"The article in THR.esq (the Hollywood Reporter's legal blog) that first announced the lawsuit talks much about the ambiguous status of pre-1972 sound recordings under Section 114 of the copyright act (the section providing for royalties for the public performance of sound recordings by digital services), and seems to view the suit as a reaction to the decision in the satellite radio proceeding before the Copyright Royalty Board finding that Sirius XM owed no performance royalty to SoundExchange for its playing of pre-1972 sound recordings (see our article about that decision). As pre-1972 sound recordings are not entitled to Federal copyright protection, the Board decided that there could be no payment due to SoundExchange (which collects royalties for payments made under Section 114) as there was no Federal right. While that point seems to be well-established, a close reading of the complaint makes it appear that it is not the public performance that is the principal basis of the lawsuit, but instead the copies that are made in the digital transmission process and by certain features of Sirius's Internet streaming services that allow the download or on-demand playing of their digital streams."
"The issues raised by the lawsuit demonstrate the complexity of the music rights issues generally, and the added complication raised by pre-1972 sound recordings. This case raises the issue of whether the buffer and server copies used in a digital transmission process have any real independent value - a value that the copyright office has questioned before as these copies are really just incidental to the public performance (a question raised last week in the Commerce Department's "Green Paper" on copyright, a report that I hope to write about in more detail soon). Questions about pre-1972 sound recordings have also been raised by the recording industry in a thus-far successful state law case arguing that these recordings are not covered by the DMCA safe harbor for user-generated content (see our article here), another issue raised in the Green Paper. The Copyright Office itself has suggested that these sound recordings be brought under Federal law to eliminate some of these questions (see our article here about the Copyright Office's recommendation)."
From: Association for Recorded Sound Discussion List [mailto:[log in to unmask]] On Behalf Of Leggett, Stephen C
Sent: Sunday, August 04, 2013 2:13 PM
To: [log in to unmask]
Subject: [ARSCLIST] "Turtles and Sirius XM: Not Happy Together"
The rather insane Pre-1972 sound recordings copyright law issue rears its head once more.... On a positive note, at least the problem (or quirky anomaly depending on one's POV) is definitely becoming more widely known in the general public and Congressional consciousness/zeitgeist. A few years back, even quite a few members of Congressional copyright subcommittees were unaware of this what-the-heck peculiarity (or outrage) in present copyright law. Hopefully those involved in the lengthy current process to update copyright law will spend a lot of time studying this issue, among many others.
Thanks, Steve Leggett