Friday’s Endnotes – 06/29/18

By , June 29, 2018.

‘Critics of Article 13 are Weaving a Narrative with no Relation to Fact’ — Article 13 is part of a proposed update to EU’s copyright directive and would place more responsibility on certain online service providers providing content to users to make sure that content is authorized by copyright owners. BASCA’s Crispin Hunt responds to the avalanche of hyperbolic nonsense that critics of the article are pumping out, saying, “The reality is that Article 13 is hardly revolutionary. It is a modest proposal that returns some sense of fairness and responsibility to the manner in which internet platforms operate. We have had almost 20 years of experience under the existing regime where platforms have almost no accountability to the public, and in which they are rewarded for wilful blindness and inaction.”

Supreme Court to Resolve Split Over Copyright Registrations — The Supreme Court picked up its first copyright case this term on the last day of the term. The question: given that copyright registration is required before filing a lawsuit, does the statute allow copyright owners to sue once they’ve sent their registration application to the Copyright Office, or must they wait until the Copyright Office has reviewed the application and either granted or denied registration? Courts have split on the question.

Senate Judiciary Committee Unanimously Passes Music Modernization Act — The bill previously passed the House 415-0.

IP Norms’ Dark Side — “The early legal literature on law and social norms tended to paint a rosy picture. Social norms were generally depicted as an optimal set of organically developed rules, informed by the experience of a close-knit community, and thus superior to formal law as a way to regulate behavior. Later scholars came to realize that nothing guarantees the optimality of social norms: they may perpetuate practices that no longer make sense, or they may advance the interests of certain groups but not social welfare. In such cases, formal law holds the promise of overriding suboptimal norms and moving society to a better place.”

Putting “Fair” Back in “Fair Use” — “Partly to blame perhaps for an expansion of the boundaries of fair use was the lack of a coherent economic framework for evaluating secondary uses under the ‘transformative’ concept. A new academic paper entitled Fair Use in the Digital Age by scholars at the Phoenix Center for Advanced Legal & Economic Public Policy Studies and Auburn University’s Economics Department in the Journal of the Copyright Society of the U.S.A. (65 J. Copyright Soc’y U.S.A. 1 (2018)) offers a practical economic framework closely tied to the statute, judicial precedent, and Judge Leval’s ‘transformativeness’ idea. The analysis in this article is rich, but it generally points to two key steps in analyzing fair use disputes.”

Friday’s Endnotes – 06/22/18

By , June 22, 2018.

Patent Injunctions, Economics, and Rights — Much of what Eric Claeys and Adam Mossoff say in this paper about patents applies just as well to copyright. The essay lays out “why a Lockean theory of rights supplies a more satisfying foundation for property rights and markets than consequentialist and law and economic foundations.”

The Motivations to Create — “Economists have long debated the degree to which inventive and artistic activities were either the result of instinctual urges on the part of creators, or the responses of creators to potential pecuniary rewards. Copyright and patent laws are based on a view that rewards are an important factor. In this paper we attempt to provide an empirical analysis of this question by using a recent data set covering the book production industry. We find evidence that authors publish more new books when they earned higher payments for previously written books, although at high enough levels of payment their production of new works begins to decline, consistent with a backward bending supply function.”

EU Parliament committee votes for tougher EU copyright rules to rein in tech giants — “The copyright rules, proposed by the European Commission two years ago, are designed to take account of the growing role of online platforms, forcing them to share revenues with publishers and bear liability for copyright infringement on the internet. The vote by the Legal Affairs Committee is likely to be the Parliament’s official stance as it heads into negotiations with EU countries on a common position, unless dissenting lawmakers force a vote at the general assembly next month.”

The internet apologizes… — “If you’re YouTube, you want people to register as many accounts as possible, uploading as many videos as possible, driving as many views to those videos as possible, so you can generate lots of activity that you can sell to advertisers. So whether or not the users are real human beings or Russian bots, whether or not the videos are real or conspiracy theories or disturbing content aimed at kids, you don’t really care. You’re just trying to drive engagement to the stuff and maximize all that activity. So everything stems from this engagement-based business model that incentivizes the most mindless things that harm the fabric of society.”

Friday’s Endnotes – 06/15/18

By , June 15, 2018.

Leading Artist Groups Announce Opposition To Sen. Wyden’s So-Called “ACCESS to Sound Recordings Act” — The groups write, “The CLASSICS Act would ensure that artists who created and contributed to timeless songs finally get their due and would bring much needed certainty to one of the most contentious and confused areas of music licensing today. It is the product of a lengthy, considered process stretching back over several Congresses and represents a carefully balanced compromise that virtually all stakeholders have come together to support. We are disappointed that the introduction of the ‘ACCESS Act’ was done without consulting any artist group, organization, or union who would have made it clear that the bill’s eleventh-hour introduction is not a viable solution. The ‘ACCESS Act’ would undercut the goals of the [Music Modernization Act] by cutting compensation for the older artists that it is expressly designed to benefit.”

YouTube Download Sites Throw in the Towel Under Legal Pressure — Torrentfreak reports that several streamripping sites—which allow users to convert streaming media into downloadable files—have recently shut down. The article quotes EFF in defense of streamripping services, in part because the group says, “Some creators specifically allow others to download and modify their work.” But, if a creator lets you download their work… why do you need a streamripper?

The Normalization of Website Blocking Around the World in the Fight Against Piracy Online — ITIF’s Nigel Cory has written a handy survey of recent developments regarding the increasing number of countries adopting website blocking as a remedy for online piracy. Says Cory, “A growing number of countries recognize that website blocking is a reasonable and effective tool to reduce the consumption of pirated material and to increase the consumption of legal content. Furthermore, the various approaches to website blocking and years of operations establish a range of precedents and lessons learnt that can be used by other countries that are considering enacting or revising their own regime.”

Assistant Attorney General Makan Delrahim Delivers Remarks at the National Music Publishers Association Annual Meeting — A recommended read. Delrahim states, “Music does more than that, though. It connects us, even defines us, as an American people with a shared artistic and cultural heritage. When I emigrated from Iran as a child, I didn’t even speak English. The songs on the radio and in my tape deck helped to define America for me, as they have for so many others. The Jazz Singer album by Neil Diamond is what transports me to my first memories as a child in the United States. We can’t forget that every song starts with a songwriter: Someone, somewhere, sitting at a piano, strumming a guitar, or staring at a blank sheet of paper waiting for the lyrics to flow. Songwriters are the creators that give music its first breath of life; they make it all possible. They also inspire us.”

The Forum on Internet Governance — DC folks should check out this event next Thursday featuring Jonathan Taplin, author of Move Fast and Break Things. According to the event page, “For decades major internet players like Google and Facebook have been fighting off any attempts to put guidelines in place to address criminal and abusive activity on their platforms. But now, with last years foreign interferance in U.S. elections and the recent revelations about Facebook and Cambridge Analytica discussions about the need for internet governance have come sharply into focus. The Forum will bring together a diverse group of thought leaders and subject experts to discuss the absence of safeguards on the internet and make recommendations for ensuring a safe, secure internet for everyone.”

Friday’s Endnotes – 06/01/18

By , June 01, 2018.

How Technology Is Changing Visual Art — “No doubt these tech tools make it much easier to create artwork, just as the high-quality cameras that come with today’s smartphones have turned us all into ‘photographers.’ But I believe you still need certain artistic skills to become an illustrator. You need to have a discerning eye and to be able to communicate by creating a visual vocabulary that’s uniquely your own. As an illustrator, you have to establish your point of view to solve problems and to go beyond just tracing a picture.”

Copyright and a Free Press — The US Copyright Office’s Brad Greenberg writes, “Our founding fathers saw copyright as a crucial vehicle for creating a free press. In England, the 1710 enactment of the Statute of Anne—the matriarch of copyright laws—unshackled publishers from the restrictions of a system that limited publishing to those who had received printing privileges from the Crown. Copyright law helped curb government censorship and at the same time provided new voices with economic incentives.”

FCC Asks Amazon & eBay to Help Eliminate Pirate Media Box Sales — Torrentfreak reports, “FCC Commissioner Michael O’Rielly has written to the heads of Amazon and eBay with a request to eliminate sales of pirate media boxes which illegally display the FCC compliance logo. In a letter to Devin Wenig and Jeff Bezos, O’Rielly seeks the total removal of such devices, noting that their fraudulent labeling is exacerbated by the effect they have on the entertainment industries.”

Jay-Z Triumphs in “Big Pimpin” Appeal as Egyptians Can’t Enforce Moral Rights — A long running suit appears to come to an end, as the Ninth Circuit held that the heir of an Egyptian composer could not sue Jay-Z “based solely on the fact that Egyptian law recognizes an inalienable ‘moral right’ of the author to object to offensive uses of a copyrighted work.”

Does the ACCESS to Recordings Act violate the Constitution’s Takings Clause?

By , May 30, 2018.

On May 23, without the benefit of any studies, hearings, or stakeholder input, Senator Wyden introduced the “Accessibility for Curators, Creators, Educators, Scholars, and Society to Recordings Act” (“ACCESS to Recordings Act”).1S. 2933. The bill would preempt the state and common law protections that sound recordings fixed before February 15, 1972 have always enjoyed and make them subject to federal copyright protection. In doing so, it suffers fatal Constitutional flaws.

The Fifth Amendment of the Constitution establishes that the federal government cannot take private property “for public use without just compensation,” a principle stretching back at least 800 years to the Magna Carta.2Horne v Department of Agriculture, 576 US ___ [at pg 5] (2015). The Takings Clause, as this provision is referred to, applies just as much to intellectual property, like copyright, as it does to other forms of private property.3Copyright and the Takings Clause; James v. Campbell, 104 U.S. 356, 358 (1882) (“[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.”); see also most recently Oil States Energy Services, LLC, v Greene’s Energy Group, LLC, 584 US ___ at 17 (2018) (noting decision “should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause”).

The US Copyright Office identified takings as one of the most prominent constitutional issues when it studied the federalization of pre-1972 sound recordings several years ago.4U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, Public meeting Tr. 06-03-2011 at 41 (June 3, 2011). Because federalization would entail preempting state law protection, the Office said in its final report, it “would deprive owners of vested interests currently held under state law and therefore could raise Fifth Amendment takings claims.”5U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings Report at 155 (2011). The Office explained that this shouldn’t be an issue if “the state law-based property right is replaced by a federal right of equal strength and duration.”6Id. But it does become an issue if the new federal term of protection is shorter than the existing state law term of protection.7Id.

This type of taking seems as clear a taking as the one the Supreme Court dealt with in 2015 in Horne v Department of Agriculture.8576 US __. Note that in holding that Takings Clause precedent establishing that direct appropriation of real property is a per se taking applies just as well to direct appropriation of personal property, the Court used as an example a case concerning the alleged appropriation of intellectual property—a patent—by the Government. In that case, which succeeded the Copyright Office’s analysis of the takings issue, the Court examined a Department of Agriculture regulation requiring raisin growers to give a percentage of their crop to the Government free of charge in order to maintain a stable market. It held that this regulation was a per se taking that required just compensation because “[a]ctual raisins are transferred from the growers to the Government” and thus the growers “lose the entire ‘bundle’ of property rights in the appropriated raisins.” Like the taking there, cutting off protection for sound recordings where they previously enjoyed protection under state law would cause sound recording owners to “lose the entire ‘bundle’ of property rights” in their recordings.

The CLASSICS Act, now part of the Music Modernization Act, which passed the House 415-0 and is currently in the Senate, addresses one of the more acute issues involving pre-1972 sound recordings—uncertainty surrounding the right of digital performance—through a tailored, consensus-based approach. In doing so, it avoids any takings issues by providing roughly the same right at the federal level that it preempts at the state level (albeit with more uniformity and certainty, improving things for recording artists and sound recording users). And sound recording owners would enjoy this right for at least as long as they would enjoy state protections for under current law.

Unlike the CLASSICS Act and the approach recommended by the Copyright Office, the ACCESS to Recordings Act falls far short of Constitutional requirements and would likely open the federal government up to liability for takings claims.

The bill would presumably give an owner of a pre-1972 sound recording the same general term as a post-1972 sound recording: 95 years from first publication or 120 years from the year of its creation—except, unlike the post-72 owner, the pre-72 owner would have not gotten the benefit of federal protection for that entire time, providing an unequal benefit. That also means many sound recordings would lose the property interests in their works that they currently enjoy until 2067 at some point before then. For sound recordings published between 1923 and 1930, the bill would only provide protection until December 31, 2025, and only then if the copyright owner takes affirmative steps—the bill would require that these copyright owners “engage[] in normal commercial exploitation through” that date and provide notice to the US Copyright Office that the work is subject to normal commercial exploitation. Under the ACCESS to Recordings Act, an entire class of sound recording owners would lose their “entire bundle of property rights” that they currently enjoy, without just compensation.

The serious Constitutional infirmity of the ACCESS to Recordings Act is just one of many problems with the bill, and isreflective of the bill’s lack of study and input. The Senate has the opportunity with the entire Music Modernization Act package, including the CLASSICS Act, to make significant and much needed improvements to music licensing provisions. Once these are in place, it can turn to consideration of the more challenging issues surrounding federalization of pre-72 sound recordings.

References

References
↑1 S. 2933.
↑2 Horne v Department of Agriculture, 576 US ___ [at pg 5] (2015).
↑3 Copyright and the Takings Clause; James v. Campbell, 104 U.S. 356, 358 (1882) (“[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.”); see also most recently Oil States Energy Services, LLC, v Greene’s Energy Group, LLC, 584 US ___ at 17 (2018) (noting decision “should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause”).
↑4 U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, Public meeting Tr. 06-03-2011 at 41 (June 3, 2011).
↑5 U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings Report at 155 (2011).
↑6 Id.
↑7 Id.
↑8 576 US __. Note that in holding that Takings Clause precedent establishing that direct appropriation of real property is a per se taking applies just as well to direct appropriation of personal property, the Court used as an example a case concerning the alleged appropriation of intellectual property—a patent—by the Government.

Friday’s Endnotes – 05/25/18

By , May 25, 2018.

Copyright Office Fees — The US Copyright Office has proposed a new fee schedule, with fees for registration and other services increasing nearly across the board. Read the details here.

Commentary: All music creators should be paid for their work — Singer and songwriter Roseanne Cash imparts her thoughts on music legislation pending in the Senate. “Ensuring payment for airplay of pre-1972 music is a question of basic fairness and economic justice – bringing an end to a vast windfall these services did nothing to deserve and making sure royalties get to the artists who earned them. For many older greats, the CLASSICS Act is also a lifeline: the difference between touring until they simply can’t go on and being able to get off the road with dignity and basic economic security. And finally, it’s a question of respect — and not just Aretha’s song for which she surely deserves to be paid — respect for our musical roots and the long lines of influence and inspiration that flows back through time and melody to the greats who have inspired us all.”

As Music Modernization Act Enters Senate, Anti-Copyright Activists Come Out Of The Woodwork (Column) — Rob Levine is fired up about the CLASSICS Act. He writes, “So how much would this law actually change? It would force ‘noninteractive services’ like Pandora and SiriusXM to pay rights holders and performers for the pre-1972 recording they use — much as they already pay for later recordings. They can do this under a statutory license, at a rate that’s set by the Copyright Royalty Board. This law would also apply to interactive services like Spotify and Apple Music. But it’s hard to know how much of a difference it would make, since they already need to license rights to later recordings as well as reproduction rights — which almost all state laws protect anyway. In less complicated terms, a few big companies will pay artists and labels a bit more money. That’s it.”

Canada PM Trudeau responds to artist advocate Miranda Mulholland — In a tweet, Mulholland shares Trudeau’s positive response to a letter calling for reform to the copyright board signed by over 100 artists. In true Canadian fashion, Trudeau begins his letter with an apology.

Friday’s Endnotes – 05/18/18

By , May 18, 2018.

Antipiracy Enforcement in Malaysia and Jakarta — Researcher Brett Danaher shares some takeaways from a recent trip he took. “If one simply reads online forums, one might get the impression that the debate over piracy is largely about executives at large studios trying to secure even higher paychecks. That was not who I met in Jakarta. I met independent Indonesian film producers (producing films smaller than Hollywood by orders of magnitude) who felt that piracy was one of the biggest limiting factors in growing their national film industry.”

Music Modernization Act Gains Momentum in Senate — Ted Johnson and Paula Parisi of Variety report on Tuesday’s hearing in the Senate Judiciary Committee featuring, among others, Smokey Robinson. The Senators on the Committee all seemed supportive of the bill, which would make a number of significant reforms to laws governing music licensing.

Congress, end a longstanding injustice for legacy music creators — “Artists that include the hitmakers of Motown, the people who gave birth to rock ‘n’ roll and the legends of jazz and blues have been forced to chase large, profitable music services across multiple state courts in lengthy and expensive litigation just to get basic compensation for their valuable catalogs. While litigation has resulted in some payments to artists, the process is long and costly, while the payments themselves are temporary and do not include all pre-’72 music creators or recordings.”

Fourth Estate Public Benefit Corp. v Wall-street.com, Brief for the United States as Amicus Curiae — A well-written brief from the U.S. Solicitor General recommends that the Supreme Court grant cert in this case, which concerns when the registration prerequisite for filing a civil action for infringement of a copyright is satisfied. The brief also argues that the requirement is only met after the Register of Copyrights has acted on a registration application, either granting registration of a work or denying registration. Some courts have held that the requirement is satisfied once a registrant has submitted the registration, deposit, and fee to the Copyright Office but before the Register takes any action. While the Court isn’t bound to follow the recommendation of the Solicitor General, it historically does so around eight out of ten times.

Google’s Selfish Ledger is an Unsettling Vision of Silicon Valley Social Engineering — “The Selfish Ledger positions Google as the solver of the world’s most intractable problems, fueled by a distressingly intimate degree of personal information from every user and an ease with guiding the behavior of entire populations.”

Friday’s Endnotes – 05/11/18

By , May 11, 2018.

Senate Introduces Music Modernization Act — Two weeks after the House passed its version of the bill 415-0, the Senate has introduced the Music Modernization Act, a legislative package of critical music licensing reforms. The Senate Judiciary Committee is holding a hearing on the issues next Tuesday, with Smokey Robinson among the witnesses.

Copyright Office Invites Creative Solutions — The Copyright Office’s Frances Carden writes, “The buzz around here has been big–you may remember my April post about the establishment of the Copyright Modernization Office (CMO) that directs all modernization initiatives across the U.S. Copyright Office–and it’s getting bigger and bolder.”

Invisible Labor and Digital Utopias — “As a woman who writes online about technology, I have grown far too tired of ‘permission-less-ness.’ Because ‘open’ doesn’t just mean using my work for free without asking. It actually often means demanding I do more work – justify my decisions, respond to accusations, and constantly rethink how and where I want to be and am able to be and work on the Internet. So I’ve been thinking a lot, as I said, about ‘permissions’ and ‘openness.’ I have increasingly come to wonder if ‘permission-less-ness’ as many in ‘open’ movements have theorized this, is built on some unexamined exploitation and extraction of labor – on invisible work, on unvalued work. Whose digital utopia does ‘openness’ represent?”

Music as a Matter of Law — “What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where multiple features of eligible subject matter typically are eligible for protection.”

No, the CLASSICS Act is not a “term extension”

By , May 07, 2018.

On April 25, the U.S. House of Representatives passed the Music Modernization Act, H.R. 5447, by a vote of 415-0. The comprehensive bill “updates music copyright laws by creating a new compulsory blanket licensing system for mechanical works, updating the rate standards applicable to music licensing, modifying the rate setting process in the Southern District of New York, providing copyright royalties to pre-1972 artists, and ensuring that producers, mixers, and sound engineers are able to receive compensation for their creativity.” 1H. Rep. No. 115-651 (2018). The unanimous vote is a reflection of the extraordinary consensus among all parts of the music industry, including digital service providers.

Following passage, Stanford professor and Durie Tangri partner Mark Lemley tweeted:2“House unanimously passes copyright reform act that unfortunately includes term extension for sound recording performance rights for as long as 144 years.”

https://twitter.com/marklemley/status/989279882159931392

He was referring to Title II of the bill, an amended version of the CLASSICS Act (H.R. 3301), which would mandate royalty payments for sound recordings fixed before February 15, 1972, for certain digital performances. His point was echoed by Krista Cox, director of public policy initiatives at the Association of Research Libraries, who wrote in Above the Law, “The biggest issue is that CLASSICS extends copyright term for sound recordings beyond what a sound recording today would be granted.”

These statements are strikingly incorrect.

Pre-1972 Sound Recordings

First, a bit of background. There are two relevant copyrights involved in music: one for the musical composition—the “melody, rhythm, harmony, and lyrics, if any”3Compendium of U.S. Copyright Office Practices, Third Edition, 802.3. —and another for the sound recording—a recorded performance or production of a musical composition. It’s also helpful to identify the most relevant rights involved in the exploitation of each copyright: for the musical composition, those rights include reproduction and distribution, mechanical reproduction, and public performance; for the sound recording, they include reproduction and distribution, and digital performance.

The reproduction and distribution of musical compositions was protected under the original Copyright Act of 1790.4Musical compositions in printed form were protected as “books” under the 1790 Act. Congress recognized musical compositions as a discrete category beginning in 1831. The public performance right for musical compositions was added in 1897. A mechanical reproduction is a copy of the musical work onto an object or device that requires mechanical means to be perceived. The term originally referred to piano rolls, but also applies when a musical composition is “copied” onto a sound recording. The 1909 Copyright Act expressly provided for a right of mechanical reproduction for musical compositions.

Copyright protection for sound recordings took a bit longer, and that history creates the issue that the CLASSICS Act addresses. Unlike musical compositions, sound recordings were not initially protected by federal copyright law as part of any existing categories of works. The commercial market for sound recordings began to grow in the early 20th century, but efforts to expressly provide for federal protection of sound recordings in the 1920s and 1930s were unsuccessful.5Kevin Parks, Music & Copyright in America: Toward the Celestial Jukebox, pp 103-107 (ABA 2012). Recording artists and record companies turned then to state courts and legislatures for relief. Beginning in the late 1960s, several states passed criminal antipiracy statutes for sound recordings.6US Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, pg 20 (2011) (“Pre-72 Report”. During that time, Congress was engaged in a wholesale revision of the Copyright Act, which would include federal protection for sound recordings, but revision efforts stalled in the mid-1960s over unrelated issues. Rather than waiting (and for other reasons), Congress separately passed a bill to provide federal copyright protection to sound recordings, the Sound Recording Amendment Act of 1971. Most importantly, the bill only applied prospectively—that is, it only afforded federal copyright protection to sound recordings fixed after the bill’s effective date of February 15, 1972. It also did not provide for the protection of public performance of sound recordings.

Wholesale revision of copyright eventually did pass and became the Copyright Act of 1976. It retained the carve-out for pre-72 sound recordings and provided that state laws that applied to those works were not preempted.717 USC §301(b). That meant that all copyrightable works were protected under the unitary scheme of the federal copyright law save for pre-72 sound recordings, which continued to receive whatever protections state and common law afforded them. That includes not only the criminal antipiracy statutes mentioned above, but also state civil statutes, state tort law claims such as unfair competition, misappropriation, conversion, and right of publicity, and common law copyright protections. At the same time, recognizing that many of these state and common law protections lasted in perpuity, Register of Copyrights Barbara Ringer recommended the Copyright Act include a cutoff date for any laws protecting pre-72 sound recordings, at which point the recordings would be protected under federal copyright law.8Pre-72 Report at 16. That cut-off date was extended along with the general term of copyright in 1998 and is currently set at February 15, 2067.917 USC §301(c).

Congress created a narrow right to perform sound recordings publicly by means of digital audio transmission in 1995. It added the statutory license for that right found in Section 114 of the Copyright Act as part of the Digital Millennium Copyright Act in 1998. That license covers noninteractive internet services and satellite digital audio services. But like the rest of the federal copyright law, it is only applicable to sound recordings fixed after 1972.

In 2011, the U.S. Copyright Office, as directed by Congress through the Omnibus Appropriations Act of 2009, issued a study on “the desirability of and means for bringing sound recordings fixed before February 15, 1972, under federal jurisdiction.” In the report, the Copyright Office concluded that pre-72 sound recordings should be brought within federal protection, finding, among other things, that “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.” It noted, however, that doing so would require resolving challenging, but not insurmountable, issues related to ownership, term of protection, and registration, among others.

The CLASSICS Act takes a narrower approach, tailored to the problem of pre-72 recording artists and owners being left out of the revenue their work generates as music consumption shifts from sales and downloads to digital streaming.10Ben Sisario and Karl Russell, In Shift to Streaming, Music Business has Lost Billions, New York Times, March 24, 2016. It is an open question whether pre-72 sound recordings have any performance rights under state and common law,11See Zvi Rosen, Common Law Copyright (2016) for a thorough look at the extent to which common law copyright includes a right of public performance. and in recent years, there have been a number of lawsuits launched arguing they do. To date, the high courts in New York and Florida have resolved that question with a no; California has yet to decide in a separate lawsuit.12In March 2017, the Ninth Circuit certified the question for the California Supreme Court to decide. But that still leaves over forty states. The CLASSICS Act would subject pre-72 sound recordings to the existing Section 114 statutory license, so they would be treated the same as post-72 sound recordings in that context. That means legacy artists can share in the value of the works that they have created while streaming services benefit from a more certain legal environment.

Inventing an extension

With that background in mind, let’s look at the claim that the CLASSICS Act “includes term extension for sound recording performance rights” or “extends copyright term for sound recordings.” It does not. As discussed above, pre-72 sound recordings are protected under state and common law (protection which, again, is indefinite and potentially perpetual). Under 17 USC § 301(c), this protection lasts until February 15, 2067, at which point, the sound recordings are brought under federal protection and any state and common law rights are preempted. At that point, the term of copyright protection subsists for the duration provided by 17 USC § 303, which applies to all copyrighted works not published or copyrighted before the effective date of the current Copyright Act. That scheme was established in the 1976 Copyright Act (and the cutoff year was extended to 2067 as part of the 1998 Copyright Term Extension Act). Cox incorrectly asserts that the cutoff date is the creation of the CLASSICS Act:

Again, current copyright term in the United States is already too long, but CLASSICS would make this problem even worse. Think 95 years is excessive? How about 144 years? Yes, that’s right. In Congress’s infinite wisdom, in what some members of Congress claimed to be an effort to create greater equity, sound recordings fixed between 1923 and 1972 will claim copyright protection in 2067.

The CLASSICS Act does not change any of these provisions. Copyright protection in pre-72 sound recordings will subsist after the bill passes for however long it would subsist under current law.

But perhaps when Lemley and Cox say “term extension”, they don’t actually mean that the duration of protection would be prolonged. Rather, they mean that the right to receive royalties under the Section 114 statutory license provided by the CLASSICS Act could be considered an extension either compared to the current level of protection for pre-72 sound recordings, or compared to the term of protection for post-72 sound recordings. But neither of these arguments bear out.

As noted above, it is an open question whether pre-72 sound recordings have protection for digital performances under state and common law. If, on the one hand, we assume they do, then CLASSICS doesn’t “extend” protection, it merely shifts it from the state to the federal level (and in doing so, affords digital services of a statutory license and provides all users with fair use and other limitations and exceptions that are not available under state and common law). But if, on the other hand, we assume pre-72 sound recordings don’t currently have protection for digital performances and that CLASSICS creates a new right, then it is inaccurate to assert that they receive protection for a term beginning at their creation, or as far back as 1923 under the bill, and lasting until 2067—which is where Lemley and Cox arrive at the 144 year figure they mention (2067-1923=144). The new right is prospective, so sound recording artists and owners only get the benefit of it starting on the effective date of the legislation. Say, for example, CLASSICS passes this year and goes into effect at the beginning of 2019, that gives pre-72 sound recording artists and owners an effective digital performance right “term” of 48 years (2067-2019=48).

The second argument, that CLASSICS provides for a term of protection for pre-72 sound recordings that is longer compared to post-72 sound recordings is nonsensical for the reasons stated above: the respective terms of protection for pre and post-72 sound recordings was established in the 1976 Copyright Act and are not impacted by the CLASSICS Act.

In its report, the US Copyright Office said it “thinks it is unreasonable for the age of a sound recording to dictate whether royalties are paid on public performances by means of digital audio transmissions, so long as copyright subsists in that sound recording.” It arguably also cuts against the principles of copyright law to reward authors.13See Eldred v Ashcroft, 537 US 186, 212 n.18 (2003); see also Kirtsaeng v John Wiley & Sons, 136 S. Ct. 1979 (2016) (describing “the well-settled objectives of the Copyright Act” as enriching “the general public through access to creative works’ by striking a balance between encouraging and rewarding authors’ creations and enabling others to build on that work.”). The treatment of pre-72 sound recordings under the Copyright Act is a historical idiosyncrasy, and the fact that those recording artists can’t get paid for digital streams like their post-72 counterparts was probably not intended by Congress nearly half a century ago. At that time, the reproduction and distribution of records was the primary way artists commercially exploited their work. Now that that is being overtaken by digital streaming, it makes sense to update the law to reflect that change. The CLASSICS Act would do that and plays a key part in broader music licensing reform that is currently under consideration by the Senate.

References

References
↑1 H. Rep. No. 115-651 (2018).
↑2 “House unanimously passes copyright reform act that unfortunately includes term extension for sound recording performance rights for as long as 144 years.”
↑3 Compendium of U.S. Copyright Office Practices, Third Edition, 802.3.
↑4 Musical compositions in printed form were protected as “books” under the 1790 Act. Congress recognized musical compositions as a discrete category beginning in 1831.
↑5 Kevin Parks, Music & Copyright in America: Toward the Celestial Jukebox, pp 103-107 (ABA 2012).
↑6 US Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, pg 20 (2011) (“Pre-72 Report”.
↑7 17 USC §301(b).
↑8 Pre-72 Report at 16.
↑9 17 USC §301(c).
↑10 Ben Sisario and Karl Russell, In Shift to Streaming, Music Business has Lost Billions, New York Times, March 24, 2016.
↑11 See Zvi Rosen, Common Law Copyright (2016) for a thorough look at the extent to which common law copyright includes a right of public performance.
↑12 In March 2017, the Ninth Circuit certified the question for the California Supreme Court to decide.
↑13 See Eldred v Ashcroft, 537 US 186, 212 n.18 (2003); see also Kirtsaeng v John Wiley & Sons, 136 S. Ct. 1979 (2016) (describing “the well-settled objectives of the Copyright Act” as enriching “the general public through access to creative works’ by striking a balance between encouraging and rewarding authors’ creations and enabling others to build on that work.”).

Friday’s Endnotes – 05/04/18

By , May 04, 2018.

YouTube Beta Testing Content ID for Everyone — Jonathan Bailey takes a look at a new tool being tested by YouTube that would aid users with addressing infringement on the service. Unlike Content ID, the service appears that it will be made available to all users.

Gibson’s Bankruptcy is a Cautionary Tale about Corporate “Innovation” — “My point here is not to blame Gibson or its CEO for poor leadership, but rather to call into question our collective belief in ‘innovation’ as the sole path to success in a fast-changing world. As a culture, we are obsessed with innovation, with ‘disruption,’ with entrepreneurs and hustlers and go-getters.”

Music Modernization Act: A Breakdown — Attorney Dina LaPolt has assembled a quick guide to H.R. 5447, the Music Modernization Act, which passed the House last week after a 415-0 vote. The chart compares the current state of the law to how the law would operate under the MMA.

Federal Circuit’s Fair Use Decision in Oracle v. Google – Astonishing, But Not Surprising — Attorney Lee Gesmer offers some practical takeaways from the Federal Circuit’s March decision in Oracle v Google, which held that Google’s copying of Java code was not protected by fair use.

Pre-Release Game of Thrones Leaks Bred Pirates, Research Shows — “The pre-release leak of four Game of Thrones episodes, early 2015, is one of the most prominent piracy cases in TV history… A new working paper published by economy researcher Wojciech Hardy of the Institute for Structural Research and the University of Warsaw carefully dissected the aftermath. The findings show that the pre-release leaks triggered more people to pirate, and not just the four leaked episodes. This led to a decrease in expected viewers for Game of Thrones, but also for comparable TV-shows.”

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