Re: [ARSCLIST] The Incompetence at ENHS

[Mike Richter <mrichter@xxxxxxx>]

Michael Shoshani wrote:

> Well, it's more tangled than that, isn't it?  So far as my (admittedly
> limited) understanding is, prior to 1972 there was no Federal copyright
> in sound recordings - only States rights laws, which of course varied
> with jurisdiction.  Were we to be discussing print media, the only
> question that would be coming up regarding works copyrighted from 1923
> onward, is whether the copyright was renewed correctly at the end of its
> term. If it was, that copyright was extended with the Bono act. If it
> was not, it fell into public domain ages ago.
>
> Sound recordings are a royal pain in the nethers because, as James Wolf
> points out, the LC is bound to observe the strictest interpretation of
> the various state laws, of which New York's is apparently the strictest.
> My own question is whether a court decision from the State of New York
> should be applied outside that state's jurisdiction, i.e. in Washington,
> DC. Since we have already seen the courts consider US laws to be broken
> by foreigners in their own country when their actions enable US citizens
> to break US law (I am specifically thinking of the Dmitriy Sklyarov case
> in which a Russian citizen selling a 'crack' for eBook protection in
> Russia to a clientele that included US purchasers was arrested on US
> soil while speaking at a computer conference several years ago), my
> guess is that yes, someone serving historic acoustic recordings on a web
> server outside New York may sooner or later find himself or herself in
> trouble with that state, for no other reason than the fact that
> residents of New York state would have access to the material - thus the
> site operator would be breaking the law because he or she would be
> "doing business" in that state. But as I am not a lawyer, this is all
> uninformed (and possibly misinformed) conjecture.
>
> I'm wondering if we will ever get the legal situation straightened out
> to the point where we can legally have a US version of Canada's Virtual
> Gramophone.

Unfortunately, the situation is more complex than that.

First, the significance of 1972 is that February 15 (IIRC) of that year 
is the date from which recording is recognized as "fixing" sound. One 
cannot copy something that is not fixed, such as an idea or even a 
spoken statement which was not broadcast or recorded. Before cinema was 
regarded as fixing moving images on film, individual frames were printed 
and registered to establish copyright.

U.S. law is based on the date at which the information was fixed; I 
understand that most international laws are based on the date when the 
information was published. So an unreleased recording might be out of 
U.S. federal protection while public domain in the rest of the world.

The issue in New York (and Colorado, but that's somewhat incidental) is 
that state law explicitly incorporates common law. The Supreme Court 
asked New York's top court for its interpretation of common law. The 
finding was that common law preserved rights for eternity. So until 
federal law comes into effect, every sound recording not explicitly 
placed in public domain by the holder of rights is protected. The New 
York Appelate Court finding under the circumstances became the basis of 
the Supremes' ruling.

As to buying from another state, I am on even shakier ground here than 
in the rest of this. My belief is that the "full faith and credit" 
clause in this case basically says that the most restrictive law applies 
to all states. That does not mean that another state will prosecute; in 
all likelihood, any legal action will be a civil matter filed in federal 
court.

Mike
--
mrichter@xxxxxxx
http://www.mrichter.com/