Stephen Carlisle: Court Of Appeals Re-Writes the Copyright Act for pre-72 Artists

On June 16, 2016, the Second Circuit Court of Appeals released a truly horrific opinion in the case of Capitol Records v. Vimeo. 1

The case involved the Plaintiffs, all record companies with ownership of pre-1972 sound recordings, which are not governed by Federal law but have been ruled as having performance rights in California and New York. 2 Vimeo, as Jonathan Bailey over at Plagiarism Today quipped is best known as “not You Tube,” 3 makes performances of these sound recordings by allowing users to upload videos containing these sound recordings. Not only does Vimeo make performances of these sound recordings, but distributes copies of them by allowing viewers to download the videos and copy them for free. 4

If I might steal a page from the Electronic Frontier Foundation, the decision is “dangerous” in every sense of the word. It threatens to undo the clear intention of Congress by making the most basic error that a Court can make: ignoring the “plain meaning” of a statute.

In sum, the Court:

  • Ruled that even though “Pre-1972 recordings have never been covered by the federal copyright” 5 they nevertheless are covered by federal copyright for the purposes of notice and takedown.
  • Ruled the “safe harbor” provisions of section 512 apply to pre-1972 sound recordings, even though section 301 clearly says they cannot.
  • Ignored the contrary opinion of the Copyright Office that said safe harbor did not apply to pre-1972 sound recordings.
  • Called the notice and takedown system “an augmentation of rights of copyright owners, 6 but when challenged on this position by an amicus curae that the system “shortchanged” copyright owners, contradicts itself and says “we have no way of knowing.” 7
  • Says workers at Vimeo can’t be held responsible for knowing when something is infringing because they are not “an expert in music or the law of copyright.” 8
  • Examples of Vimeo employees encouraging users to upload infringing content “cannot support a finding of…generalized encouragement of infringement.” 9

So what happened? To my reading, the Court decided the result that it wanted to achieve, then worked backward to try and muster up some reason why this was so, tossing away all logic and the plain meaning of section 301 in the process.

Read Forget What Congress Wrote, Forget What the Copyright Office Wrote; Court Of Appeals Re-Writes the Copyright Act on