Safe Harbors and 70s Music

Online services in the United States, such as websites where content is shared, have relied heavily on the protection of the Safe Harbor provisions in the Digital Millennium Act to protect themselves from infringement through their services. The provision itself excludes online service providers from liability should the users of their services do so, on the condition that they are unaware of this activity and should they be notified of any infringements, take immediate action to stop the infringements or remove any infringing material. As one can see, the legislation encourages service providers to take a proactive stance, and limits their liability should their services be misused in a way which they're unaware of. From a provider's stand-point not only does this allow for start-ups to engage in their respective service provision, but it also prevents them from being immediately swamped by law suits and therefore never getting off the starting line. The matter of whether service providers, specifically music streaming services, would be protected from liability for sound recordings made before protection was awarded to them through Statute in 1972 (albeit still existed through common law) was deliberated by the New York State Appeals Court a mere few days ago in the case of UMG Records Inc v Escape Media Group Inc.

The grooviest of all sharks

The case concerned the website Grooveshark, where users could stream content that uploaded by other users,creating playlists or listening to selected artists, with revenue coming through user subscriptions or advertisements during streaming. The claimant, UMG Records argued that the Safe Harbor provisions did not offer escape from liability for service providers, due to the DMCA amending the prior Copyright Act which expressly set out that any sound recordings made before 1972 would not be covered under the Federal legislation. This would in turn mean that the amendments made in the DMCA would not apply to those songs, rendering the Safe Harbor provisions unusable to protect service providers, as liability would still exist through the common law.

In their decision the court stated that the provisions would not apply to songs made before 1972, causing the service provider to potentially be liable under common law. The decision went against a District Court decision a few years before, Capitol Records v MP3tunes, where Judge Pauley saw that there was no indication that the legislation would exclude sound recordings made prior to 1972. The decision in the NY Court is one of strict interpretation, and in this writer's honest opinion, lacks the common knowledge and application to today's needs for service providers. The legislation does not expressly limit its scope, and applying pre-Internet legislation in its interpretation would undermine what the Safe Harbor provisions set out to achieve; to offer protection for service providers in an age where millions have access to services, making their full control and prevention of infringement an arduous and difficult undertaking. The case will be appealed and hopefully rectified in higher courts.

The case itself shows yet again, as has been discussed in this blog several times, the datedness of copyright legislation in the US. Without express and clear provisions dealing with subject matters such as this, bringing copyright legislation to the 21st century, both users and service providers will end up fighting an uphill battle trying to protect their rights and ability to utilize the Internet to its fullest. Whether action will be taken will remain to be seen, but there clearly is a need for reform.

Source: Thomson Reuters