Dear ARSC Members: 

How great it is to see that corporate monoliths Google and Amazon are now part of the “reasonable search” requirements to establish safe-harbor status in the use of pre-1972 recordings under the new MMA. (See details below for how that works). How would anyone even imagine profiting in classical, jazz, folk, or other more esoteric genres after putting in all the time required to do this (expletive deleted)?

In my own research activities I have found Amazon itself (and not its numerous vendors) selling recordings that are in questionable use under copyright law. Do you think the minions at Amazon went through any effort to establish safe harbor status for these recordings? I ordered two of them just to check inserts and labelings on the CD cases. Not a whiff of copyright credit anywhere. In other instances Amazon was continuing a questionable practice of selling uncredited CDs made from tapes which appear to have been the property of ORF (Austria’s public radio). All small  potatoes indeed, but why shouldn’t the copyright office pay a little more attention to the behemoths in the ‘“books and music and everything else” selling business as opposed to setting forth these new requirements for small time users and outfits?  

For those not working with the ARSC copyright committee—some of whose members put in countless hours trying to get a reasonable law through Congress—the relevant provisions for obtaining safe harbor status are listed below. May I kindly be permitted to add that the political and legislative histories of Senator Orrin G. Hatch and the now thankfully retired Rep. Bob Goodlatte, whose names the Music Modernization Act now carries, is not a pretty one. They now join the late, and not lamented, Sony Bono in the Copyright Hall of Shame.

Alex McGehee
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If the user does not find the Pre-1972 Sound Recording after searching the categories below, her search is sufficient for purposes of the safe harbor in 17 U.S.C. 1401(c)(4), establishing that she made a good faith, reasonable search without finding commercial exploitation of the sound recording by or under the authority of the rights owner. The categories are:

The Copyright Office’s database of Pre-1972 Schedules;
One of the following major search engines: Google, Yahoo!, or Bing;
One of the following major streaming services: Amazon Music Unlimited, Apple Music, Spotify, or TIDAL;
YouTube, for authorized uses;
The SoundExchange ISRC database;
Amazon.com, and, where the prospective user reasonably believes the recording implicates a listed niche genre, an additional listed online retailer of physical product; and
In the case of ethnographic Pre-1972 Sound Recordings of Alaska Native or American Indian tribes, searching through contacting the relevant tribe, association, and/or holding institution.
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> On Apr 10, 2019, at 8:33 AM, Leggett, Stephen C <[log in to unmask]> wrote:
> 
> And the 16-page final rule
> 
> https://www.govinfo.gov/content/pkg/FR-2019-04-09/pdf/2019-06883.pdf
> 
> 
> From: Leggett, Stephen C
> Sent: Wednesday, April 10, 2019 8:25 AM
> To: [log in to unmask] <[log in to unmask]>
> Subject: RE: USCO issues final rule on Pre-1972 SR non-commericial use exception
> 
> https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/
> 
> 
> 
> From: Leggett, Stephen C
> Sent: Wednesday, April 10, 2019 8:10 AM
> To: [log in to unmask] <[log in to unmask]<mailto:[log in to unmask]>>
> Subject: USCO issues final rule on Pre-1972 SR non-commericial use exception
> 
> "U.S. Copyright Office Issues Final Rule Regarding the Noncommercial Use Exception to Unauthorized Uses of Pre-1972 Sound Recordings
> Issue No. 761 - April 9, 2019
> ________________________________
> Pursuant to the Classics Protection and Access Act, title II of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act ("MMA"), the Copyright Office has issued a final rule<https://www.copyright.gov/> regarding the noncommercial use exception to unauthorized uses of sound recordings fixed before February 15, 1972 ("Pre-1972 Sound Recordings"), effective May 9, 2019.
> 
> In connection with the establishment of federal remedies for unauthorized uses of Pre-1972 Sound Recordings, Congress established an exception for certain noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited. To qualify for this exemption, a user must file a notice of noncommercial use after conducting a good faith, reasonable search, and the rights owner of the sound recording must not object to the use within 90 days of the notice being indexed in the Copyright Office's public record.
> 
> After soliciting public comments through a notice of inquiry and a notice of proposed rulemaking, the Office has issued a final rule identifying the specific steps that a user should take to demonstrate she has made a good faith, reasonable search. The proposed rule also details the filing requirements for the user to submit a notice of noncommercial use and for a rights owner to submit a notice objecting to such use."
> 
> 
> https://www.copyright.gov/newsnet/2019/761.html