Rep. Jared Polis thinks something must be done about copyright.
freshman second-term Colorado Congressman, who sold his online greeting card company bluemountain.com to Excite@Home for $780 million in 1999, introduced legislation on September 14th that seeks to simplify copyright law regarding sound recordings made before 1972.
The variation in protection from state to state hinders the ability to have a consistent business approach regarding rights ownership. The scope of protection and what would constitute acceptable use are inconsistent due to the lack of detailed precedent. Additionally, state law does not have provisions that account for modern technology, such as streaming music websites, and songs as data are increasingly easy to transmit.
But upon closer look, Polis’s bill would fail completely to address these issues. At best, it would change nothing. At worst, it would lead to more uncertainty rather than less, and give rise to a host of unforseen consequences.
Federal and state protection for sound recordings
Recorded music consists of two distinct copyrighted works: the underlying musical composition and the sound recording of that composition. US copyright law has expressly provided protection for musical compositions since 1831, but it wasn’t until 1972 that protection was extended to sound recordings. 1The New York Court of Appeals provides an impressively thorough history of sound recordings, copyright, and preemption — beginning in 15th century England — in Capitol Records v. Naxos, 830 NE 2d 250 (2005). Note, however, that federal copyright protection did not retroactively extend to sound recordings made before the passage of the 1972 legislation.
Though the federal government did not protect sound recording copyrights before 1972, states did. By the early 70s, roughly half of state legislatures had adopted criminal provisions aimed at curbing music piracy.
Prior to the Copyright Act of 1976, the federal government and the states concurrently exercised copyright power — for all types of works, not just sound recordings. 2See Goldstein v. California, 412 US 546, 560 (1973). That all changed with the passage of the 1976 Act. Congress gave the federal government exclusive authority over copyright; “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” under any state’s statutes or common law are preempted by US copyright law. 317 USC § 301(a).
Preemption and pre-1972 sound recordings
But a problem was anticipated: what would become of sound recordings made before 1972?
One way to interpret the preemption provision would be that it had no effect on pre-1972 sound recordings. Since they weren’t covered under the scope of federal protection, state laws protecting them weren’t preempted.
But the provision could be interpreted another way. In a 1975 hearing concerning the revisions that would lead to the 1976 Act, the Department of Justice raised concerns about this possibility:
This language could be read as abrogating the anti-piracy laws now existing in 29 states relating to pre-February 15, 1972, sound recordings on the grounds that these statutes proscribe activities violating rights equivalent to * * * the exclusive rights within the general scope of copyright. * * *” Certainly such a result cannot have been intended for it would likely effect the immediate resurgence of piracy of pre-February 15, 1972, sound recordings.
In other words, a court could strike down state piracy laws if it interpreted the statute this way, putting every sound recording made before 1972 into the public domain.
So Congress added § 301(c) to make it absolutely clear that this is not what it intended. At the same time, it recognized that state piracy laws did not provide protection for only a “limited time” as federal copyright law did — sound recordings gave perpetual protection. So it also put in a sunset provision to the clause, 75 years from the first day sound recordings were covered under federal law (the Copyright Term Extension Act increased that time by 20 years). 4H.R. Rep. No. 94-1476, pg 133.
Today, §301(c) provides that:
With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. 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.
This is the provision that Polis’s bill would delete. The only thing this would accomplish is reinstating the uncertainty that led to its addition 35 years ago. It would not bring pre-1972 sound recordings under federal copyright protection. And, if the DOJ’s original concerns are unfounded and courts interpret the statute to mean that state piracy laws aimed at pre-1972 sound recordings are not preempted, than Polis just gave those recordings perpetual protection.
I highly doubt Rep. Polis is looking to extend copyright protection forever.
Haste makes waste
In Polis’s rush to do something about pre-1972 sound recordings, he not only ends up doing nothing, he steamrolls over the legitimate concerns of those working on solutions.
In 2009, hearing concerns that current law addressing pre-1972 recordings can cause problems, Congress directed the US Copyright Office to conduct a study on the “desirability of and means for” bringing those recordings under federal copyright law. It specifically asked the Office to look at “the effect of federal coverage on the preservation of such sound recordings, the effect on public access to those recordings, and the economic impact of federal coverage on rights holders.”
The Copyright Office began seeking input for its study last November. 5Federal Copyright Protection of Sound Recordings Fixed Before February 15, 1972, Notice of Inquiry, 75 F.R. 67777 (Nov. 3, 2010). In this first round of comment seeking, it raised thirty potential questions about implementing federal protection for these recordings.
The questions cover preservation and access issues; economic issues, especially relating to value of recordings and ownership of rights concerns; and implementation issues, like term length and due process concerns.
To give just a few examples, the Copyright Office asks:
4. Would bringing pre-1972 sound recordings under Federal law—without amending the current exceptions—affect the ability of such institutions to provide access to those recordings? Would it improve the ability of libraries and archives to make these works available to researchers and scholars; and if so, in what way? What about educational institutions, museums, and other cultural institutions?
16. Under Federal law the owner of the sound recording will generally be, in the first instance, the performer(s) whose performance is recorded, the producer of the recording, or both. Do State laws attribute ownership differently? If so, might that lead to complications?
23. If the requirements of due process make necessary some minimum period of protection, are there exceptions that might be adopted to make those recordings that have no commercial value available for use sooner?
27. Could the incorporation of pre-1972 sound recordings potentially affect in any way the rights in the underlying works (such as musical works); and if so, in what way?
Polis’s bill addresses none of these questions. To his credit, this is quite an accomplishment — copyright legislation that everyone, from rightsholders, to downstream copyright users, to libraries, museums, and educational institutions, would agree is a bad idea.
I’m left scratching my head over how Rep. Polis can think expedience is better than comprehensive study for finding solutions, or how one can craft legislation that is so bad that it not only doesn’t solve whatever problem you’re trying to fix, it actually makes those problems worse.
Perhaps this is just business as usual for Polis, because a similar thing happened a few years ago with Colorado’s Amendment 41. The ballot measure, which Polis helped sponsor and back in 2006, was ostensibly targeted at curbing lobbyist influence, but ended up making “scholarships for children of public employees and performance awards for employees” illegal. 6John Straayer, Direct Democracy’s Disaster, National Conference of State Legislatures Magazine (March 2007). It led to a fire-fighters association indicating that it “might have to close its foundation, which had made scholarships available for fire-fighters’ children and provided funeral assistance for fire-fighters’ survivors.” When these problems became apparent, Polis and the amendment’s other sponsors said that “they didn’t really mean what it said.”
In the same way, the Sound Recording Simplification Act doesn’t mean what Polis thinks it means.
|↑1||The New York Court of Appeals provides an impressively thorough history of sound recordings, copyright, and preemption — beginning in 15th century England — in Capitol Records v. Naxos, 830 NE 2d 250 (2005).|
|↑2||See Goldstein v. California, 412 US 546, 560 (1973).|
|↑3||17 USC § 301(a).|
|↑4||H.R. Rep. No. 94-1476, pg 133.|
|↑5||Federal Copyright Protection of Sound Recordings Fixed Before February 15, 1972, Notice of Inquiry, 75 F.R. 67777 (Nov. 3, 2010).|
|↑6||John Straayer, Direct Democracy’s Disaster, National Conference of State Legislatures Magazine (March 2007).|