Google Shills Pile On: Feds don’t protect pre-72 recordings except with the Safe Harbor

MCMURPHY

I must be crazy to be in a loony bin like this.

From One Flew Over the Cuckoo’s Nest, screenplay by Laurence Hauben and Bo Goldman, based on the novel by Ken Kesey.

The creative community was visited with yet another example of the corruption of the so-called “safe harbor” with the ruling from the Second Circuit Court of Appeals in the Vimeo case.

This is particularly offensive to pre-72 artists and their heirs who already have the government’s boot on their throat with the “Pandora loophole” that gives digital services a dodge on paying royalties on pre-72 recordings under the compulsory sound recording license.  The Vimeo ruling just gave artists the government’s other boot up the butt on safe harbor.

Here’s the logic:  Law clerks who are wannabe Googlers see to it that Google always wins.

No, sorry, here’s the logic:  Federal copyright law does not protect pre-72 sound recordings which are protected (if at all) under state law.  The Pandora loophole is a supposed ambiguity in the federal copyright law establishing a performance right in sound recordings, a compulsory license in those recordings, and a royalty for that compulsory license.

So according to Pandora, federal law does not protect pre-72 masters from exploitation by Google, YouTube, or Vimeo.  Only state law protects those recordings because the Congress did not explicitly include them.

But–when it comes to federal protection of the insane DMCA safe harbor, federal law protects tech companies exploiting those same pre-72 recordings.  The Second Circuit gets to this tortured interpretation of the safe harbor by relying on the copyright treatise written by Google’s Senior Copyright Counsel and rejected the learned counsel of the U.S. Copyright Office which favored excluding pre-72 from safe harbor.

The Second Circuit’s decision turned on this sentence (p. 28):

Congress did not qualify the phrase “infringement of copyright” by adding, as it did in other circumstances, the words, “under this title.”
So because Congress didn’t say “under this title” to limit the safe harbor to exclude pre-72 recording, remember that they didn’t say “under this title” to limit the compulsory sound recording license to exclude pre-72 recordings, either.
Remember, this is the court that gave us the absurd ruling in Viacom v. YouTube that allowed Google to build yet another business on our backs.
Because what’s good for the goose is just good for the goose.  No ganders allowed.

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