Court Rules Pre-1972 Recordings are Not Covered by the DMCA…

Five minutes ago, Grooveshark CEO Sam Tarantino admitted to being ‘literally broke‘.  But this company’s legal bills are about to expand: according to court paperwork just received by Digital Music News, the Supreme Court for the State of New York (Appellate Division) has now ruled that pre-1972 recordings are not covered by the Digital Millennium Copyright Act (DMCA), thereby nullifying an earlier ruling in favor of Grooveshark.

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The decision, in favor of litigant Universal Music Group, was at times a fairly dry read of the DMCA language itself, not to mention the broader Copyright Act.  But the opinion also weighed the intent of the legislation when enacted by Congress in 1998, and referenced specific details and plans related to pre-1972 considerations.  The conclusion, a sharp reversal from an earlier, lower court decision (not to mention the finding in Capitol Records vs. MP3tunes), was that if Congress meant the DMCA to cover pre-1972 recordings, they would have explicitly stated that.

Indeed, the court strongly interpreted Congressional plans to eventually expand the DMCA beyond 1972 as an indication that those dates aren’t covered right now.  “The statutory language at issue involves two equally clear and compelling Congressional priorities: to promote the existence of intellectual property on the Internet, and to insulate pre-1972 sound recordings from federal regulation,” the opinion asserted.

“As stated above, it is not unreasonable, based on the statutory language and the context in which the DMCA was enacted, to reconcile the two by concluding that Congress intended for the DMCA only to apply to post-1972 works.”

All of which represents a very serious setback for Grooveshark and its parent, Escape Media Group, whose lawyers have always argued that the DMCA protected essentially any copyrighted song.  This tosses that notion into the trash, and deeply compromises the basis of Grooveshark’s loophole-heavy model.

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But this also applies to all DMCA-dependent models, including YouTube, and could gut the very core of the statute.  This is a state-level decision, but if applied more broadly, it would essentially throw the onus to validate every uploaded piece of music back onto the sites themselves.  Indeed, this theoretically allows anyone with pre-1972 content to sue on a state level, which should make everyone — including Google — very, very nervous.

Grooveshark is likely to pursue an appeal on the decision, according to one legal source.

The full decision, here.  

Pictured: 1972 Cadillac Coupe Deville (image by ‘That Hartford Guy,’ licensed under Creative Commons Generic Attribution 2.0)

11 Responses

    • Visitor

      “(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing


      (B) does not receive a financial benefit directly attributable to the [*2]infringing activity”

      Imagine, if Google had to play by these rules…

      • Visitor

        Which reminds me…

        I just googled Eric Schmidt’s new book andyou know what?

        The top result is NOT the Pirate Bay!

        In fact, the Pirate Bay is not at all among the search results.

        But perhaps Mr. Schmidt’s book just isn’t good enough for the Pirate Book.

        Even stranger, however, is the fact that you can’t read it for free at Google Books!

        Isn’t that weird — in this digitial age, and all?

        NO EBOOK AVAILABLE, it says!

        See for yourself:

    • Paul Resnikoff

      Hey thanks. It’s posted in the main story now, so take your pick.

  1. Jeff Robinson

    Wow, if those guys actually a ‘dinosaur’s’ business model, then maybe they could afford to litigate this.

    Looks like the old industry wins again.

    Put these idiots in jail.

    • Visitor

      I agree, it would be great to see the heads of Grooveshark, Google, Pirate Bay and every other scumbucket company that makes billions selling ads and/or supporting mob and terrorist activity behind bars!

  2. Sheriff's In Town

    OK, so… “Light My Fire” recorded 1967 is in violation – no DMCA needed?

    • Bandit

      In theory you may bring a common law copyright lawsuit in NY and a defendant can’t use DMCA safe harbor as a defense.

      You still have to prove all elements of infringement or at least contributory infringement that is required by NY state law

  3. Satan

    What a field day for the politicians and lobbyists on K street.

    My minions are booking appointments with congresspersons right now to discuss this little problem.

  4. Visitor

    If this decision stands, the implications are enormous and extend far beyond Grooveshark. Expect Google in particular to throw lots of money and effort into 1) helping Grooveshark appeal the decision, if they aren’t already and 2) changing the Copyright Act and/or DMCA to specifically include pre-72 recordings.