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Universal pushes for summary judgement in Grooveshark pre-1972 case

By | Published on Monday 29 September 2014


If all that talk last week about the complexities of American copyright law when applied to pre-1972 sound recordings got you all excited (and I can’t imagine why it wouldn’t) well, what a way to start the week. Yes, developments in another ongoing lawsuit centring on very similar issues. You lucky, lucky, lucky, lucky people.

So yes, US-wide federal copyright law only directly applies to sound recordings made since 1972, with records made before that date protected by state copyright laws instead. Which has caused all kinds of quandaries over whether or not 1990s federal legislation dealing with various matters relating to music delivered through satellite and internet channels could or should apply to pre-1972 recordings. And, if not, what the hell does state law, mainly written pre-web, think about various web-based issues?

Last week the specific question being asked – via a lawsuit involving satellite radio firm Sirius – was whether satellite and internet radio services are obliged to pay the labels royalties for using pre-1972 recordings, given that the framework for such royalties is set out in federal law. Today – via an ongoing legal battle between the majors and Grooveshark – the question is whether or not federal safe-harbours that protect digital operators which inadvertently (or perhaps that should be ‘inadvertently’) infringe copyright should apply to pre-1972 records.

Quick recap. Grooveshark works like an audio version of YouTube, in that users are invited to upload MP3s to its server which other users can then listen to on demand. If the labels which own the uploaded recordings object to their content being uploaded – and most do – they can issue takedown notices to have the content removed. Grooveshark argues that because infringing content is uploaded by users, and because the website offers labels the option to have content removed, the company is not liable for infringement because of the safe harbours in the US Digital Millennium Copyright Act.

And it is probably right about that, given how most courts have interpreted the DMCA safe harbours. But the labels argue that Grooveshark is exploiting a loophole in the law, because we all know that users will re-upload tracks as soon as the streaming company enacts any takedown, which means the service can offer a pretty comprehensive catalogue of music at any one time despite lacking licences from most record companies and many music publishers. And for all Grooveshark argues its operation is no different to that of YouTube, Grooveshark has not developed a ContentID-like system to help rights owners monitor music uploaded to its servers.

But the music industry’s lawyers aren’t confident that the loophole argument would work in court (the matter is, instead, with the industry’s lobbyists, who want the DMCA revised to put some more obligations on the digital companies). However, Universal’s lawyers came up with some loopholes of their own, noting that the Grooveshark catalogue has records in it that pre-date 1972, and surely the federal DMCA safe harbours cannot apply to state copyright-protect works?

At first instance in 2012 a New York judge did not concur with the majors, arguing that having DMCA safe harbours only applying to post-1972 recordings would “spawn legal uncertainty” for digital firms relying on the federal laws for protection. But on appeal last year that ruling was overturned, with appeal judges saying that, in fact, “Congress explicitly, and very clearly, separated the universe of sound recordings into two categories, one for works ‘fixed’ after 15 Feb 1972, to which it granted federal copyright protection, and one for those fixed before that date, to which it did not”.

Fast forward to now, and with Grooveshark’s request to take this case to the higher Court Of Appeals denied, Universal is pushing for a summary judgement in its favour. According to the New York Law Journal, the major’s court filing earlier this month read: “There is no dispute that UMG is the owner of the pre-1972 recordings at issue, and that [Grooveshark] has infringed UMG’s common law copyrights in those recordings by streaming copies of these works … without any authorisation or license to do so”.

Grooveshark’s ongoing infringement, Universal’s legal papers go on, is “part of its premeditated business strategy to exploit the popular sound recordings owned by UMG and other record labels in order to attract users to Grooveshark without paying any licensing fees”. This, the legal men argue, is threatening “to destroy the very lifeblood of UMG’s business”.

For its part, Grooveshark is still fighting. Its current argument seems to be that, if the safe harbour clauses of the DMCA do not apply to pre-1972 catalogue, then court time needs to be given to what New York state laws say about Grooveshark’s business model. Of course state laws directly say very little about the matter, so that would require arguments from both sides as to why, or not, Grooveshark’s operations are straight copyright infringement without the DMCA.

Meanwhile, says Grooveshark in its filing, Universal’s litigation “reflects an unabashed attempt” by the major to force digital start-ups “out of business” by “exploiting what [it] perceives to be a loophole in the federal statutory scheme that provides safe harbour protection” to digital companies.

A final ruling in this case could have impact on both the other pre-1972 lawsuits, and on how web firms that allow users to upload audio and video content to their servers go about directly monitoring (or not) those uploads.