services in that it allows users to add music to its libraries, making it more like an audio version of YouTube. However, unlike YouTube, it does not have licences with any of the majors (though it did with EMI for a time, and still does with some indies). This means that when any user uploads major label content to the Grooveshark platform, it sits in the digital firm’s library without the permission of the rights owner.

However, Grooveshark argues that it operates a takedown system, removing copyright material when made aware of it by a rights owner, and therefore avoids liability for copyright infringement, in America at least, under the US Digital Millennium Copyright Act.

The majors allege that Grooveshark is exploiting a loophole in the DMCA, because it knows that as soon as it responds to any one takedown notice, a user somewhere will replace the removed unlicensed content, assuring the digital company free access to large amounts of copyright material.

However, the US courts have not generally been kind to copyright owners who insist that slack takedown systems amount to an exploitation of the DMCA, and place rights holders in an impossible game of cat and mouse; though some key cases in this domain are still going through the motions.

Nevertheless, the majors have sought an alternative approach, and one such alternative is to sue through the state rather than federal courts specifically over pre-1972 sound recordings that can be found on Grooveshark. This is the aforementioned technicality.

In the US, federal law only started dealing with sound recording copyrights in 1972, and prior to that such matters were covered by individual State laws. As the DMCA is a piece of federal legislation, the argument goes, it can only apply to works covered by federal copyright law. The ‘safe harbour’ protections the DMCA offers to Grooveshark, therefore, can only apply to post-1972 recordings.

Judges, however, have not accepted that argument. The DMCA itself is vague on the matter, but the courts have concluded that Congress wouldn’t, when making the DMCA safe harbours law, have assumed that digital companies using those protections would know what recordings were released pre-1972 and which were released post that date. Such a conclusion on this issue was reached in the EMI v MP3tunes case, and last July when Universal tried to circumvent the DMCA by suing Grooveshark through the New York courts in relation to its pre-1972 catalogue only.

However, the mega-major is having another go. And according to Law360, a legal rep for the major told the New York state appeals court last week that lower courts had read too much into the DMCA on this issue, and that: “This court must interpret the statutes as they’re written right now”, ie if the federal act doesn’t explicitly extend its powers back beyond 1972, then the courts shouldn’t interpret it so.

However, Grooveshark’s attorneys countered that the DMCA equally doesn’t limit its reach, while arguing that allowing this technicality to be exploited would put too big a strain on any company that utilises safe harbour protection, and not just their clients. “They’re playing a high-stakes game”, Grooveshark’s lawyer said of Universal, “that will create a loophole to put competitors out of business”.

The appeals court is yet to rule. As previously reported, Universal already has a second lawsuit against Grooveshark underway, in which the major hopes to deprive the digital company of the DMCA defence by proving staff at the firm also upload unlicensed content (safe harbours would only apply if users did the uploading). Grooveshark denies that allegation.