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DMCA Safe Harbor May Not Apply To Old Copyrighted Works
tlhIngan writes "On Tuesday, the New York appellate court denied Grooveshark the DMCA safe harbor protection on songs like Johnny B. Goode. What happened was due to an oddity in the law, the DMCA does not apply to state-licensed copyrighted works (those copyrighted before February 15, 1972). What happened was Congress overhauled copyright law to make it a Federal matter, but all works prior to that date still come under common-law and state statutes. The end result is that Grooveshark does not have DMCA safe harbor protection for older works and may be sued for copyright infringement (barring other agreements, e.g., UMG and YouTube), even though they fully comply with the DMCA otherwise, taking down copyrighted materials. Grooveshark is a "music locker" service allowing users to upload music for others to listen to."
that corporations denied us access to our culture.
You might see music as a "product", but it's been a cultural output since the beginning of time.
Nothing that old should be covered by copyright, anyway. To give safe-harbor to those hosting new works but not those works that should be in the public domain shows that out "legislators" are batshit crazy. Only a certifiable lunatic would pass laws like the ones we have on the books.
Yeah, we all know how well "music locker" concept is. Kinda reminds me of a store called Woolworth's. You know what's remaining of that once GIANT business? Foot Locker. Oh wait, isn't THAT dead, too? No joke, Woolworth's dissolved into Foot Locker, and Foot Locker dissolved into nothing. So will be the way of ALL P2P music sharing services, like Napster, Kazaa, Kazaa Lite, Kazaa Codec Pack, Napster, and Torrent services like The Pirate Bay and Enpornium. I suggest that you move back to CDs and use your camcorder to record movies of your CD player boomboxes if you want to make backup copies. I am not even joking.
--RIAA Narc
It seems to me that every day there is a copyright story here at /. I am not complaining - I think our copyright system needs a major overhaul. But perhaps it's time for a new sub-header. Maybe split yro into copywrong and tinfoilhat?
Great warrior...hrmph! Wars not make one great.
I do not fully understand the theory of Quantum Mechanics, this being laws of nature we are all still trying to tease out of God or whatever. What is even more disturbing though is how as a human species we can create laws of such magnitude of bullshit such that "stuff" that human minds have thought up has brought us to this state with copyrights. We are creating a set of rules and laws that serve no real usefulness for the advance of real progress.
It destroys the one good thing about the DMCA.
Does that also mean (to be consistent) that earlier works don't get the federal copyright term extensions, so anyone can use (say) Mickey Mouse?
Here is my citation for all of you [citation needed] buffoons.
[citation GIVEN]
Which gets me back to thinking,
US copyright is currently bullshit. Those songs should have been public domain for 13 years already.
There is no -1 Disagree mod. Slashdot.org/faq defines mod options. USE IT.
I wonder if Run DMC uses Run DMCA?
Stuff from before 1972 should be put in the public domain. Change the law. Problem solved. No more rent seeking.
The only good part of the DMCA was that it applied a safe harbor protection - if you follow the law, and take stuff down when asked and don't openly solicit unauthorized content, you're safe.
But now apparently that protection doesn't apply to roughly half the things that could potentially be uploaded. So you have to manually review and approve any file, since you can't know whether it falls under DMCA safe harbor or not. Thus eliminating any potential benefit of the DMCA until 2044 or so, longer if they extend copyright durations again (so, longer).
So then, what's the point? It's a law that applies far too harsh penalties, outlaws modifying your own property if it's been magically declared a "protective measure" and is abused more than most tax loopholes. If the one reasonable bit about it has been struck down, well, I think it needs to be gone. And I'm sure Google et al. will be agreeing.
This decision is severely damaging.
I don't think it will be long now before suits are filed against most of the digital locker services to try to "catch" them with pre 1972 content.
And if they manage to shut down the file lockers, they will ramp up the courage to go after YouTube. And with it already proven that it is nearly completely impossible for YouTube to perfectly filter everything automatically, they will lose.
I have decided, and told my children to look at any music they are purchasing and make sure it is not copyrighted by UMG.
I am fine with buying digital music online, but I am not fine with giving any money to a company who supports policies that could destroy the internet.
Companies that try to pursue actions and decisions that cripple the internet are IMHO enemies of mankind.
But wouldn't the Copyright extension it enjoys now fall under the federal statute, or did the states grant the copyright extension too?
Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
DMCA doesn't effect them when it would limit their pre-1972 rights.
(DCMA immunity in exchange for takedown doesn't work.)
DMCA still useful for preventing defeating DRM protection devices.
We really need to overhaul these Mickey Mouse copyright rules to cover the original bargain from the Constitution.
Rending the point of the safe harbor moot in one fell swoop. If end users can put up any material that can get a provider in hot water then all end user content has to be inspected before/during upload. That's why the safe harbor provision was added. So now providers have to waste huge amounts of money/manpower fighting this?
So the 1972 federal changes did NOT extend the copyrights on older materials? I can't see how it can be both ways. All this time, everyone seems to have been working under the assumptions that all works protected under copyright had their rights extended and all that under the 1972 federal copyright changes. So their protection has been enhanced and the defense provided by the DMCA is not available because the 1972 federal copyright changes do not cover...
That's just idiotic. Another commenter said it easier I guess -- they get to have their cake and eat it too. Insane.
Article 1, Section 8, clause 8 of the US Constitution says: "The Congress shall have Power .... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
So, it should always have been under federal jurisdiction, not state. Indeed, that should make any state laws regarding it null and void due to federal supremacy.
make imaginary.friends COUNT=100 VISIBLE=false
I'm pretty sure that Mickey Mouse is a trademark, not a copyright. This might mean that anyone could release Fantasia, but only Disney could create a new work.
So you're claiming that Disney could use a "reverse passing off" theory under the Lanham Act. My understanding of the finding of the Supreme Court in Dastar v. Fox is that a trademark cannot be used to extend the term of any of the exclusive rights under copyright in a work.
If Congress has power to enact a statute, it has power to delegate the details to a regulatory agency. I'd imagine it has similar power to delegate the details to the states, as it appears to have done in this case.
Waterboarding is not torture until it was defined. Okay, I get it. Also, piracy was legal until it was made illegal. Awesome.
So big media copyright holders want to have it both ways then. They get to apply federal law to extend the copyright term beyond 56 (28+28) years and then they get to claim that those same grandfathered pre-1976 works are not subject to federal DMCA provisions.
If federal law shouldn't apply then we should strip all post-1976 federal provisions from the copyright of older works. From Wikipedia here are the federal laws that would be nullified:
Copyright Act of 1976 - extended term to either 75 years or life of author plus 50 years; extended federal copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law
Berne Convention Implementation Act of 1988 - established copyrights of U.S. works in Berne Convention countries
Copyright Renewal Act of 1992 - removed the requirement for renewal
Uruguay Round Agreements Act (URAA) of 1994 - restored U.S. copyright for certain foreign works
Copyright Term Extension Act of 1998 - extended terms to 95/120 years or life plus 70 years
Digital Millennium Copyright Act of 1998 - criminalized some cases of copyright infringement
After stripping away these provisions a work created before 1976 with one renewal would have a copyright term of 28+28 years rather than the silly 95 years we have today.
I am becoming gerund, destroyer of verbs.
Ask them why they don't sing "Happy Birthday" anymore and instead warble some made of cheer squad chant?
We live in insanity and call it normal.
Wouldn't this finding also mean the 1000-year federal extension on copyrights would not apply? Further, wouldn't jurisdiction enter play from all angles, such as location of the uploader, location of the server, location of the company being sued, and of the rights owner?
So what if UMG has used the DMCA to get pre-1972 songs removed from sites.
Wouldn't that open up a big can of worms?
Seriously, so basically, the old copyrighted works gain the extended protections of the Federal laws...BUT NOT the responsibilities and protections to the people.
Do you ever get the feeling that Congress just does what they're paid to do?
US Code Title 17 section 1201(a)(1)(A) says "No person shall circumvent a technological measure that effectively controls access to a work protected under this title" and then goes on to commit other atrocities against the people and industry. Am I to understand that this court has just said that works copyrighted prior to 1972-02-15, would not count as "works protected under this title"?
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
What would have happened to Grooveshark pre-DCMA? Since the law fails to grant 'safe-harbor' to Grooveshark (and others) for pre-1972 works, does it also mean DCMA notices for pre-1972 content are also invalid? Couldn't Groovesharks ToS include a statement that any content you upload is copyrighted by you, or falls into permitted usage (licensed, fair use, etc), they can shift the burden back to the customer and ignore a take-down notice and refer it to the customer? Isn't it generally how it worked back then?
And the enlightenment is known for far far FAR more than "creating corporations".
Seen on a poster somewhere recently:
Seems about right for what I see at our house. :)
Cheers,
"What in the name of Fats Waller is that?"
"A four-foot prune."
to comply with all the laws and this is the thanks you get.
Sometimes it's just easier to higher an assassin.
Greed and insanity are two different things.
The current copyright laws make perfect sense from the perspectives of wealthy content mills. They hire talent, use that talent to produce works, and then extract a revenue stream from those works indefinitely. This is an excellent way for rich people to get richer, and there is nothing crazy about it.
One could argue that it is unfair, of course, but not crazy.
It would appear so.
Cry 'Havoc!' and let slip the dogs of war.
FUCK YOU.
Shoes for Industry. Shoes for the Dead.
That was my thought too - the extensions to copyright do not apply to works befor 1972-02-15? On the other hand, that is a logical assumption, and should not be applied to law.
That depends on whether the Constitution recognized creators of sound recordings as "authors". The record industry would argue that before 1972, the Constitution was interpreted as not recognizing so.