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DMCA Safe Harbor May Not Apply To Old Copyrighted Works

timothy posted about a year and a half ago | from the no-escape-clause dept.

Music 139

tlhIngan writes "On Tuesday, the New York appellate court denied Grooveshark the DMCA safe harbor protection on songs like Johnny B. Goode. What happened was due to an oddity in the law, the DMCA does not apply to state-licensed copyrighted works (those copyrighted before February 15, 1972). What happened was Congress overhauled copyright law to make it a Federal matter, but all works prior to that date still come under common-law and state statutes. The end result is that Grooveshark does not have DMCA safe harbor protection for older works and may be sued for copyright infringement (barring other agreements, e.g., UMG and YouTube), even though they fully comply with the DMCA otherwise, taking down copyrighted materials. Grooveshark is a "music locker" service allowing users to upload music for others to listen to."

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First (-1, Offtopic)

Anonymous Coward | about a year and a half ago | (#43545773)

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Re:First (-1, Offtopic)

Anonymous Coward | about a year and a half ago | (#43546777)

Troll? More proof that a corrupt luser has pentrated the slashdot moderators.

Re:First (-1)

Anonymous Coward | about a year and a half ago | (#43547957)

Hahaha, disregard all of my anti-apk posts, I suck cocks!!!

And it was through this (5, Insightful)

Anonymous Coward | about a year and a half ago | (#43545783)

that corporations denied us access to our culture.

You might see music as a "product", but it's been a cultural output since the beginning of time.

Re:And it was through this (5, Interesting)

Aguazul2 (2591049) | about a year and a half ago | (#43545963)

that corporations denied us access to our culture.

You might see music as a "product", but it's been a cultural output since the beginning of time.

When I ran the anti-corrupt CD campaign for the UK Campaign for Digital Right (now defunct), the group with the most interesting complaint were the archivists. They have the responsibility to archive our culture for future generations. All the DRM and physical protections and ill-conceived laws make their job increasingly difficult. If corporations have their way, maybe in 1000 years this will indeed be seen as a Dark Age because nothing readable/accessible of our corporate-sponsored culture survived. Just cat videos.

Re:And it was through this (4, Funny)

Ashenkase (2008188) | about a year and a half ago | (#43546041)

Don't worry, in 1000 years time our genetically modified cats will have overthrown their furry shackles and will have become our feline overlords. They will be most thankful that humans have kept their historical "culture" properly archived and indexed, most notably "Cats in Sinks".

Re:And it was through this (2)

ameen.ross (2498000) | about a year and a half ago | (#43546157)

I, for one, welcome our new vengeful feline overlords.

Re:And it was through this (3, Funny)

omnichad (1198475) | about a year and a half ago | (#43546205)

At least they'll be well-dressed [wikipedia.org] .

Re:And it was through this (1)

Golddess (1361003) | about a year and a half ago | (#43546369)

So we'll have come full circle [wikipedia.org] then. Although some people (myself included) would say that felines never ceased being our overlords.

Feline overlords (1)

zooblethorpe (686757) | about a year and a half ago | (#43547647)

Seen on a poster somewhere recently:

Dogs have masters.

Cats have staff.

Seems about right for what I see at our house. :)

Cheers,

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43546083)

Cat videos ARE our culture.

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43546271)

All the DRM and physical protections and ill-conceived laws make their job increasingly difficult. If corporations have their way, maybe in 1000 years this will indeed be seen as a Dark Age because nothing readable/accessible of our corporate-sponsored culture survived. Just cat videos

Lets not forget about assertions of limitations on use of our own pictures and videos asserted by IP owners of compression algorithms.

Re:And it was through this (1)

petermgreen (876956) | about a year and a half ago | (#43546875)

At least patents only last about 20 years, which while an annoyingly long time that is short enough that the original physical media on which content is sold and the devices to read it will likely last that long.

Copyrights OTOH seem to keep receiving retroactive extensions and afaict the anti-cirumvention stuff has no expiry at all so they are much bigger threats to preservation of our cultural history.

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43546293)

Just cat videos.

Worse. Just the ones that didn't have copyrighted music playing in the background.

Re:And it was through this (1)

Jane Q. Public (1010737) | about a year and a half ago | (#43546363)

"When I ran the anti-corrupt CD campaign for the UK Campaign for Digital Right (now defunct), the group with the most interesting complaint were the archivists. They have the responsibility to archive our culture for future generations. All the DRM and physical protections and ill-conceived laws make their job increasingly difficult."

And in the U.S., DMCA is one of the most egregious laws. We keep hearing about the "safe harbor" provisions, but those provisions would hardly be necessary if it weren't for the other, very negative parts of this disastrous law.

Having said that, I really wonder about TFA, and whether it gets things quite right. Copyright has always been a Federal matter in the U.S... it says so right there in our Constitution.

Re:And it was through this (1)

larry bagina (561269) | about a year and a half ago | (#43546937)

States used to have their own copyright laws. The 1976 copyright act nullified them going forward but they may still apply for older works.

Re:And it was through this (1)

UnderCoverPenguin (1001627) | about a year and a half ago | (#43547999)

States used to have their own copyright laws. The 1976 copyright act nullified them going forward but they may still apply for older works.

Congress (and big media) assert that it has the power to extend the duration of these state issued copyrights. Is the scope of preemption by the federal copyright law really so limited that the DMCA would not apply to those works?

Worse, selective application of the DMCA to those early works would create an even more difficult situation not only for customers, but also for independent artists. The way things have been going for the last few decades, it will soon be impossible for artists to legally distribute their works without a big media contract. Big media has already gotten the Copyright Royalty Board to rule that blanket licenses are defacto statutory licenses, so requiring royalties under a blanket license to be paid to them. Then indy artists must pay a fee to them for the privilege of applying for some percentage (less then 100%) of the royalties collected. Now indy artists must license each work (or, possibly, each defined collection/album/portfolio) to be able to collect royalties without big media siphoning a portion of it.

Re:And it was through this (1)

Jane Q. Public (1010737) | about a year and a half ago | (#43548175)

"States used to have their own copyright laws. The 1976 copyright act nullified them going forward but they may still apply for older works."

I'm not about to claim that's wrong, because I don't recall ever hearing about it before. But the Federal government has always had the power to issue copyrights, so having separate State copyrights seems pretty strange and redundant.

U.S. Constitution, Section 8:

"The Congress shall have power...

8.8 To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

Re:And it was through this (1)

davester666 (731373) | about a year and a half ago | (#43547273)

Yes, the article was right.

And this ruling basically makes the DMCA invalid, because a web site operator would need to implement a filter to determine if uploaded files were covered by this older copyright law [or be sued and lose, as per this case], but doing this filtering means you know [or can know] that the file is covered by someones copyright in general, therefore you can't be protected by the DMCA.

Re:And it was through this (1)

Jane Q. Public (1010737) | about a year and a half ago | (#43548193)

I like this thinking. I'd love to see the DMCA shitcanned.

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43546531)

Just cat videos.

Once Disney makes a movie about cats you can kiss those goodbye too

Re:And it was through this (1)

lister king of smeg (2481612) | about a year and a half ago | (#43547541)

that corporations denied us access to our culture.

You might see music as a "product", but it's been a cultural output since the beginning of time.

When I ran the anti-corrupt CD campaign for the UK Campaign for Digital Right (now defunct), the group with the most interesting complaint were the archivists. They have the responsibility to archive our culture for future generations. All the DRM and physical protections and ill-conceived laws make their job increasingly difficult. If corporations have their way, maybe in 1000 years this will indeed be seen as a Dark Age because nothing readable/accessible of our corporate-sponsored culture survived. Just cat videos.

No in a thousand years our descendants will be thanking the pirates that broke the drm and shared content with the world in easily format shift-able way. todays pirates and drm hackers will be looked at the same way we look at the monks that devoted their lives to copying the greek manuscripts, or as Gutenberg for making that information accessible to the public.

Re:And it was through this (1)

morgauxo (974071) | about a year and a half ago | (#43547775)

I don't know about that. How much of today's culture is really worth preserving anyway? Perhaps people of the future will hate today's pirates for cursing them with a library of reality television, lady gaga, etc...

Re:And it was through this (1)

lister king of smeg (2481612) | about a year and a half ago | (#43548271)

I don't know about that. How much of today's culture is really worth preserving anyway? Perhaps people of the future will hate today's pirates for cursing them with a library of reality television, lady gaga, etc...

Nah. When I look at list of most torrented shows its stuff like game of thrones , big bang theory, fringe, how i met your mother, walking dead, shows that express our culture not necessarily what the networks push. The reason there are so many "reality" tv shows is they are cheap to produce so the networks make tons realizing that while they wont get as may people watching it does not matter because they don't have to make as much money to pay for more. But when it comes to pirated television the wheat is sifted from the chafe much more easily as people torrent what they want to see, not what the networks want them to see. when it comes to music though most people unfortunately have no taste or those that do simply stream or buy their music rather than pirate it, leading to the exact opposite happening to music where the good quality music is lost in a sea of gaga and beiber.

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43548467)

I don't know about that. How much of today's culture is really worth preserving anyway? Perhaps people of the future will hate today's pirates for cursing them with a library of reality television, lady gaga, etc...

Shakespeare is mostly dick and fart jokes. Modern culture isn't any more shallow than older culture you just realize how asinine it is because the idioms aren't obsolete yet.

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43546183)

if the dcma doesn't apply then the federal laws allowing those ridiculous laws allowing insane damages don't count.
just wait for it. the same arguement for the dcma not counting is the same argument they will use to get non insane damages. wonder if the umg will getting maybe 5 bucks as damages.

Re:And it was through this (2)

digitrev (989335) | about a year and a half ago | (#43546243)

17 USC Section 301

(c) With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.

(d) Nothing in this title annuls or limits any rights or remedies under any other Federal statute.

So in other words (if I understand the ruling & law correctly), for songs recorded before 1972, the parts of the DMCA granting rights & remedies apply, but not the parts of the DMCA removing previous rights and remedies (i.e. the safe harbour bits).

Re:And it was through this (1)

achbed (97139) | about a year and a half ago | (#43546743)

In my reading, the DMCA cannot apply to any recording done before 2/15/1972. This includes both new rights, as well as safe harbor provisions. So anyone holding copyright on recordings older than that still has standing to sue lockers out of existence - they just have to do so in state court, not federal. Sounds like the RIAA found its workaround to the safe harbor provisions.

I note that this applies to recordings. This probably means that it's only usable by the record companies that own the masters, not the songwriters.

Re:And it was through this (1)

JWW (79176) | about a year and a half ago | (#43548043)

That good. Because the record companies aren't the problem the songwriters are. Oh, wait....

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43547109)

How can one apply and not the other? Either the DMCA applies or it doesn't apply. I'm not sure how the Federal government could have jurisdiction to impose the rights and remedies, but not to impose exceptions to the same rights and remedies that the DMCA imposed.

Re:And it was through this (1)

GodfatherofSoul (174979) | about a year and a half ago | (#43546511)

Yeah...is that the new rationalization for not paying for music?

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43546581)

Good goyim! Goooood!

Re:And it was through this (0)

Anonymous Coward | about a year and a half ago | (#43546749)

I don't pay for music from a cartel who's openly hostile toward both, their customers and their product generators. I'm willing to bet the majority of music you have paid for has not resulted in a dime making it to the ones who actually created the music. I do research on who I'm buying from before I buy. And yes, I DO buy music. If they're on an unfavorable label, I either find a way to buy direct from them, or I don't offer them mindshare.

Upstanding Youth, TMBG, Moon Hooch, zircon, Streetlight Manifesto, The Cog is Dead, just to name a few off the top of my head from the last year.

Insanity! (5, Insightful)

Anonymous Coward | about a year and a half ago | (#43545789)

Nothing that old should be covered by copyright, anyway. To give safe-harbor to those hosting new works but not those works that should be in the public domain shows that out "legislators" are batshit crazy. Only a certifiable lunatic would pass laws like the ones we have on the books.

Re:Insanity! (3, Insightful)

bill_mcgonigle (4333) | about a year and a half ago | (#43545927)

Only a certifiable lunatic

The sociopaths are giving the lunatics a bad name!

Re:Insanity! (1)

fustakrakich (1673220) | about a year and a half ago | (#43546111)

Try to remember, our public servants have been given an offer they can't refuse. Either their brains or their signatures will be on whatever bill the industry proposes.

Re:Insanity! (2)

TheCarp (96830) | about a year and a half ago | (#43546537)

That is hardly a fair choice you know.... it forces them to choose signatures since they haven't got brains.

Re:Insanity! (0)

Anonymous Coward | about a year and a half ago | (#43546815)

Dr.Frankenstein was in the middle of making his famous monster made from dead bodies. All he has to do is put in a brain. But he's all out of human brains so Dr.F goes to the brain store. At the front desk there is a sign listing prices.

  Dumb brain......$1.35 per lb.
  Average brain.....$1.99 per lb.
  Smart brain.......$2.75 per lb.
  Doctor brain......$3.25 per lb.
  Politician brain......$5000.00 per lb.

  Dr.Frankenstein asks the guy at the front desk why the politician brains cost so much.
  The guy at the desk says,"Do you have any idea how many politicians it takes to get one pound of their brains?!"

LOL "music locker" (1, Insightful)

Anonymous Coward | about a year and a half ago | (#43545793)

Yeah, we all know how well "music locker" concept is. Kinda reminds me of a store called Woolworth's. You know what's remaining of that once GIANT business? Foot Locker. Oh wait, isn't THAT dead, too? No joke, Woolworth's dissolved into Foot Locker, and Foot Locker dissolved into nothing. So will be the way of ALL P2P music sharing services, like Napster, Kazaa, Kazaa Lite, Kazaa Codec Pack, Napster, and Torrent services like The Pirate Bay and Enpornium. I suggest that you move back to CDs and use your camcorder to record movies of your CD player boomboxes if you want to make backup copies. I am not even joking.
 
--RIAA Narc

Citation (0)

Anonymous Coward | about a year and a half ago | (#43545905)

Here is my citation for all of you [citation needed] buffoons.
  [citation GIVEN] [wikipedia.org]
Which gets me back to thinking,

Re:LOL "music locker" (4, Interesting)

dyingtolive (1393037) | about a year and a half ago | (#43546273)

I'm confused, help me out here:

So your argument is that businesses, no matter how great an empire they happen to be, that cannot adapt to the changing of the times will crumble under a superior model employed by lighter and faster moving competitors?

I can follow that argument. The source of my confusion is that you are applying it to the wrong side of the fence.

Re:LOL "music locker" (0)

Anonymous Coward | about a year and a half ago | (#43548315)

My argument is still for instance, that the business models are tiring and outdated. See where I went with this? So you try and you try and you try. We didn't have DRM back in the '80s because they couldn't handle it or rather the technology couldn't. Were people the same? Probably if you think of the Corporate creations like the Monkees (fake Beatles band) that even had their own TV show. But now you have entire DRM schemes, remember the FPGA + HDMI board where they just BROKE it? Yep! And we'll never get it. You never saw Montgomery Ward selling iPods, iPhones, iFruits, FPGA boards, Samsung Flat Panels, etc., cell phones, whatever, and you know why they don't exist? Because they never saw the iPod or vibrator thing coming and refused to carry them. And off went their head FTC style.
 
--RIAA Narc

Re:LOL "music locker" (1)

Anonymous Coward | about a year and a half ago | (#43546577)

Wait, so where did I buy my shoes at yesterday?

Re:LOL "music locker" (0)

Anonymous Coward | about a year and a half ago | (#43547305)

Loot Focker.

Re:LOL "music locker" (0)

Anonymous Coward | about a year and a half ago | (#43547611)

Well... Woolworths' original model was on the Five and Dime stores. Given that, "$0.05 in Jan 1913 when adjusted for inflation is $1.08 in Jan 2009 dollars." [wikipedia.org] Then aren't the Dollar Stores that exist in abudance all over the United States simply a continuation of this model? And isn't it the model that is really the basis of discussion here, not the company itself?

Using your example and a logical train of thought, music sharing services should therefore continue almost indefinitely but also fall into semi-obscurity while providing cheap shit to the masses.

Also... Who the fuck even owns a camcorder or CD player boombox anymore?

Re:LOL "music locker" (1)

UnderCoverPenguin (1001627) | about a year and a half ago | (#43548217)

Who the fuck even owns a camcorder or CD player boombox anymore?

I own and still use a 5 disk CD boombox. I even still have a CD collection. I also use the box's aux input with a cheap MP3 player (or sometimes with my Android tablet)

And a friend of mine owns and uses 2 different camcorders. The older one (with a large, high quality lens) records to digital tape. The newer one records to SD card.

Slashdot Copyright Overload (3, Interesting)

Covalent (1001277) | about a year and a half ago | (#43545845)

It seems to me that every day there is a copyright story here at /. I am not complaining - I think our copyright system needs a major overhaul. But perhaps it's time for a new sub-header. Maybe split yro into copywrong and tinfoilhat?

Re:Slashdot Copyright Overload (0, Interesting)

Anonymous Coward | about a year and a half ago | (#43546031)

It's because there are basically two kinds of new stories (in reality itself; it's not a /. thing) these days: tech advances, and government attempting to prevent tech advances. You're right that the latter category does mostly consist of copyright stuff. Let's not all forget patents or terrorism overreaction (HOWTO be a Terrorist-Mandated-Policy Compliant Terroree), etc.

Uhh really? (0)

Anonymous Coward | about a year and a half ago | (#43545865)

I do not fully understand the theory of Quantum Mechanics, this being laws of nature we are all still trying to tease out of God or whatever. What is even more disturbing though is how as a human species we can create laws of such magnitude of bullshit such that "stuff" that human minds have thought up has brought us to this state with copyrights. We are creating a set of rules and laws that serve no real usefulness for the advance of real progress.

Re:Uhh really? (0)

Anonymous Coward | about a year and a half ago | (#43545961)

I could not have said it better myself.

CAPTCHA = 'against' -- how does /. do it?

Re:Uhh really? (1)

NatasRevol (731260) | about a year and a half ago | (#43545997)

We are creating a set of rules and laws that serve no real usefulness for the advance of real progress.

Duh. Why do you think the copyright laws were made federal in 1972? Because by then the music business had enough money to spend on congress critters, who then created laws to keep the music business profitable.

Re:Uhh really? (1)

gstoddart (321705) | about a year and a half ago | (#43546023)

We are creating a set of rules and laws that serve no real usefulness for the advance of real progress.

Ah, but in Newspeak, 'advance of real progress' means 'securing corporate profits'.

Copyright law is now about maximizing how much companies can make.

We've always been at war with Eastasia.

Re:Uhh really? (1)

lgw (121541) | about a year and a half ago | (#43547187)

Human progress was very slow indeed for all the centuries before "corporate profits" existed - it's not a coincidence that publically funded corporations were created during the Enlightenment. You can go too far in either direction here.

The problem we face has nothing to do with "securing corporate profits," and everything to do with the wrong people making the profits. As the need for traditional distribution vanishes, so should the traditional distributors. That's not any condemnation of the people useful to providing entertainment in the modern world making profits!

No, it's the "securing corp profits" thing. (0)

Anonymous Coward | about a year and a half ago | (#43547551)

And the enlightenment is known for far far FAR more than "creating corporations".

Re:No, it's the "securing corp profits" thing. (1)

lgw (121541) | about a year and a half ago | (#43547681)

And the enlightenment is known for far far FAR more than "creating corporations".

There were brilliant philosophers throughout history, but the Enlightenment led to the industrial revolution because, perhaps for the first time in history, there was great reward to be had for turning new ideas into products (arguably, the same thing was true during the height of the Roman Empire).

While there are certainly downsides to a system where the principal means to wealth is making a profit in the market, it's vastly better than a system where principal means to wealth is assisting the ruler in fighting his wars. The profit motive by and large strongly incentivizes both innovation and maintaining a stable, peaceful society, - as long as we keep the lid on people gaming the political system.

That's just insane. (0)

Anonymous Coward | about a year and a half ago | (#43545885)

It destroys the one good thing about the DMCA.

Does that also mean (to be consistent) that earlier works don't get the federal copyright term extensions, so anyone can use (say) Mickey Mouse?

Re:That's just insane. (2, Funny)

bill_mcgonigle (4333) | about a year and a half ago | (#43545945)

Does that also mean (to be consistent) that earlier works don't get the federal copyright term extensions, so anyone can use (say) Mickey Mouse?

A court can easily decide these cases through careful construction of a three part test:

1) Does the interpretation give benefits to a corporation that is a large campaign contributor?
2) Does the interpretation give benefits to a corporation that is a large campaign contributor?
3) Does the interpretation give benefits to a corporation that is a large campaign contributor?

Re:That's just insane. (1)

bkaul01 (619795) | about a year and a half ago | (#43546255)

Federal judges aren't elected ...

Re:That's just insane. (1)

digitrev (989335) | about a year and a half ago | (#43546265)

But they are appointed by elected officials.

Re:That's just insane. (0)

Anonymous Coward | about a year and a half ago | (#43546113)

so anyone can use (say) Mickey Mouse?

I'm pretty sure that Mickey Mouse is a trademark, not a copyright. This might mean that anyone could release Fantasia, but only Disney could create a new work.

Dastar v. Fox (3, Interesting)

tepples (727027) | about a year and a half ago | (#43546407)

I'm pretty sure that Mickey Mouse is a trademark, not a copyright. This might mean that anyone could release Fantasia, but only Disney could create a new work.

So you're claiming that Disney could use a "reverse passing off" theory under the Lanham Act. My understanding of the finding of the Supreme Court in Dastar v. Fox [wikipedia.org] is that a trademark cannot be used to extend the term of any of the exclusive rights under copyright in a work.

Re:Dastar v. Fox (0)

Anonymous Coward | about a year and a half ago | (#43547181)

I think the GP's point is that Disney has a trademark on quite a few of the characters appearing in Fantasia, so if anybody were to do a sequel they wouldn't be able to use any of those characters. But once the original falls into the public domain anybody could rerelease that as that particular work would no longer be protected.

Not that it really matters, if that work is in danger of being released into the public domain, Disney will request that it be extended again.

Re:That's just insane. (1)

Overzeetop (214511) | about a year and a half ago | (#43546121)

The other question is do these works qualify for DMCA protection if they are distributed in an encrypted format?

Re:That's just insane. (1)

CrimsonAvenger (580665) | about a year and a half ago | (#43547767)

The other question is do these works qualify for DMCA protection if they are distributed in an encrypted format?

Since this only applies to "sound recordings fixed before February 15, 1972", unless that same recording (the one made before 15FEB1972) was encrypted, it's a NEW recording and the DMCA applies normally.

This is why (3, Informative)

Endo13 (1000782) | about a year and a half ago | (#43545913)

US copyright is currently bullshit. Those songs should have been public domain for 13 years already.

Re:This is why (0)

Anonymous Coward | about a year and a half ago | (#43546063)

Why? Is it because you want to hear this song? That is *easy*. Call up your local radio station and ask for it to be played. Within an hour they will. If they do not take requests they will tell you, try next station...

The game is rigged against us. It is setup for those with money to give out 'campaign contributions'.

BTW did you know for as little as 2k-10k you can get a bill in front of congress? Some of them sell themselves cheap. Local guys are even easier. Usually a 'night in a swanky hotel' is enough and it doesnt even have to be with hookers just a 'speaking engagement' at some local bar and you pay the bill.

Re:This is why (3, Informative)

jedidiah (1196) | about a year and a half ago | (#43546965)

> Why? Is it because you want to hear this song?

Nope. Because copyright exists to encourage the current set of artists to create new. Expansive copyright interferes with that and even prevents the publishing of old work too.

Qustion... (0)

Anonymous Coward | about a year and a half ago | (#43545929)

I wonder if Run DMC uses Run DMCA?

Simple solution (0)

Anonymous Coward | about a year and a half ago | (#43546049)

Stuff from before 1972 should be put in the public domain. Change the law. Problem solved. No more rent seeking.

Kill the DMCA, then (4, Insightful)

gman003 (1693318) | about a year and a half ago | (#43546059)

The only good part of the DMCA was that it applied a safe harbor protection - if you follow the law, and take stuff down when asked and don't openly solicit unauthorized content, you're safe.

But now apparently that protection doesn't apply to roughly half the things that could potentially be uploaded. So you have to manually review and approve any file, since you can't know whether it falls under DMCA safe harbor or not. Thus eliminating any potential benefit of the DMCA until 2044 or so, longer if they extend copyright durations again (so, longer).

So then, what's the point? It's a law that applies far too harsh penalties, outlaws modifying your own property if it's been magically declared a "protective measure" and is abused more than most tax loopholes. If the one reasonable bit about it has been struck down, well, I think it needs to be gone. And I'm sure Google et al. will be agreeing.

Re:Kill the DMCA, then (1)

erroneus (253617) | about a year and a half ago | (#43546321)

Yes... the minefield is officially open for business. If we thought all of this patent troll craziness was bad, wait for the trolls who license pre-'72 works to start coming out of the woodwork.

Severely Damaging Decison (5, Insightful)

JWW (79176) | about a year and a half ago | (#43546095)

This decision is severely damaging.

I don't think it will be long now before suits are filed against most of the digital locker services to try to "catch" them with pre 1972 content.

And if they manage to shut down the file lockers, they will ramp up the courage to go after YouTube. And with it already proven that it is nearly completely impossible for YouTube to perfectly filter everything automatically, they will lose.

I have decided, and told my children to look at any music they are purchasing and make sure it is not copyrighted by UMG.

I am fine with buying digital music online, but I am not fine with giving any money to a company who supports policies that could destroy the internet.

Companies that try to pursue actions and decisions that cripple the internet are IMHO enemies of mankind.

Extension. (1)

Holi (250190) | about a year and a half ago | (#43546099)

But wouldn't the Copyright extension it enjoys now fall under the federal statute, or did the states grant the copyright extension too?

Re:Extension. (1)

digitrev (989335) | about a year and a half ago | (#43546185)

According to the article, "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this Title until 2067". So in other words, the old works get the old protections for 95 years, as well as any new protections. So in this case, it seems that the old State-licensed works get all the benefits of the copyright term extension acts.

Re:Extension. (1)

JWW (79176) | about a year and a half ago | (#43548099)

Wow its almost like these old recordings have been given Super Copyright powers after falling in a vat of government legislation...

Content owners get do have and eat their cake (0)

Anonymous Coward | about a year and a half ago | (#43546155)

DMCA doesn't effect them when it would limit their pre-1972 rights.
        (DCMA immunity in exchange for takedown doesn't work.)

DMCA still useful for preventing defeating DRM protection devices.

We really need to overhaul these Mickey Mouse copyright rules to cover the original bargain from the Constitution.

Rending the point of the safe harbor moot (0)

Anonymous Coward | about a year and a half ago | (#43546221)

Rending the point of the safe harbor moot in one fell swoop. If end users can put up any material that can get a provider in hot water then all end user content has to be inspected before/during upload. That's why the safe harbor provision was added. So now providers have to waste huge amounts of money/manpower fighting this?

So they have it BOTH ways? (1)

erroneus (253617) | about a year and a half ago | (#43546281)

So the 1972 federal changes did NOT extend the copyrights on older materials? I can't see how it can be both ways. All this time, everyone seems to have been working under the assumptions that all works protected under copyright had their rights extended and all that under the 1972 federal copyright changes. So their protection has been enhanced and the defense provided by the DMCA is not available because the 1972 federal copyright changes do not cover...

That's just idiotic. Another commenter said it easier I guess -- they get to have their cake and eat it too. Insane.

Re:So they have it BOTH ways? (0)

Anonymous Coward | about a year and a half ago | (#43546803)

I found this summary to be the best guide out there

http://copyright.cornell.edu/resources/publicdomain.cfm

Most sound recording from before 1972 (this is a wide range of music people still listen to eg Beatles, johny b goode, elvis, etc) will enter public domain in 2067 on Feb 15.

They are subject to state laws now. Which have a MUCH lower threshold for entering public domain. As the 95 year is fairly recent (1998). This may come back to bite them in many ways.

Always a Federal power, not state... (2)

gstrickler (920733) | about a year and a half ago | (#43546297)

Article 1, Section 8 [usconstitution.net] , clause 8 of the US Constitution says: "The Congress shall have Power .... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

So, it should always have been under federal jurisdiction, not state. Indeed, that should make any state laws regarding it null and void due to federal supremacy.

Unless delegated to the states (1)

tepples (727027) | about a year and a half ago | (#43546437)

If Congress has power to enact a statute, it has power to delegate the details to a regulatory agency. I'd imagine it has similar power to delegate the details to the states, as it appears to have done in this case.

Re:Unless delegated to the states (2)

maroberts (15852) | about a year and a half ago | (#43546765)

Yes but unless it specifically did delegate those rights to the states, then surely state laws have no standing as they infringe on Congressional powers.

Re:Unless delegated to the states (1)

tepples (727027) | about a year and a half ago | (#43547041)

unless [Congress] specifically did delegate those rights to the states

It did. Another user quoted the statute in question [slashdot.org] .

Re:Unless delegated to the states (2)

gstrickler (920733) | about a year and a half ago | (#43547755)

Actually, that's an ex-post-facto delegation, it doesn't show where Congress ever delegated the authority to the states in the first place, which would be necessary for the state laws to be valid. So, when you find that statute, you'll have something. Here's a head start for you, you have to find a federal statute that supercedes the first federal copyright act, the Copyright Act of 1790 [wikipedia.org] .

Re:Always a Federal power, not state... (0)

Anonymous Coward | about a year and a half ago | (#43546503)

Having the power and using it are two different things

Re:Always a Federal power, not state... (1)

the eric conspiracy (20178) | about a year and a half ago | (#43546897)

All this says is that the Feds can make IP laws. Nothing about the states not being able to do so if there is no federal coverage.

Re:Always a Federal power, not state... (2)

gstrickler (920733) | about a year and a half ago | (#43547669)

Incorrect. Article 6 [usconstitution.net] , clause 2, states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

10th Amendment [usconstitution.net] states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As this is an explicit grant of authority to Congress, it is exclusively a federal power. Unless Congress delegated that power to the states, the states have no authority. It's questionable whether they could even legally delegate it to the states.

So by that logic... (0)

Anonymous Coward | about a year and a half ago | (#43546613)

Waterboarding is not torture until it was defined. Okay, I get it. Also, piracy was legal until it was made illegal. Awesome.

Re:So by that logic... (1)

guruevi (827432) | about a year and a half ago | (#43546781)

Piracy (the hijacking of boats on the high seas) was never legal. You can't define a word which means "doing an illegal act" and have it be legal or legalized.

Copyright infringement is not piracy (what in most countries still is a civil matter is not a criminal matter). Piracy in it's most liberal definition is the replication of items to look like the original but it's not the original which is also a civil matter (the states should not be in the business of protecting specific corporations) and not criminal (because society as a whole is not necessarily harmed by it)

Re:So by that logic... (1)

tragedy (27079) | about a year and a half ago | (#43547691)

Piracy (the hijacking of boats on the high seas) was never legal. You can't define a word which means "doing an illegal act" and have it be legal or legalized.

http://en.wikipedia.org/wiki/Letter_of_marque [wikipedia.org]

Re:So by that logic... (0)

Anonymous Coward | about a year and a half ago | (#43547941)

Letters of marque did not make *piracy* legal, it made the hijacking of the boats *not piracy*.

Having it both ways (1)

wiredlogic (135348) | about a year and a half ago | (#43546637)

So big media copyright holders want to have it both ways then. They get to apply federal law to extend the copyright term beyond 56 (28+28) years and then they get to claim that those same grandfathered pre-1976 works are not subject to federal DMCA provisions.

If federal law shouldn't apply then we should strip all post-1976 federal provisions from the copyright of older works. From Wikipedia here are the federal laws that would be nullified:

Copyright Act of 1976 - extended term to either 75 years or life of author plus 50 years; extended federal copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law
Berne Convention Implementation Act of 1988 - established copyrights of U.S. works in Berne Convention countries
Copyright Renewal Act of 1992 - removed the requirement for renewal
Uruguay Round Agreements Act (URAA) of 1994 - restored U.S. copyright for certain foreign works
Copyright Term Extension Act of 1998 - extended terms to 95/120 years or life plus 70 years
Digital Millennium Copyright Act of 1998 - criminalized some cases of copyright infringement

After stripping away these provisions a work created before 1976 with one renewal would have a copyright term of 28+28 years rather than the silly 95 years we have today.

The next you are at a resteraunt (0)

Anonymous Coward | about a year and a half ago | (#43546703)

Ask them why they don't sing "Happy Birthday" anymore and instead warble some made of cheer squad chant?

We live in insanity and call it normal.

State Law, State Limits (1)

GrokvL (673310) | about a year and a half ago | (#43546845)

Wouldn't this finding also mean the 1000-year federal extension on copyrights would not apply? Further, wouldn't jurisdiction enter play from all angles, such as location of the uploader, location of the server, location of the company being sued, and of the rights owner?

Intersting twist.. (0)

Anonymous Coward | about a year and a half ago | (#43547047)

So what if UMG has used the DMCA to get pre-1972 songs removed from sites.

Wouldn't that open up a big can of worms?

Don't you just love this crap? (2)

PortHaven (242123) | about a year and a half ago | (#43547265)

Seriously, so basically, the old copyrighted works gain the extended protections of the Federal laws...BUT NOT the responsibilities and protections to the people.

Do you ever get the feeling that Congress just does what they're paid to do?

Interesting! DMCA is a sword with many edges. (3, Interesting)

Sloppy (14984) | about a year and a half ago | (#43547455)

US Code Title 17 section 1201(a)(1)(A) says "No person shall circumvent a technological measure that effectively controls access to a work protected under this title" and then goes on to commit other atrocities against the people and industry. Am I to understand that this court has just said that works copyrighted prior to 1972-02-15, would not count as "works protected under this title"?

This may be good. (0)

Anonymous Coward | about a year and a half ago | (#43547549)

What would have happened to Grooveshark pre-DCMA? Since the law fails to grant 'safe-harbor' to Grooveshark (and others) for pre-1972 works, does it also mean DCMA notices for pre-1972 content are also invalid? Couldn't Groovesharks ToS include a statement that any content you upload is copyrighted by you, or falls into permitted usage (licensed, fair use, etc), they can shift the burden back to the customer and ignore a take-down notice and refer it to the customer? Isn't it generally how it worked back then?

Do your best (1)

Libertarian001 (453712) | about a year and a half ago | (#43548437)

to comply with all the laws and this is the thanks you get.

Sometimes it's just easier to higher an assassin.

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