U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Capitol Records Music Infringement Case Going to SCOTUS

Can't I get a witness? Can't I get a witness?

Capitol Records could have hoped so. The company lost at trial and then appeal over lip-dubbed music recordings, so now its lawyers are are going to the highest court in the land.

The case involves music recorded before 1972, and whether Section 301(c) of the Copyright Act's remedies for infringement survived the safe harbor provisions of the Digital Millennium Copyright Act. The DMCA shields internet service providers from some actions taken by their users, but the Copyright Act leaves infringement protection for pre-1972 recordings to the states.

Safe Harbor Provision of the DMCA

In this case, Vimeo users have been making karaoke-YouTube-like recordings with music from 1972 and earlier. The video-sharing website allows users to upload, share, and view videos. About 100 million subscribers use the service, either free or for a monthly fee of up to $50. Capitol, hoping for the kind of success that other records labels have had against online publishers, sued to get some of that.

But the Second Circuit Court of Appeals found, in a case of first impression, that the DMCA's "safe harbor provision" includes protection from "infringement of state laws of copyright." The appeals court denied a rehearing of the issue, and so Capitol filed its petition for review on Wednesday.

Capitol's Petition

In its petition, Capitol argues that the Second Circuit decision creates conflicting rules in New York state and federal courts, which could lead to "wasteful forum-shopping behavior." The record company also appeals for the rights of the oldies but goodies.

"[T]he Second Circuit's decision ... diminishes the legal protections enjoyed by owners of every sound recording made in the United States prior to February 15, 1972 -- including among them works of immense cultural and commercial significance like those of The Temptations and The Supremes, Miles Davis, Ella Fitzgerald, Frank Sinatra, Pablo Casals, and Yehudi Menuhin, to name just a few," the petition says.

However, the lawyers missed a beat by failing to mention the Soul Brothers Six and their Some Kind of Wonderful.

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