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Thanks for posting that link, Stephen, and I look forward to reading that
article in full.  From the abstract, it looks like she has a point.  When
Congress does act in a particular area, it often "preempts the field" for
state law in the same area, which must fall aside.

I think one likely result if any of this pre-1972 litigation succeeds is
simply pushing the entire streaming industry offshore.  None of the rest of
the world shares our U.S. view of public domain as existing only for the
unborn.  Since the internet is not "by country," we can already stream
internet radio from distant corners of the globe.  I don't know the extent
to which the US can regulate satellite transmissions that originate from
other countries.

Best,
John Haley




On Mon, Apr 20, 2015 at 9:18 AM, Leggett, Stephen C <[log in to unmask]> wrote:

> "[Un]Happy Together: Why the Supremacy Clause Preempts State Law Digital
> Performance Rights in Radio-Like Streaming of Pre-1972 Sound Recordings"
>
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2595794
>
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of Leggett, Stephen C
> Sent: Wednesday, April 15, 2015 3:08 PM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] More pre-72 sound recordings lawsuits filed
>
> Interesting argument arising out of the unique  status of pre-1972
> recordings
>
> "If the Supreme Court ever gets involved in this issue, it might be here.
> Although SIriusXM spends less time on this issue in its brief, it could
> have been an important consideration in why the 2nd Circuit is taking up a
> review rather than kicking it to a state appeals court. Essentially,
> SiriusXM's lawyers Daniel Petrocelli and Robert Schwartz are arguing that
> it broadcasts to millions of subscribers across the country, and that the
> "practical effect of applying a New York performance right to Sirius XM
> would thus be to require Sirius XM to comply with New York law nationwide."
>
> -----Original Message-----
> From: Leggett, Stephen C
> Sent: Wednesday, April 15, 2015 3:03 PM
> To: [log in to unmask]
> Subject: RE: [ARSCLIST] More pre-72 sound recordings lawsuits filed
>
> Latest development
>
>
> http://www.hollywoodreporter.com/thr-esq/appeals-court-agrees-review-sirius-788996
>
> "Appeals Court Agrees to Review Sirius XM's Challenge Over Pre-1972 Music
> The 2nd Circuit will take up the issue of whether New York protects the
> public performance of older songs — and whether that violates the U.S.
> Constitution.
>
> SiriusXM's warning to a federal appeals court that broadcasters might pull
> all pre-1972 sound recordings from the airwaves has paid off. On Wednesday,
> the satellite radio giant got the 2nd Circuit to grant its petition for a
> review just as lawmakers get set to take up the issue as well.
>
> When Congress amended copyright law in the 1970s, only sound recordings
> authored after 1972 were given protection.
> ......"
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of Leggett, Stephen C
> Sent: Tuesday, February 03, 2015 10:09 AM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] More pre-72 sound recordings lawsuits filed
>
>
> http://www.broadcastlawblog.com/2015/02/articles/what-washington-has-in-store-for-broadcasters-and-digital-media-companies-in-2015-part-2-court-cases-congressional-communications-and-copyright-reform-and-other-issues/#more-4848
>
>
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of John Haley
> Sent: Tuesday, January 27, 2015 11:00 AM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] More pre-72 sound recordings lawsuits filed
>
> Thanks Paul.  At the time our country was founded, the Crown owned all
> scientific discoveries.  Our Founding Fathers envisioned a patents and
> copyrights system (with the same great wisdom they showed in so many other
> areas) that would grant a reasonable period of exclusivity to inventors
> and artistic creators, so they could profit from their endeavors, but then
> ensure that the benefits of scientific advancement and artistic creation
> would benefit the entire public when that period was over.  That was their
> overriding point--and that is where their vision of public domain came
> from.  Corporate greed has consistently eroded PD ever since, so that it
> hardly exists in this country.  Politically, public domain now has no real
> advocates, except ARSC.
>
> Re all the streaming services, they have merely taken advantage of the
> fact that Congress never provided any copyright protection for audio
> recordings prior to 1972.  Nothing illegal at all in what they have been
> doing, nor evil, nor immoral.  Perfectly legal and up until now, perfectly
> acceptable.  The current spate of lawsuits is driven by sheer corporate
> greed (the original artists are never going to get a nickel out of all
> this), as well as lawyers looking for a great payday in statutory legal
> fees, by arguing for some kind of new protection that was plainly never
> there.  They are all trying to create new law, new ways to soak the public
> and enrich the fat cats.  Also, all this state law copyright stuff is a
> recent invention, coming from the last decade.  All one has to do to see
> that is look over the legal precedent that New York supposedly relied on to
> create sweeping, unprecedented state common law on state copyright.
>
> Best, John
>
>
>
>
>
>
>
> On Tue, Jan 27, 2015 at 10:00 AM, Tom Fine <[log in to unmask]>
> wrote:
>
> > Why do people feel entitled to hear this music for free on streaming
> > services? I can see there being a legitimate beef if the songs
> > disappear for streaming services people subscribed to and pre-paid
> > under the impression that those songs would be available ("premium
> > customers"). But otherwise, people need to get real and expect pay for
> > professionally produced music just like they always have! It's not
> > like CDs cost an arm and a leg. Almost every song on a streaming
> > service was ripped from a CD, meaning either the CD is still in print
> > or the music can be bought as downloads (in a less-lossy format than
> streamers) from Amazon or iTunes.
> > Many Amazon MP3 downloads are around $6 per album, chump change.
> >
> > And anyway, now that all these blogs have sounded the alarm,
> > stream-catching software downloads are in overload. It's not rocket
> > science to call all the old tunes you want up on Spotify and record
> > them before they get taken down, if you're that desperate.
> >
> > Where I'd have an objection is if the tunes were to be taken down from
> > streaming services and then taken out of print. That would violate the
> > use it or lose it ethic.
> >
> > Finally, here's a "bold prediction" -- all of these tunes will remain
> > available to paying ("premium") customers of streaming services
> > because there will be a deal worked out where royalties are paid on
> > them. It's also worth noting, there is not a united opinion about
> > streaming in the record business. Especially in Europe, some
> > executives see this as a great marketing tool and/or they feel it is
> > inevitable because it's what consumers want. I suspect there is a
> > cadre of trial lawyers in the US who have convinced some record execs
> > that it's a good idea to file these lawsuits, which could very well
> > backfire on the industry the way suing Napster downloaders did.
> >
> > -- Tom Fine
> >
> > ----- Original Message ----- From: "Leggett, Stephen C" <[log in to unmask]>
> > To: <[log in to unmask]>
> > Sent: Tuesday, January 27, 2015 9:45 AM
> >
> > Subject: Re: [ARSCLIST] More pre-72 sound recordings lawsuits filed
> >
> >
> >  https://www.techdirt.com/blog/?tag=classic+rock
> >>
> >> http://www.hypebot.com/hypebot/2015/01/all-of-the-
> >> big-streaming-services-just-got-hit-with-lawsuits-over-
> >> pre-1972-sound-recordings.html
> >>
> >> http://www.scribd.com/doc/253778575/Zenbu-v-Google-Pre-
> >> 1972-Sound-Recordings-Complaint#scribd
> >>
> >> http://www.avclub.com/article/sony-apple-and-google-sued-
> >> streaming-songs-recorde-214365
> >>
> >>
> >>
> >> -----Original Message-----
> >> From: Association for Recorded Sound Discussion List [mailto:
> >> [log in to unmask]] On Behalf Of Paul Urbahns
> >> Sent: Tuesday, January 27, 2015 9:11 AM
> >> To: [log in to unmask]
> >> Subject: Re: [ARSCLIST] More pre-72 sound recordings lawsuits filed
> >>
> >> John Haley wrote:
> >>
> >>  Congress certainly has the power to federalize pre-1972,....  but
> >>> since in our poor country public domain barely exists at all,
> >>> totally contrary to what our Founding Fathers had in mind, that is
> >>> not going to happen.
> >>>
> >>
> >>
> >> John brings up an excellent point that has not been mentioned in this
> >> thread before.  The original purpose of copyright laws was so that a
> >> creator of a work, for example an author of a book or poem, would be
> >> able to make a decent living through their personal life from their
> >> creation. It was never intended to be forever.
> >>
> >> The basic purpose of public domain is to inspire new creations that
> >> otherwise might not be possible, by allowing new adaptions based on a
> >> PD creation.
> >>
> >>
> >> Paul Urbahns
> >> Radcliff, Ky
> >>
> >>
> >>
>