Social media and user generated sites could be forced to scour their sites for uploads of pre-1972 song recordings, after a New York state appellate panel ruled in favor of UMG in its suit against Grooveshark over the posting of popular songs including Buddy Holly’s “Peggy Sue” and Chuck Berry’s “Johnny B. Goode.”
A five-judge panel of the New York Supreme Court’s appellate division, in a ruling issued on Tuesday, concluded that such classic music was not covered by safe harbor provisions of the Digital Millennium Copyright Act, which, under certain conditions, shields Internet providers from liability if they promptly remove copyrighted works when they are given notice of specific cases of infringement.
Grooveshark, operated by Escape Media Group, allows users to upload songs, and they are then searchable on Grooveshark servers by other users for streaming. Although Grooveshark has large-scale agreements with owners of sound recordings, it cannot be sure that everything uploaded does not infringe.
So it has relied on the DMCA under the presumption that it covered recordings before 1972. But that was the year that Congress set for sound recordings to be protected by federal copyright, with the law not applying to works made before then. UMG argued that its pre-1972 recordings were protected by common law copyright, and that the 1998 DMCA did not apply. They cited a provision in the Copyright Act that declared that pre-1972 common law copyrights would not be limited or annulled.
“The statutory language at issue involved 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 judges wrote, adding that it was “not unreasonable” to “reconcile the two by concluding that Congress intended for the DMCA only to apply to post-1972 works.”
The judges added that “it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this court to do so by fiat.”
In a statement, Grooveshark vowed to appeal. It said that the court’s decision, “if it stands, will significantly undermine the safe harbor protections of the Digital Millennium Copyright Act and may severely disrupt the operations of all Internet service providers who, like Grooveshark, permit access to user-generated music content. As a result, Grooveshark intends to appeal the Court’s decision and to seek legislative action on this critical issue, not only for its own interests but for the industry as a whole.”
The New York judges did note that their decision conflicts with a 2011 federal court ruling, in Capitol Records’ case against MP3 tunes, that the reach of the DMCA extended to works before 1972.