Taking their cue from a company known as Bluebeat, circa 2009, CBS Radio is claiming that they aren’t playing any recordings with pre-1972 copyrights, given that any such music from that period of time which they do broadcast is remastered, and therefore falls under modern federal copyright law.
Back in 2009, a company called Bluebeat showed up on the market offering all sorts of MP3s from musicians for $0.25 a pop — without a license from the copyright holders. The company claimed that it didn’t need to get a license because all of the songs were specially remastered, in a manner it called a “psycho-acoustic simulation.” Via this, the company claimed, it was not infringing on the original artists’ copyrights and, actually, held the copyright to the songs it was selling itself. This theory was, to put it mildly, completely loopy. It was a twisted attempt to reinterpret 17 USC 114(b) which said:
The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.
Not surprisingly, a judge wasted little time in saying “uh… nope” to Bluebeat.com.
However, I’m reminded of this story as it appears that CBS Radio is trying an argument that is, at least, slightly reminiscent of Bluebeat.com’s in a lawsuit over pre-1972 recordings. As we noted last month, ABS Entertainment, who holds the copyright on a bunch of classic songs, filed what it hopes will be a class action lawsuit against CBS Radio and other terrestrial radio stations, arguing that it’s infringing on the copyrights of pre-1972 songs that it plays on the radio. At this point, we’ve explained the ridiculous and complicated history of the copyright of pre-1972 sound recordings that I’m not going to repeat it. Just click on the link in this paragraph and you can read it there if you don’t remember. Or you can actually read the first few pages of the legal filing embedded below which provide a decent history as well.
In the past few years, various copyright holders have been trying to use this issue of the weird copyright status of pre-1972 recordings as a wedge issue to force more money out of digital streaming platforms, with somewhat mixed results and a few settlements, including big settlements from SiriusXM and Pandora. CBS Radio is fighting back with a really unique argument. It’s claiming that they don’t play any pre-1972 sound recordings, because any of the music they play that was recorded prior to 1972 is played from modern digital remasters of those songs, and thus the copyright on those sound recordings is post-1972 and under federal law, rather than state copyright law. From its filing:
Contrary to those allegations, CBS’s records for the last four years show that CBS did not publicly perform any of ABS’s pre-1972 recordings. CBS does not play
vinyl sound recordings…. In fact, every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-
mastered…. For example, “Tired of Being Alone” is found on UMG’s 2006 The Best of Al Green compilation…. That CD contains the re-mastered version of the song created and registered for copyright in 2000…. The “Let’s Stay Together” recording CBS played is the 2003 re-mastered sound recording as re-issued in 2009 by Fat Possum Records…. Every other song CBS played from plaintiff’s “Schedule A” also came from a CD released many years after 1972.
This is… fascinating. It seems crazy, but, then again, this legal theory was dreamed up by the copyright lawyers at Irell & Manella, the very same law firm that’s pretending to represent a monkey in a copyright case. So, apparently, they like getting creative with their legal arguments.
There is one element in this argument that is so ridiculous as to almost be brilliant. Another “deep in the weeds” argument we’ve discussed in the past concerning copyright law is that of termination rights. Under existing copyright law, most works, even if they’ve been assigned to third parties, automatically return to their original creator after 35 years if those creators invoke their “termination” rights. This right cannot be signed away. And while certain works were exempt, apparently the RIAA lobbyists slept through that meeting and music was not included in the list of exempted works. And, since we just recently passed the 35-year mark since the 1976 Copyright Act went into effect (1978), some musicians have started exercising their termination rights.
And… here’s the crazy bit. One of the RIAA’s arguments against allowing artists to reclaim their copyrights is to argue remastered versions are subject to a separate copyright:
The second option is to re-record sound recordings in order to create new sound recording copyrights, which would reset the countdown clock at 35 years for copyright grant termination. Eveline characterized the labels’ conversations with creators going something like, “Okay, you have the old mono masters if you want — but these digital remasters are ours.”
Labels already file new copyrights for remasters. For example, Sony Music filed a new copyright for the remastered version of Ben Folds Five’s Whatever and Ever Amen album, and when Omega Record Group remastered a 1991 Christmas recording, the basis of its new copyright claim was “New Matter: sound recording remixed and remastered to fully utilize the sonic potential of the compact disc medium.”
In other words… the RIAA labels themselves have previously argued that such digitized and remastered versions are subject to a separate copyright — meaning, they may have screwed themselves with their own words.
From there, CBS Radio makes some more standard arguments accurately pointing out that, contrary to the claims of the copyright holders, California’s state copyright law never recognized a public performance right. That argument failed when Sirius XM made it in California, but it’s true. The idea that California’s state copyright law ever included a public performance right is ridiculous, because such a right was never considered or exercised or even mentioned until just recently. Still, it seems slightly weird to argue the same argument that has already failed in the same court — and, yet, once again there appears to be at least some method to this particular madness.
And that’s where another odd part of the response comes in: CBS Radio invokes California’s anti-SLAPP law, which allows defendants to try to get cases tossed out quickly on the basis that they were filed solely to stifle First Amendment protected speech. The SLAPP argument here seems weak, but that might be on purpose. CBS argues that broadcasting music is protected speech under the First Amendment, and that its “dissemination of the sound recordings at issue is ‘connect[ed] with a public issue or an issue of public interest.'” And thus, it’s effectively claiming that the lawsuit seeks to stifle its First Amendment… protected right to play music on the radio? A weak argument, yes, but perhaps on purpose. As Eriq Gardner notes in his story on this case, when SiriusXM lost its case about the public performance right in California, it was denied a chance for an immediate appeal on that issue (it would have to go through a full trial first). But, by invoking the anti-SLAPP law with the full expectation of losing, CBS Radio may hope to win the larger game, because:
One important if less known aspect of California’s SLAPP law is an automatic right to appeal a denial of a motion to strike.
In other words, CBS could be thinking out its chess moves by sacrificing a pawn in order to advance its rook. Getting an appeals court to weigh in on what California law says about pre-1972 sound recordings would be particularly significant given that over on the East Coast, the 2nd Circuit Court of Appeals will consider what New York law has to say about the topic. If the appellate courts come to different conclusions, this could help set up a showdown at the U.S. Supreme Court.
So, while many of these arguments look silly on their face, the long-term strategy here seems pretty well thought out. Whether or not it succeeds, of course, is a different question entirely.
