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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.
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.
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?
A court can easily decide these cases through careful construction of a three part test:
1) Does the interpretation give benefits to a corporation that is a large campaign contributor?
2) Does the interpretation give benefits to a corporation that is a large campaign contributor?
3) Does the interpretation give benefits to a corporation that is a large campaign contributor?
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
We are creating a set of rules and laws that serve no real usefulness for the advance of real progress.
Duh. Why do you think the copyright laws were made federal in 1972? Because by then the music business had enough money to spend on congress critters, who then created laws to keep the music business profitable.
There are two types of people in the world: Those who crave closure
Ah, but in Newspeak, 'advance of real progress' means 'securing corporate profits'.
Copyright law is now about maximizing how much companies can make.
We've always been at war with Eastasia.
Lost at C:>. Found at C.
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.
The other question is do these works qualify for DMCA protection if they are distributed in an encrypted format?
Is it just my observation, or are there way too many stupid people in the world?
Federal judges aren't elected ...
But they are appointed by elected officials.
Cynical Idealist
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.
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.
Piracy (the hijacking of boats on the high seas) was never legal. You can't define a word which means "doing an illegal act" and have it be legal or legalized.
Copyright infringement is not piracy (what in most countries still is a civil matter is not a criminal matter). Piracy in it's most liberal definition is the replication of items to look like the original but it's not the original which is also a civil matter (the states should not be in the business of protecting specific corporations) and not criminal (because society as a whole is not necessarily harmed by it)
Custom electronics and digital signage for your business: www.evcircuits.com
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?
Human progress was very slow indeed for all the centuries before "corporate profits" existed - it's not a coincidence that publically funded corporations were created during the Enlightenment. You can go too far in either direction here.
The problem we face has nothing to do with "securing corporate profits," and everything to do with the wrong people making the profits. As the need for traditional distribution vanishes, so should the traditional distributors. That's not any condemnation of the people useful to providing entertainment in the modern world making profits!
Socialism: a lie told by totalitarians and believed by fools.
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.
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."
And the enlightenment is known for far far FAR more than "creating corporations".
There were brilliant philosophers throughout history, but the Enlightenment led to the industrial revolution because, perhaps for the first time in history, there was great reward to be had for turning new ideas into products (arguably, the same thing was true during the height of the Roman Empire).
While there are certainly downsides to a system where the principal means to wealth is making a profit in the market, it's vastly better than a system where principal means to wealth is assisting the ruler in fighting his wars. The profit motive by and large strongly incentivizes both innovation and maintaining a stable, peaceful society, - as long as we keep the lid on people gaming the political system.
Socialism: a lie told by totalitarians and believed by fools.
Piracy (the hijacking of boats on the high seas) was never legal. You can't define a word which means "doing an illegal act" and have it be legal or legalized.
http://en.wikipedia.org/wiki/Letter_of_marque
Since this only applies to "sound recordings fixed before February 15, 1972", unless that same recording (the one made before 15FEB1972) was encrypted, it's a NEW recording and the DMCA applies normally.
"I do not agree with what you say, but I will defend to the death your right to say it"
to comply with all the laws and this is the thanks you get.
Sometimes it's just easier to higher an assassin.
Well, 301c also says that 'Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.' Which would seem to mean that the entirety of Title17 is inapplicable. But then there's 301e, which says 'The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder', and since (if I recall right) the extensions were supposed to meet Berne Convention standards, the exemption from title 17 may itself not apply to the extensions.
For Mickey Mouse in particular, none of the above applies, because "Steamboat Willie" isn't a 'sound recording'. But 301f has similar language, but aimed at 'works of visual art' and referencing the Visual Artists Rights Act of 1990. If that applies to motion pictures (as opposed to photography/painting/sculpture), then that's also still covered by state law, at least as far as 'rights extending beyond the life of the author'. But I haven't read the VARA.
Letters of marque did not make *piracy* legal, it made the hijacking of the boats *not piracy*.
Like civil forfeiture laws today.
FUCK YOU.
Shoes for Industry. Shoes for the Dead.
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.
The comment I replied to said:
Piracy (the hijacking of boats on the high seas)
So it was giving its own definition for piracy which letters of marque negate.
So long as it's recognized that among the historically strong profit makers and takers are those who make armaments, chemicals, drugs, along with booze and cosmetics.
Ya gots to look good and feel good while dosing against the wounds, pain, stress involved in selling explosives and guns to people who want to kill other people for power and thus wealth. Yes indeed, vastly better. And so it goes.
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.
I'm pretty sure you are wrong. While Mickey Mouse is a trademark, it is also copyrighted. And some even blame Disney for the copyright mess. Mortimer Mouse, released in 29, is still under copyright. And will be for a few more years.
Of course it shouldn't be, but it was extended once or twice.
So long as it's recognized that among the historically strong profit makers and takers are those who make armaments, chemicals, drugs, along with booze and cosmetics
You forgot slaves. Slaves were a huge source of profits throughout the Enlightenment. Spices have always been a big deal as well. But it was the solid profits to be made by pumping water out of mines, and making more efficient looms, that changed the world.
Socialism: a lie told by totalitarians and believed by fools.
Good catch. Slaves, peons, serfs, all the same. Today we call them citizens.
Yup, and the slaves be we. Consumers all, thinkers [Quiet, citizen. Thinking is oldspeak.]
Duh. Why do you think the copyright laws were made federal in 1972?
It seems to me that it never made sense that it wasn't federal before. Copyright is listed in the US Constitution as being in the federal domain, so it's one of the few areas that Congress is supposed to make laws for.