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3 Count: Shakedown 1971

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1: UMG Wins Copyright Ruling in Case Against Grooveshark

First off today, Ted Johnson at Variety reports that Universal Music has scored a potentially serious win against Grooveshark with the New York Supreme Court’s appellate division saying that songs recorded pre-1972 are not covered under the safe harbor provisions of the Digital Millennium Copyright Act.

Grooveshark is a music streaming service that lets users upload tracks for others to play. Though it doesn’t pay licensing fees, it claims that it is protected under the DMCA because the content is uploaded by third parties. However, sound recordings from before 1972 were not protected under Federal copyright law, but rather, a mix of state laws until Congress passed legislation to bring them under the Federal code

According to the court, the DMCA did not specifically mention the pre-1972 sound records, therefore, they don’t qualify for safe harbor protections. Therefore, though the court says Grooveshark is protected under the DMCA for works newer than 1972, all infringing files on the service that date back before then could result in them being held liable. Grooveshark has promised to appeal and a separate lawsuit in Federal court is still ongoing.

2: Corby Book Ruling Reinforces Photographic Copyright Laws

Next up today, Harriet Alexander at the Sydney Morning Herald reports that the family of drug smuggler Schapelle Corby has won a key victory that may change how media in the country use photographs.

The case began when book publisher Allen & Unwin used photos owned by Corby’s family in a book entitled “Sins of the Father”. The photos were made available to the media covering the story initially but not to the publisher, resulting in the lawsuit. The court agreed with the Corbys, saying that just because a license was given to media outlets does not mean one was granted for the book.

The publisher has ben ordered to pay the family $54,250 (approximately $55,750 USD) and pulp all copies of the book in the publisher’s possession. The decision could impact newspapers and other book publishers that often make extended use of photos without asking for permission.

3: Copyright Troll Prenda Loses SF Case, Must Show “Salt Marsh” Signature

Finally today, Joe Mullin at Ars Technica reports that Prenda Law, best known for its mass lawsuits against suspected BitTorrent porn pirates, has lost one of its cases, having it dismissed with prejudice.

Prenda recently became the subject of an investigation in a different court as to whether firms they were supposed to be representing were actually shell companies for the lawyers themselves. As that investigation went on, Prenda sought to drop many open cases, including this one, but wanted to do so without prejudice so it could be reopened later. The judge, however, has decided to dismiss it wit prejudice, ending it forever.

There is still a possibility that the defendant could file a motion to have Prenda pay their attorney fees, which is likely to happen. However, there are serious doubts about Prenda’s (or the companies it represents) ability to pay for such fees.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

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2 comments
David
David

I found a copy of the New York Court ruling here: http://www.nycourts.gov/courts/ad1/calendar/appsmots/2013/April/2013_04_23_dec.pdf

The Grooveshark case starts at page 76.

I'm no lawyer, but the Court's analysis seems pretty convincing to me.

I wonder also if there is not a more fundamental Constitutional issue at stake. The DMCA is a Federal statute, but copyright is not a matter reserved to the United States under the Constitution. Individual States can make their own copyright laws, and Federal law can only override them to the extent justified by the murky doctrine of 'federal preemption'. In the case of pre-1972 sound recordings, where there is no Federal copyright, I wonder if it would even be possible (constitutionally) for the DMCA to be extended to cover them, unless they were first brought within the scope of Federal law..

Of course, as Grooveshark pointed out, the issue has implications for other businesses, such as YouTube, so we can expect massive pressure from the usual suspects to reverse the ruling.

Jonathan Bailey
Jonathan Bailey

That's a good question and one out of my scope. Constitutional issues like this are beyond what I study. I know how it was supposed to work but you raise some good questions about whether or not the way it was supposed to work can work at all...