On Friday I had the privilege of speaking at the AIPLA Spring Meeting in Los Angeles on the subject of pre-1972 sound recordings and the current series of lawsuits brought by the successors of the Turtles against Sirius XM regarding royalties over pre-1972 sound recordings. Copyright law in the United States is almost exclusively governed by the federal Copyright Act, which preempts equivalent state laws. As originally drafted, however, federal copyright law did not extend copyright protection to sound recordings, leaving those works to be regulated by the states. Congress amended the copyright law in 1972 to add federal protection for sound recordings, but it granted this protection on a prospective basis only. Sound recordings fixed before February 15, 1972 thus remain subject to state law. A series of lawsuits brought by Flo & Eddie, Inc. (“Flo & Eddie”), the entity that owns the copyrights for sound recordings created by the 1960s rock group the Turtles, is upending rules thought long established regarding performance rights of pre-1972 sound recordings under state law. Continue reading
Aereo Inc. has reached a proposed settlement with the broadcasters that have sued it for infringing their copyrighted works. The settlement would result in payment of $950,000 to the broadcasters in satisfaction of their claims seeking over $99 million – amounting to less than a penny on the dollar.
This development follows lengthy legal proceedings that saw the dispute go all the way to the Supreme Court on the issue whether Aereo was publicly performing the plaintiffs’ television shows, originally broadcast over the air for free, by streaming them to subscribers over the Internet. Section 106 of the Copyright Act reserves to the copyright owner six exclusive rights, including the right to publicly perform literary, musical, dramatic and motion picture works. In the so-called “Transmit Clause,” the statute provides that “to perform or display a work ‘publicly’ means … To transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” 17 U.S.C. § 101. The Transmit Clause was added to the Copyright Act when it was amended in 1976 as a result of two Supreme Court cases: Fortnightly Corp. v. United Artists Television, Inc. and Teleprompter Corp. v. Columbia Broadcasting System, Inc. In those cases, the Court had held that community cable systems that retransmitted free, over-the-air broadcast signals did not “perform” the copyrighted works in the broadcasts and did not infringe the copyright owners’ public performance rights. Congress added the Transmit Clause to the 1976 Act to overturn these decisions. Continue reading
Copyright law in the United States is almost exclusively governed by the federal Copyright Act, which preempts equivalent state laws. As originally drafted, however, the Copyright Act of 1976 – the current iteration of the Act – made an exception for sound recordings fixed before February 15, 1972, leaving those works to be regulated by the states. State law thus applies to determine the rights and remedies available to the copyright owner of pre-1972 sound recordings. Continue reading
Breaking: This morning, Judge Pauley of the Southern District of New York issued an opinion granting in part and denying in part (but mostly denying) the defendant’s motion for judgment as a matter of law in Capitol Records v MP3Tunes, in which the jury had found liability for copyright infringement and awarded over $48 million in damages. The opinion is lengthy and fascinating, especially in its characterization of the parties, and particularly the defendant. This post summarizes the rulings on each issue and sprinkles in some of the court’s more colorful commentary. Continue reading
This lawsuit stems from the Google Book Project, an ambitious program launched by Google in 2004 to digitize the library collections of the University of Michigan, Harvard, Stanford, the University of Oxford and the New York Public Library and make the collections available for searching online. In 2008, a group of universities established HathiTrust as a repository to combine, archive and share their digital libraries, and make the collection available to the public. At the time of the commencement of suit, the repository reportedly contained 10 million volumes. The Authors’ Guild, an authors’ trade association, and other authors’ groups sued HathiTrust for copyright infringement and swiftly moved for a judgment on the pleadings that HathiTrust could not rely on the fair use defense to the claim of copyright infringement. Continue reading