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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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April 05, 2005

New York - Common Law Copyright Protects 50-Year Old Sound Recordings

Posted by Ernest Miller

The AP reports that New York's highest court has just ruled many audio works out of the public domain, at least in New York, check your local state law regarding applicable common law copyright (Court Rules Common Law Protects Recordings). Even though sound recordings were ineligible for federal copyright protection prior to 1972, New York has ruled that they are protected by New York's common law:

The state's highest court ruled common law in New York "protects ownership interests in sound recordings made before 1972 that are not covered by the federal copyright act." The result is that Capitol can continue to sue Naxos for copyright violation for records made almost 50 years before the federal copyright law.

"The answer to this question will have significant ramifications for the music recording industry, as well as these litigants," the court stated.

Just the music industry? How about significant ramifications for the public? Seems like the Court forgot why it is called the public domain.

Anyway, read the 36-page decision: Capitol Records v. Naxos [PDF].

[UPDATE] April 7, 2005 - Wiki entry here: Capital Records v. Naxos

The decision is a good history lesson in the distinctions between federal copyright and common law copyright and how they came to be. There are many interesting tidbits of information such as this statement regarding the Copyright Act of 1972: "The Senate was content to permit the states to provide perpetual protection to pre-1972 sound recordings, but the House objected (see id.)." Luckily too, because in Goldstein v. California the Supreme Court held that perpetual state copyright was okey-dokey, as long as Congress wasn't involved:

Petitioners base an additional argument on the language of the Constitution. The California statute forbids individuals to appropriate recordings at any time after release. From this, petitioners argue that the State has created a copyright of unlimited duration, in violation of that portion of Art. I, 8, cl. 8, which provides that copyrights may only be granted "for limited Times." Read literally, the text of Art. I does not support petitioners' position. Section 8 enumerates those powers which have been granted to Congress; whatever limitations have been appended to such powers can only be understood as a limit on congressional, and not state, action. Moreover, it is not clear that the dangers to which this limitation was addressed apply with equal force to both the Federal Government and the States. When Congress grants an exclusive right or monopoly, its effects are pervasive; no citizen or State may escape its reach. As we have noted, however, the exclusive right granted by a State is confined to its borders. Consequently, even when the right is unlimited in duration, any tendency to inhibit further progress in science or the arts is narrowly circumscribed. The challenged statute cannot be voided for lack of a durational limitation.
Read the whole thing.

In the US, we will have to wait until Feb. 15, 2067 for the works to enter the public domain in all states. [Corrected]

Of course, the works remain in the public domain in the UK...

via How Appealing

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