UMG Wins Round 2 Against Grooveshark

by Elliot Zimmerman, BCS, PA
www.entertainmentlawyer.pro

On Tuesday, April 23, 2013, the New York State Supreme Court of Appeals reversed a lower state court decision favoring Escape Media Group Inc., the operators of the music streaming site Grooveshark. See UMG RECORDINGS, INC., Plaintiff-Appellant, (“UMG”) v. ESCAPE MEDIA GROUP, INC., (“Grooveshark”) Defendant-Respondent, RECORDING INDUSTRY ASSOCIATION OF AMERICA, AMICUS CURIAE, Appellate Div. of the Supreme Court of NY, 1st Department, 100152/10, 9099; 2013 NY Slip Op 02702.

Read the full text of the decision here:

http://www.leagle.com/xmlresult.aspx?xmldoc=In%20NYCO%2020130423328.xml&docbase=CsLwAr3-2007-Curr

UMG, in the initial action, contended that Grooveshark violated its NY common law sound recording copyrights by hosting UMG’s music recorded prior to 1972. The trial court determined that Grooveshark was granted a “safe harbor” under the Digital Millennium Copyright Act (“DMCA”), 17 USC § 512, et seq., and denied UMG’s motion to dismiss that affirmative defense.

Under the DMCA, with respect to works from 1972 onward, online service providers, such as Grooveshark, were granted a “safe harbor” against copyright infringement claims, provided they meet certain obligations, including a process for taking down infringing content uploaded by users upon proper notice. See 17 USC § 512, et seq.

The trial court’s ruling was overturned on the basis that, with respect to copyrighted songs recorded before 1972, safe harbor protection was unavailable because the statute was not specifically retroactive to before that date. The appellate court stated the DMCA expressly provided that “[w]ith respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this Title until 2067…” See 17 USC § 301(c). Cf. Capitol Records, Inc. v. MP3tunes, LLC , 821 F. Supp. 2d 627 (S.D.N.Y. 2011).