The One Situation Where Record Labels Fear Federal Copyright: Old Sound Recordings

from the keep-the-public-domain-away! dept

Fri, Jun 3rd 2011 3:04am — Mike Masnick

Last year, we were among those who noted a significant problem for sound recordings from about a century ago. While under federal copyright law, works published before 1923 are in the public domain, when it comes to sound recordings, it's a different story. That's because, for quite some time, Congress did not even believe copyright law could apply to sound recordings (which is kind of funny when you realize how many in the recording industry now seem to assume that copyrights on recordings are some sort of birthright). Instead, however, various state laws covered the gap... and did so by creating copyright laws that were even more ridiculous than the federal one. Because of that, many old sound recordings may never enter the public domain, or if they do it won't be for another 50 or 60 years. And, in the meantime, many of those recordings will disappear.

This is of big concern to those who wish to preserve and share the culture from a century ago. After this issue started to get some attention, the Copyright Office agreed to look into things and just held some hearings on the issue. Copycense attended the event and shared copious tweets on the events. As an experiment, I'm going to try to collate some of the more interesting tweets, embedded below, but provide commentary here. There are a few key statements that were made that I'll address in separate posts, but this one will cover the general discussions held during the day.

What becomes clear is that there's a big divide between the legacy industry (record labels & publishers) and librarians and cultural researchers who fear that these works are dying. The people actually concerned about preserving the works are horrified at what's happening, noting that culture is disappearing -- and predominantly impacting "people of color," whose work would be freely available for all to hear if their recordings had been covered by traditional copyright, or done in any other country. Others point out that if librarians can't preserve these works, they may disappear forever.

The response from the music business guys is ridiculous -- but expected. They insist that covering these works under traditional copyright would harm artists (seriously). Rich Bengloff, the head of A2IM (mini-RIAA), insisted that covering these works under federal copyright law would "bring less investment to roots music." Huh? How does that make any sense? The RIAA also worried that there would be "costs" associated with covering these works by copyright, and that it would "raise ownership questions." This is laughable. There are already "ownership" questions, which is why we're stuck in this quagmire in the first place. The RIAA pointed out that "we have concerns that federalization would negatively affect economic value."

That, of course, is ridiculous. First, the vast majority of the works we're talking about no longer are being marketed in any way shape or form. They're disappearing. The few works that are still an issue would still have federal copyright law, which is already pretty strict. The only works that would really have a change are those from before 1923, and that's fine. It's what's good about the public domain. Thankfully, one of the representatives from library groups pointed out that work that goes into the public domain "increases value to the public," which is what copyright is supposed to be about. Furthermore, as others quite reasonably pointed out, just because something is in the public domain, it doesn't mean you can't make money off of it. Just look how many publishers make money selling public domain works.

The RIAA then tried a different tack, insisting that the libraries concerned about all this are being silly, because "according to our research," no library has been sued over this issue. Isn't that comforting? Of course, you never know when a lawsuit might be filed, and the law clearly allows one to be filed. Most libraries wouldn't take that risk. Thankfully, the brand new Registrar of Copyrights, Maria Pallante, was quick to point out that simply wishing libraries become less risk averse is not a reasonable answer here.

Hilariously, the National Music Publishers Association people (NMPA) responded to a question about how taking away 50 different state laws, and moving these works under the single, well-known, standard of federal copyright law would make things "more confusing" by claiming that it would create "uncertainty." Huh?!? On the one hand, we have 50 different, confusing and rarely tested laws. On the other, we have federal copyright law and loads of caselaw. And the NMPA is actually claiming that federal copyright law would be more confusing? Even more ridiculous is Bengloff's claim that because under those state laws most works will go into the public domain in 2067, it "makes it easy to know what we're working with." Except we also know what we're working with under federal copyright law.

Later, Bengloff claims that there's a risk because labels have "invested millions of dollars" in these works. Again, this is misleading and ridiculous. The works still covered by federal copyright would remain in the control of the copyright holders. Furthermore, someone from the Library of Congress properly pointed out that the LOC (and other libraries) have also invested millions in trying to preserve these works. A representative from libraries reminded people that the public is a stakeholder here as well (though apparently not directly represented at the hearing).

Finally, at the end of the day, the real issue makes itself known. The labels and publishers want to avoid "federalization" because they know that this would bring back "termination rights" for the musicians themselves. As you hopefully know, the labels have been vigorously fighting the fact that the musicians themselves can reclaim their own copyrights by "terminating" the copyright assignment. A decade ago, the RIAA was able to sneak a law through Congress (literally by adding a line in the middle of the night that no one noticed until after the bill passed) that turned all such recordings into "works made for hire," which removed termination rights. An outcry from artists (for once) resulted in Congress fixing that "mistake" quickly, but the labels are still infatuated with this, and are gearing up for legal fights over termination rights soon.

It appears the real issue here is that under these state laws, there are no termination rights, meaning the artists themselves can't reclaim the copyrights, and the labels and publishers get to hang onto them for a few more decades. Putting things under federal copyright law would open up an opportunity for artists to get their copyrights back. And, we can't have that.

What's really appalling here is that the label/publisher representatives still pretend to represent artists here -- and one even declares that the labels interests really are aligned with artists' interests, when the subtext of this debate shows that's not true at all.

If you want to see many of the key tweets this is based on, and are reading this via RSS or on the front page, click "read more" below to see a sampling of the key tweets.

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Filed Under: copyright, public domain, sound recordings, termination

21 Comments

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merethan, 3 Jun 2011 @ 4:32am

Laws
On the one hand I find all this messing around with copyrights and the seemingly endless extension of them very disturbing. It looks like money and corporate interests can get everything they want.
On the other hand, laws are only as good as society's acceptance of them. They can't have us all jailed, can they?
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abc gum, 3 Jun 2011 @ 4:43am

We are already in a jail of our own making,
or maybe its more like a loony bin and the craziest are in charge.

Archaeologists often wonder what happened to lost civilizations and look for missing records of their demise, now I have an idea as to why there are no records of their past.
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Bengie, 3 Jun 2011 @ 5:05am

Evil
Copyright is a necessarily evil, just like gun rights. But you have to draw the line when someone going around killing people, and that's what RIAA/MPAA is doing to our culture.

When one's right starts to harm others is when they lose their right, and the MAFIAA is doing permanent damage. Our government doesn't seem to care about our culture being raped, but hey.. money.
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Wayne Borean (profile), 3 Jun 2011 @ 5:27am

Corporate Copyright Scofflaws Strike Again
Yep. Same old same old.

Bunch of thieves.

Wayne
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xebikr (profile), 3 Jun 2011 @ 5:59am

Re: Laws
They can't have us all jailed, can they?

Nope. However, they can effectively prevent any organization from preserving works that are in danger of rotting away, but are still under copyright. Jerks.
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DH's Love Child (profile), 3 Jun 2011 @ 6:24am

Re: Evil
I respectfully disagree with you. I think that in a lot of ways, copyright has long outlived it's usefulness for its intended purpose. I am a semiprofessional (classical) musician and composer. I compose in spite of, not because of, copyright.
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ASTROBOI, 3 Jun 2011 @ 6:25am

Why do they hate PD?
Face it; these guys would like you and me to watch movies, listen to music, play games and read stuff 24 hours a day. And buy all the media from them. Since people must do a few things other than watch movies, the media suppliers are fighting for the hours that remain. Every time a person watches a PD movie that means one of THEIR movies didn't get rented, purchased or watched in a theater. They don't even like the weaker members of their own group. Indie films? who needs 'em? There are plenty of good major studio films you haven't seen yet! A band selling their own CD? Almost as bad as pirates! Order Lady Gaga from Amazon or get yer arse over to Apple and buy a few of OUR singles! The last thing these guys want is somebody pointing out some interesting stuff that is also free to all. And unless its a movie version of a Shakespere play, well seriously, who needs that obsolete stuff. Hey, kid! Did ya see Hurt Locker 2 yet? "Undependables 3 with Rocky and Bruce? No? Got any money?
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Hephaestus (profile), 3 Jun 2011 @ 6:31am

Re:
"Archaeologists often wonder what happened to lost civilizations and look for missing records of their demise, now I have an idea as to why there are no records of their past."

I always wondered why there are no records, and very few historical mentions of Atlantis, damn copyright and super injuctions ...
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wallow-T, 3 Jun 2011 @ 6:40am

Looking at ze tweets, I'm appalled seeing the RIAA argue in favor of state copyright laws.

With the Internet, nationwide retailing of print publications, nationwide TV networks, nationwide movie releases, etc: outside of maybe small local publications, all meaningful business involving copyrights is Interstate Commerce and we know where jurisdiction for that is placed, by the Constitution. Certainly every release by the Big 4 music labels (who drive the RIAA) is in Interstate Commerce.

I can't see why there is not a clear case for Federal pre-emption of state copyright laws.
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Josh in CharlotteNC (profile), 3 Jun 2011 @ 7:08am

Re: Evil
Copyright is a necessarily evil,

Wrong. Copyright is not necessary at all. The stated goal of the idea of copyright is to promote the creation of new works.

The origin of copyright law started only 300 years ago - Statute of Anne, 1709. Everything created before then did not require it.

Automatic copyright without registration has only been in existence for 35 years (Act of 1976). Anything created before then that wasn't registered did not require it.

Extensions to existing copyright are even more absurd. How does extending the copyright term of an already existing work help to promote the creation of it?
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The eejit (profile), 3 Jun 2011 @ 8:14am

Re:
Follow the money - problem solved.
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Esahc (profile), 3 Jun 2011 @ 8:37am

Old Time Radio
Old sound recordings are a huge passion of mine, specifically in the realm of Old Time Radio, much of witch is thought to be in the public domain. It's the public domain that allows the researchers and collectors to actively seek out and restore these recordings and freely distribute them on the internet.

Many of these recordings are only available to the public because of the work of researchers and collectors who convert the audio recordings into mp3s.

Old sound recordings should belong to the public as a part of our collective history and culture not locked away in vaults to deteriorate beyond repair and be lost to history and culture.

Long live the public domain.
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Anonymous Coward, 3 Jun 2011 @ 9:32am

Re: Old Time Radio
Here's the rub: The people who create these things and own the rights are under no obligation to give them out to you. Something being in the public domain does not oblige the holders of the recording to turn them over to anyone. They can burn them if they want, and that is that.

There is no requirements, no obligations, nor should there be.
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MBiel (profile), 3 Jun 2011 @ 10:32am

Public Domain is MORE important
In reading the constitution,it is my belief that the founding fathers believed that the Public Domain was MORE important than the term of patent and copyright protection -- that the exclusive right period was the BAIT to get inventors and authors to create the works that would eventually benefit society when they go into the Public Domain. The operative word is LIMITED. I seem to think that this was stated in a way by Eric Harbeson of MLA today when he was reported by Copycense as saying 'What's lost by a work going to the public domain increases value to the public.'
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Anonymous Coward, 3 Jun 2011 @ 10:58am

It's impossible to win. The media cartels will just tie everything up in court cases until the works decay. If they lose a lawsuit, they'll just start two more; our own "hydra" tactic used against us.
There's really only one solution. Digitize the works secretly and upload a torrent of them to TPB. They'd probably give a front page notice of it, and the RIAA would start throwing hissy fits about the public sharing public domain works. With both sides raising awareness, it'd be sure to attract dozens of dedicated seeders, thus preserving the works.

Hopefully, the librarians will realize that arguing legality with lobbyists is pointless, and do their job instead: preserving culture. If a law says preserving culture is illegal, then that law is wrong and should be ignored.
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Esahc (profile), 3 Jun 2011 @ 12:00pm

Re: Re: Old Time Radio
You are correct regarding the physical recordings (wax cylinders, records, magnetic tapes), if they are the property of someone who doesn't want to give them up. They have the right to do with them as they please.

However, that does not change the fact that what is recorded on the physical objects are of historical and cultural significance and are so old that they belong in the public domain.

What good does it do to let these works be lost forever? What money are they making just letting them rot? If a museum, researcher, or private collector is willing to pay for the original recordings, and pay to have them preserved and digitized for future generations to enjoy or study how is that not a win situation for everyone?
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BeeAitch (profile), 3 Jun 2011 @ 1:28pm

Re: Re: Old Time Radio
"The people who create these things and own the rights..."

You do realize that these two groups are *often* different entities?

While they are under no obligation to release the works, copyright *is supposed to be about promoting culture*, not hoarding.
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Suzanne Lainson (profile), 3 Jun 2011 @ 2:50pm

Re: Re: Laws
However, they can effectively prevent any organization from preserving works that are in danger of rotting away, but are still under copyright.

I believe archival copies can be made, so I would recommend that organizations go ahead and make copies for preservation reasons. Don't wait for the laws to be sorted out.
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Anonymous Coward, 3 Jun 2011 @ 3:49pm

Re: Re: Re: Laws
Sage advice in an era where so many seem to be pre-occupied with avoiding even the remotest possibility of a lawsuit at all costs.
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Anonymuse, 4 Jun 2011 @ 3:09am

Artists are the problem
You know, things would be simpler for the RIAA if they just killed all artists. Really; all this worrying about uppity artists asking for the rights of their own work would just go away. There wouldn't be any scary artists to lurk under the RIAA's beds at night, giving them nightmares and negatively impacting their sleep-market value.

All these artists are pirating the RIAA's time and should be hung by the neck until dead, dead, dead.

Then we could all just watch the wallpaper age or listen to the sweet tune of industrial civilization grinding and roaring around us. At least until the RIAA copyrights that.
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Anonymous Coward, 6 Jun 2011 @ 7:49am

Re: Re: Re: Laws
Archival preservation copies can be made under Federal law, but not necessarily under the current state laws. That's why it's necessary to federalize copyright on pre 1972 recordings. It's illegal to preserve them otherwise.
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