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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 07, 2005

Distribution Loophole in Capital Records v. Naxos?

Posted by Ernest Miller

A couple of days ago I wrote about Capital Records v. Naxos, in which New York's highest court held that New York common law copyright protected 50-year old sound recordings (New York - Common Law Copyright Protects 50-Year Old Sound Recordings). Joe Gratz has now written a brief bit on the article (N.Y.: Pre-1972 Sound Recordings Under Copyright Until 2067). He makes an interesting point:

It’s important to remember that this decision is limited to acts of infringement that take place in the state of New York, and infringement in New York consists only of unauthorized reproduction. So perhaps Naxos could do all of its infringement in Hoboken then truck the CDs across the border and sell them in New York. But that’s the trouble with common law copyright — you just don’t know until somebody sues you.
I don't have the time to delve deeply into New York's common law copyright, as well as their various state statutory provisions. However, I doubt circumventing New York's common law copyright would be as easy as trucking in CDs from New Jersey for several reasons.

First, "the right of reproduction" is actually a fairly recent invention within the concept of copyright. Originally, copyright (as in the Copyright Act of 1790) was about "publishing, printing and vending." While printing might seem to be similar to the "right to reproduce" it was not, and was, in fact, subordinate to the right to publish, which included what we would now consider the right to distribute. So, I think that if we really get into the roots of common law copyright, we would find that it extends beyond the simple right of reproduction and into the right of distribution as well.

Second, in the Supreme Court case Goldstein v. California, which examined state copyright, the Court seems to assume that to obtain one state's copyrighted material you would have to go to a state where the material was not copyrighted:

The interests of a State which grants copyright protection may, however, be adversely affected by other States that do not; individuals who wish to purchase a copy of a work protected in their own State will be able to buy unauthorized copies in other States where no protection exists. However, this conflict is neither so inevitable nor so severe as to compel the conclusion, that state power has been relinquished to the exclusive jurisdiction of the Congress. Obviously when some States do not grant copyright protection - and most do not - that circumstance reduces the economic value of a state copyright, but it will hardly render the copyright worthless. The situation is no different from that which may arise in regard to other state monopolies. such as a state lottery, or a food concession in a limited enclosure like a state park; in each case, citizens may escape the effect of one State's monopoly by making purchases in another area or another State. Similarly, in the case of state copyrights, except as to individuals willing to travel across state lines in order to purchase records or other writings protected in their own State, each State's copyrights will still serve to induce new artistic creations within that State - the very objective of the grant of protection.
Now, this passage doesn't specifically refer to common law copyright, yet it seems that this would be an obvious loophole in a common law copyright scheme were it not the common law practice to prevent such interstate distribution.

Third, Naxos is a bunch of lousy pirates and pirates are bad. Bad, bad, bad. How dare they attempt to profit off another's work some 50 years in the past? Bad, bad, bad, Naxos.

As I've said, I haven't looked into this in depth. I could be wrong.

Don't forget to check out the annotated (or soon-to-be) opinion on the WIKI: Capital Records v. Naxos.

Comments (1) + TrackBacks (0) | Category: Copyright


1. myob1 on April 13, 2005 07:20 AM writes...

And fourth, Naxos DID reproduce outside of New York; according to the decision, the works were originally recorded in the UK and were remastered by Naxos in the UK, and then "distributed for sale in the United States." According to the Naxos website, it is based in Hong Kong and its discs for the North American market are "mainly" manufactured in Canada.

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