Is It Time To Bid Farewell To All Pre-1972 Music?

Taking advantage of a copyright void which was created for all pre-1972 music after the law was updated in 1976, the RIAA has been trying to claim that the state laws which existed before before this update intended to include a public performance rights, meaning that services like Pandora, Sirius XM, and possibly even terrestrial radio are in violation of this theoretical law.

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Guest Post by Mike Masnick of TechdirtAs we've been covering over the past few years, there's been a big battle going on over the copyright status of "pre-1972 sound recordings." That may sound like a weird thing to be arguing over, but it's due to a weird bit of history in US copyright law. You see, for a very long time, Congress believed that copyright law could not cover sound recordings. However, various states stepped in and either through explicit state law or through common law, created copyright-like regulations for sound recordings. When copyright was finally updated in the 1976 Copyright Act, pre-1972 works were left out of the federal copyright system, even as federal copyright law basically wiped out all state copyright law for everything else. This has created some weird issues, including that some songs that should be in the public domain under federal copyright law are locked up in perpetuity. A simple and reasonable solution to this would be to just move pre-1972 sound recordings under federal copyright law and level the playing field. But, the RIAA has resisted this. That might seems strange, until you realize that the RIAA and its friends saw this weird quirk of copyright law as a wedge issue with which to try to squeeze more money out of everyone. It started a couple years ago when basically everyone started suing Sirius XM and Pandora for playing pre-1972 music without getting a separate license to do so. Once again, the reasoning here is a bit complex, but prior to the 1976 Act, there really wasn't even any concept of a "public performance right" for sound recordings — only for compositions. The idea of one for sound recordings only came into existence with the updated copyright law. But what the RIAA and friends are trying to do is to rewrite history and pretend that these various state laws also retroactively meant to include a public performance right, and that these newer services were violating it.

In a series of rulings in the last year, Sirius XM has lost a few of these lawsuits, while winning another one. This has many copyright scholars quite concerned that decades of settled law are being tossed out. More importantly, we pointed out that this could mean the end of hearing classic songs from the 50s and 60s on internet and satellite radio. But, it appears that the RIAA and friends are not stopping there. Last month they took things up a notch and started suing terrestrial radio stations over pre-1972 music as well. And that brings up a whole different issue. As you probably know, terrestrial radio does not need to pay at all for the use of sound recordings (it does pay songwriters/publishers for the use of the composition), because Congress has (correctly) noted that songs on the radio are a form of advertising, and thus the musicians benefit from it, and there's no reason to pay fees for the performance again. While the RIAA whines about this, the major labels own decades-long practices around payola make it clear that they, too, recognize that radio play is valuable for the musicians and worth paying for — rather than worth being paid for.

Every few years, the RIAA pushes to have Congress change the law, and to start making terrestrial radio pay a "performance rights fee" for sound recordings as well. But that never seems to get anywhere. So, instead, the RIAA appears to be attacking this via the pre-1972 loophole, and claiming that even though Congress explicitly has said that radio doesn't need to pay, such a promise does not apply to pre-1972 songs. The new lawsuits, from ABS entertainment, aims to be a class action lawsuit for a bunch of pre-1972 music, and has targeted terrestrial broadcasters who also stream online, including CBS, iHeartRadio (previously known as Clear Channel) and Cumulus — the big three radio broadcasters. In the meantime, one of the first original cases concerning this issue, against Pandora, has now moved to the 9th Circuit appeals court and a whole bunch of copyright experts have weighed in hoping that the appeals court will reverse the lower court and remind everyone that these state laws never included a public performance right in the first place. Unfortunately, this is the 9th Circuit, which is somewhat famous for its wacky copyright rulings, so pretty much anything goes here. However, should it come out in favor of the RIAA's position, it could mean that pre-1972 music will start disappearing not just from streaming and satellite radio, but from traditional terrestrial radio as well.