Richard Nixon still was president and Gordon Liddy was just proposing a plan involving a Democratic office in a complex called Watergate. Don McLean (American Pie) and Michael Jackson (Ben) had hit tunes and HP introduced the first hand-held scientific calculator. The Godfather was fresh, HBO had just launched as a commercial cable network, lava lamps were hot and so were bell-bottoms for men. That was all so 1972.
But the New York State Supreme Court of Appeals has just brought that year back to the fore in its much awaited ruling favoring Universal Music Group over Escape Media group, owner of the music streaming service, Grooveshark. That decision underscores that timing is everything and tunes from the early Seventies and before may become a slam for operators of online services.
Universal’s original suit claimed copyright infringement by the music streaming site and a key legal issue became Grooveshark’s hosting of unlicensed music recorded before 1972. Before that year — when Bobby Fischer became a chess king and Hurricane Agnes an East Coast killer — there effectively was no “safe harbor” for later-developed online services.
The Digital Millenium Copyright Act, which took effect in 1998, provides protections for services like Grooveshark, YouTube and SoundCloud against copyright infringement claims on music recordings made after Feb. 15, 1972. If Congress had wanted to extend that shield even earlier, it would expressly have done so, the New York appellate court said.
Its closely watched decision effectively puts the burden on site owners to comb their databases to remove pre-1972 recordings or run the risk of being held liable for copyright infringement. The appellate ruling lifts the responsibility from copyright owners like Universal to issue take-down notices and they now can sue services on infringement claims without such notice.
John Rosenberg, attorney for Grooveshark — whose fiscal woes have become public via comments by its CEO — said his client would appeal, telling interviewers: “The court’s decision, if it stands, will significantly undermine the Safe Harbor protections of the Digital Millenium Copyright Act and may severely disrupt the operations of all Internet Service Providers who, like Groovehark, permit access to user-generated music content.”