Safe harbor defence does not apply to pre-1972 recordings

A New York state appeals court as held that the safe harbor defence found in the Digital Millennium Copyright Act does not apply to pre-1972 recordings.

In UMG Recording, Inc. v. Escape Media Group, Inc. et al, UMG Recording, Inc. sued Grooveshark, an internet-based music streaming service, for copyright infringement, accusing it of uploading around 100,000 recordings without authorisation. Grooveshark conceded that it could not ensure that each work uploaded to its servers was a non-infringing work however, it claimed that it operated on the basis that it was shielded from infringement claims by the safe harbor provisions of the DCMA.

Many of the recordings uploaded by Grooveshark were made before 15 February 1972 which is significant as, when the US Copyright Act was amended in 1971 to include sound recordings, Congress expressly extended federal copyright protection only to recordings "fixed" on 15 February 15 1972 or after. UMG claimed that by permitting the pre-1972 recordings to be shared on Grooveshark, the defendant infringed UMG's common law copyright in those works, and that the DMCA should not apply to those recordings.

Grooveshark responded that the pre-1972 recordings sat within the safe harbor of section 512(c) of the DMCA, but UMG argued that the DMCA could not apply to the pre-1972 recordings because that would conflict with s.301(c) of the Copyright Act that nothing in the Act would "annul" or "limit" the common-law copyright protections attendant to any sound recordings fixed before 15 February 1972.

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The appeals court found that the safe harbor provisions do not apply to recordings made before 1972, as this was when Congress first recognized a federal copyright for sound recordings.

This flies in the face of previous decisions: last year, the Manhattan Supreme Court relied on the 2011 federal ruling in Capitol Records v. MP3tunes, to find "no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings."

This was reversed on Tuesday, when the appeals court said:

"It is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act." Therefore without language expressly reconciling the two provisions, the court must presume that Congress did not intend the DMCA to extend to all recordings.

The full text of the decision is here.