Labels Use Questionable Ruling On Pre-1972 Recordings To Sue United Airlines For Streaming In Flight Music

from the DMCA-goes-from-bad-to-worse dept

The court ruling earlier this year that found in favor of Universal Music Group against Grooveshark hinged on an argument made by the plaintiff that the DMCA (and its safe harbors) doesn't apply to pre-1972 recordings, thanks to some clumsy wording within the law itself. While that may not have been the intent of the law, the wording of the law can be interpreted that way -- an argument the court felt was persuasive enough to rule in favor of UMG. Other courts haven't been so sure, but the possibility that the DMCA doesn't apply has resulted in a lot of concerns... and a whole bunch of lawsuits.



As it stands now, post-1972 recordings are clearly covered by federal law (and DMCA safe harbors apply). Pre-1972 recordings are subject to a variety of state laws and, according to the New York court's ruling, are not subject to the DMCA or its safe harbors. The attorney who represented UMG for its appeal, Andrew Bart of New York's Jenner & Block (one of the RIAA's favorite law firms), is also listed as the attorney for the four record labels who are now suing United Airlines for its making pre-1972 recordings available to stream on demand on its flights.

Arista, Sony, Zomba and LaFace Records sued United Airlines, InFlight Productions and RightsCom, in Federal Court. InFlight and RightsCom are both based in London.



The record labels claim the defendants work "in concert" to load copyrighted music onto servers that are installed on United airplanes, "where they are used to transmit performances of plaintiffs' copyrighted sound recordings and music videos to passengers."



The copyright violations are for music recorded before 1972, the labels say. Thirteen pages attached to the complaint contain more than 600 songs whose copyrights the defendants allegedly violate, by artists including Duke Ellington, Miles Davis, Aretha Franklin, Elvis Presley, Janis Joplin, and Jimi Hendrix.

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The list of allegedly infringing tracks is likely pulled from United/InFlight's own playlists which seem to change periodically. The labels claim "thousands" of violations on songs that cost "millions" to produce and are seeking to collect both statutory and compensatory damages, as well as "unjust profits" and court costs.It would seem that both Rightscom and InFlight -- both being in the licensing business -- would have nailed down their end of bargain with these labels several years ago. However, given the fact that a.) the New York court decided the DMCA doesn't apply to pre-1972 music and b.) a blanket license would very likely not satisfy the various iterations of state copyright laws, the labels now have a potentially lucrative vein to mine.Notably, there's no accusation that any recordings-1972 were infringed. If this was a case where licensing violations occurred or a required license was not in place, we would expect the claims of infringement to cover everything in these labels' catalogs. The fact that the claim is limited to pre-1972 musicindicates that the labels, with the help of Bart, are seeking to exploit this DMCA ruling before this loophole is closed by a ruling from a higher court or a rewrite by legislators.Previous to this, the legal activity revolving around pre-1972 recordings has been aimed at site operators whose sites containinfringing content, with labels (UMG, EMI) claiming the DMCA safe harbors don't apply to these recordings. This new move, directly suing companies who make use of the content themselves, shows there's more than one problem with the New York County Supreme Court's decision in favor of UMG back in April.

Filed Under: copyright, music, pre-1972

Companies: arista records, inflight productions, laface, rightscom, sony music, united airlines, zomba