BS: State copyright laws

Subject: State copyright laws
From: Dicho (Frank Staplin)
Date: 14 Apr 02 - 12:14 PM

Honkingduck.com, that wonderful resource for old time 78s, is no longer airing its collection of records.
They found that state copyright laws covered some of the 78s.
Federal copyright law does not cover "Sound recordings fixed before February 15, 1972" (U. S. Copyright Information Circular 56), but they were unaware of the state laws.
Which states? What is the content of these (various) laws? Any information out there?

Subject: RE: BS: State copyright laws
From: DMcG
Date: 14 Apr 02 - 12:43 PM

... which leads to to option of rehosting hongduck in another state? Which state's law applies to AOL? :-)

Subject: RE: BS: State copyright laws
From: GUEST,Irish Sergeant
Date: 14 Apr 02 - 01:52 PM

his may be a question for a lawyer. I thought copyright was under fedral juristiction and not the states. kindest regards, neil

Subject: RE: BS: State copyright laws
From: GUEST,khandu (away from home)
Date: 14 Apr 02 - 02:05 PM

HonkingDuck was unknown to me until this thread. I wish I had heard of ot earlier. I had not heard of state copyright laws either. Too damned much government interference into private lives!

khandu

Subject: RE: BS: State copyright laws
From: Dicho (Frank Staplin)
Date: 14 Apr 02 - 02:57 PM

For a service provider, such as AOL, this is a real can of worms. In order to operate in a state, they must observe that state's rules. They can be denied a license to operate in that state. They must fight through the state's courts (and probaby lose), then hit the federal courts. If they win there, the state can file appeals. It could reach the Supreme Court after a couple of years, but in the meantime, the costs would be high.

Subject: RE: BS: State copyright laws
From: McGrath of Harlow
Date: 14 Apr 02 - 05:07 PM

I don't understand these things, but what would a state copyright cover? Just stuff that had been published in that state or everything in the known universe?

Subject: RE: BS: State copyright laws
From: Richard Bridge
Date: 14 Apr 02 - 06:53 PM

I think Okiemockingbird is your man but from what I remember US states law can apply not only to acts done within the jurisdictions of the states but also to others - I'm sure I remember the Southern District of New York asserting jurisdiction relating to acts infringing US copyright done outside the US.

In principle, federal pre-emption applies only to things within a federal jurisdiction. Therefore if federal law does not confer copyright in sound recordings (until a certain date) state law may do so. If federal law had conferred such copyright but it had expired, that would be different.

But, of course, I am only qualified in English law.

Subject: RE: BS: State copyright laws
From: artbrooks
Date: 14 Apr 02 - 07:01 PM

The US Federal copyright law is here, and it seems to be saying that the Federal rule superceeds any conflicting state law regardless of date. But I'm no lawyer (in deference to those who may be, I won't comment about my parents having been married when i was born).

Subject: RE: BS: State copyright laws
From: Dicho (Frank Staplin)
Date: 14 Apr 02 - 09:02 PM

Whatever the jurisdictions, Honkingduck.com thinks that there is enough of a problem that they do not wish to fight.

Subject: RE: BS: State copyright laws
From: Nathan in Texas
Date: 14 Apr 02 - 09:50 PM

But if enough of us rally round honkingduck, maybe they'll be encouraged to do so.

And, can someone combine this thread with the honkingduck silenced thread on the same subject?

Subject: RE: BS: State copyright laws
From: Dicho (Frank Staplin)
Date: 14 Apr 02 - 10:54 PM

NY State: Offenses
The Article 31, as I read the highlights, seems to indicate that federal law prevails- but, not being a lawyer, and my son, a lawyer, but not in copyright law) plead ignorance.
This is just one state- 49 more to check!

Subject: RE: BS: State copyright laws
From: Dicho (Frank Staplin)
Date: 14 Apr 02 - 11:49 PM

Took a look at Tennessee because of the importance of the Nashville music industry. The only references I found were to federal laws and regulations except for some provisions regarding the University system.

Subject: RE: BS: State copyright laws
From: SeanM
Date: 15 Apr 02 - 12:25 AM

And remember - just because the site folded isn't evidence that they WERE violating any laws. It would (to me) indicate that at bare minimum someone threatened them. Whether they were in fact in violation, or whether they decided it was not worth fighting the expensive fight (even if they were in the right), or any other reason for them folding (not limited to the possibility of them wanting to fold anyway and using this as an excuse) is a matter known only to them.

M

Subject: RE: BS: State copyright laws
From: JohnInKansas
Date: 15 Apr 02 - 05:31 AM

I had already posted in the related thread honking duck before I noticed this one. Since this thread actually seems more appropriate, I'll repeat myself here.

My immediate lay-person's response was that the concept of "State Copyright" is pretty preposterous, given the Federal law(s) on the subject.

Of course, attempting to search for a specific "legal concept" is pretty much useless. Lawyers get the big bucks by doing (sending their legal aides to do) the searches, and then can only quote odds on whether you might get caught at something that was missed.

I did find one thread, at gigalaw that presents a way that state laws might actually be a problem. The site offers/assumes the opinion that Federal copyright law preempts state law for the determination of "who owns" something; but that state law covering contracts and agreements (if I correctly interprete their legalspeak) could control the "use" of a copyrighted property within a given state - in ways not regulated by the Federal law.

I guess I'd have to concede that, given how the law seems to work, it is possible that there is a real "threat" here. Hopefully, someone will come forward with something more reassuring.

Given that the historians say that 99.44% of Supreme Court decisions over the first 200 years dealt (almost) exclusively with "property issues," one must wonder why "intellectual property" is such a problem. (Anyone want to insert the "obvious" guess?)

John

Subject: RE: BS: State copyright laws
From: GUEST,PeteBoom (at work)
Date: 15 Apr 02 - 08:49 AM

Ummmm... just to be troublesome... based on Lee Wilson's (who is an attorney specializing in the music business) book "Making it in the Music Business" ((c)1995, 1999 by Lee Wilson, Allworth Press, MY, NY)...

"There is no such thing as a state copyright statue; there is only one copyright statues in the U.S. and that is a federal statute."

This stems from Article 1, Section 8, Clause 8 of the US Constitution - which grants Congress the right to pass copyright laws -

Regards -

Pete

Subject: RE: BS: State copyright laws
From: Richard Bridge
Date: 15 Apr 02 - 09:16 AM

States definitely do have copyright law, not necessarily statues, but based on common law concepts arising from the 1609 UK copyright law. California for example used to confer copyright on music that had not been reduced to a material form. Check Nimmer on Copyright (It's a very big book now).

Okiemockingbird, where are you when we ned you?

InoBU - is this relevant for you?

Subject: RE: BS: State copyright laws
From: Louie Roy
Date: 15 Apr 02 - 11:51 AM

I believe there is actually no such thing as a state copyright law.I have copyrighted songs while living in WA,OR,MT,ID,SD and Mi and over the last 50 years and this is the first time I ever heard of anything such as this.I firmly believe whoever informed honkingduck that states did have a copyright law didn't know what they were talking about Louie Roy

Subject: RE: BS: State copyright laws
From: McGrath of Harlow
Date: 15 Apr 02 - 12:07 PM

I wouldn't normally comment on typos, especially since I'm notorious for them myself. But with two posts in succession talking about copyright statues, maybe there's a risk of setting some kind of legal precedent. Statutes, I believe.

Subject: RE: BS: State copyright laws
From: PeteBoom
Date: 15 Apr 02 - 01:03 PM

McGrath - Quite right - I should be punished for typing too quickly... missed the last "t" - TWICE!

Pete

Subject: RE: BS: State copyright laws
From: Dicho (Frank Staplin)
Date: 15 Apr 02 - 01:44 PM

Extract from CALIFORNIA CIVIL CODE:

"980. (2) The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047, as against all persons except one who independently makes or duplicates another sound recording that does not directly or indirectly recapture the actual sounds fixed in such prior sound recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound recording."

I believe that this provision of the CODE is self-explanatory. If you wish to dispute, you are free to seek settlement through the Courts of the State of California (He, He, He!)

Subject: RE: BS: State copyright laws
From: GUEST
Date: 16 Apr 02 - 04:37 AM

IF you don't read anything else - read the final paragraph of this article from the Wall Street Journal.

Since it was dealing with music - why did you label it B.S.?

Rules & Regs

By ROB GAVIN

Who sets the rules?

The California Supreme Court is expected later this year to hear a case that some observers say could make the Golden State the legal jurisdiction for cyberspace.

The high court will decide whether an Internet posting, made in another state but seen in California , can subject a person or business making the posting to California law. In August, the California Appeals Court held that it could, indeed, writing in its opinion that "the reach of the Internet is also the reach of the extension of the poster's presence."

Civil libertarians and technology-industry groups say if the Appeals Court is upheld, almost anyone, anywhere could be hauled into a California court for making an Internet posting alleged to be harmful to the state's residents or industries. "We believe that would result in a flood of litigation in California ," says Jason Mahler, vice president and general counsel of the Computer and Communications Industry Association, a Washington, D.C., trade group likely to file a brief arguing for the Appeals Court decision to be overturned. "You post something on the Internet, [Californians] complain about it, and you might be beholden to courts across the country."

The case before the California Supreme Court involves a Texas man, Matthew Pavlovich, who, as a Purdue University student in Indiana three years ago, worked on a Web site on which were posted computer codes to break the DVD encryption that prevents movies from being illegally copied. In 1999, the DVD Copy Control Association, a movie and technology industry group based in Morgan Hills, Calif., that licenses the encryption software, sued 521 defendants, including Mr. Pavlovich, in Santa Clara County Superior Court in San Jose to stop the posting of the decryption codes, arguing that they had violated the state's trade-secrets law. Mr. Pavlovich responded that California courts couldn't assert jurisdiction since he had not set foot in the state, made personal contacts, entered into agreements or specifically targeted any person or business in California . He also denied posting the decryption software.

The DVD Copy Control Association, however, argued that California courts have jurisdiction because Mr. Pavlovich knew, or should have known, that software that permits the illegal copying of DVDs would harm the motion-picture industry that is centered in California . Both the trial and appeals courts agreed.

Robert Sugarman, a New York lawyer representing the copy-control group, dismisses concerns that these rulings could extend California law to any place with an Internet connection as "doomsday rhetoric." The lower courts merely upheld established legal principles that allow states to protect their citizens from illegal acts aimed at them from beyond their borders.

The California Supreme Court isn't expected to rule for several months.

Pitted Against Piracy

The motion-picture industry isn't only going to court, but also to Congress, to try to protect intellectual property distributed over the Internet. Movie studios, record companies and other content providers want the federal government to require hardware and software companies to build into their products measures that would prevent the pirating of music and video.

Sen. Ernest "Fritz" Hollings, a South Carolina Democrat and chairman of the Senate Commerce Committee, recently filed legislation that would give the entertainment and technology industries a year to reach consensus on antipiracy manufacturing standards, which then would be adopted as federal regulations. If the industries failed to agree, the federal government would develop and put into place its own standards.

The ultimate goal of the proposal, says a Commerce Committee spokesman, is to encourage the spread of broadband, considered critical to reinvigorating the tech industry. Sen. Hollings's reasoning: Consumers won't upgrade to more expensive broadband connections until better content is available, and studios aren't going to distribute movies and programming over the Internet unless they're assured they won't get ripped off.

Technology companies, however, say such technical decisions should be left to the industry and government intervention would only stifle innovation and the competition from which the best solutions arise. "If the government had mandated that you could only view your movies on a Betamax machine, we wouldn't have had VHS, and we wouldn't have DVD," says Emery Simon, counsel for the Business Software Alliance, a group based in Washington, D.C., that represents hardware and software companies.

But content providers say that years of industry negotiations have yet to produce antipiracy standards, and it's time for the government to step in. "It's been content company vs. computer company vs. network company, and we haven't gotten the job done," says Preston Padden, executive vice president of government affairs for Walt Disney Co., Burbank, Calif.

Complaints Go Mainstream

Here's another sign that e-commerce has gone mainstream: Internet-related problems broke into the top 10 consumer complaints in at least three states last year. In Wisconsin, complaints about Internet service providers ranked ninth, while in Maryland, complaints about transactions with individuals, primarily through online auctions, also ranked ninth. In Michigan, where the category includes online privacy, junk e-mail and Web-based pyramid schemes, Internet-related complaints ranked third, behind telemarketing and natural-gas prices.

Nationally, Internet complaints more than doubled in two years, growing to 49,987 last year from 22,054 in 1999, according to the Federal Trade Commission.

Meantime, states and the federal government are stepping up Internet enforcement. Michigan and Wisconsin, for example, each have set up special units to investigate cyberfraud. Maryland is looking for funding to establish a similar unit. The FTC periodically conducts "surf days," in which its investigators plug keywords into Internet search engines to uncover unscrupulous Web sites. Last fall, in the wake of the Sept. 11 attacks, FTC investigators used the keyword "bioterrorism" to root out Web sites selling defective gas masks and other fraudulent methods of preventing anthrax exposure.

--Mr. Gavin is a staff reporter in the Wall Street Journal's Olympia, Wash., bureau.

Subject: RE: BS: State copyright laws
From: Dicho (Frank Staplin)
Date: 16 Apr 02 - 02:10 PM

Thanks, Guest. The key phrase is "established legal principles that allow states to protect their citizens from illegal acts aimed at them from beyond their borders."
The upshot is that anyone who has a license to do business in California, and this could be any of the media owners, can avail themselves of the courts to preserve their rights to a property.
Item 980 of the California Civil Code, quoted in my post above, has a most troublesome provision with regard to public domain concepts, if it is upheld. To quote again in brief, the rights to a sound recording fixed before ...1972 (provide for) exclusive ownership until...2047.

Subject: RE: BS: State copyright laws
From: M.Ted
Date: 16 Apr 02 - 02:45 PM

Dicho--you misunderstand the meaning and purpose of the act that you have quoted--it functions to establish ownership of a recording prior to the time that the copyright law allowed that copyright could be established by recording something--there are many different laws cited here, each with its own purpose, and it requires a copyright attorney, and, frequently, a court ruling, to establish which are relevant in what situations--

It isn't really possible to figure out what happened to Honkingduck without looking at the documents--my guess is that they were simply intimidated by the threat of going through the legal process--big businesses with large legal departments have found it a useful strategy to use this device to get concessions that they are not entitled to--and it, in itself, is illegal in a number of states, including California--

Subject: RE: BS: State copyright laws
From: JohnInKansas
Date: 16 Apr 02 - 02:46 PM

I may be missing something, but the California citation appears to say that you pay royalties if you play to original record, but permits someone else to record the song. ????

John

Subject: RE: BS: State copyright laws
From: Dicho (Frank Staplin)
Date: 16 Apr 02 - 03:12 PM

John, that seems to be correct; an "independent fixation" is permitted. The code does seem to be applicable to Honkingducks situation, in that they use recordings "fixed" before 1972, and it is still a long ways to 2047. At least that is my reading, which has been in error many times before.

Subject: RE: BS: State copyright laws
From: Bennet Zurofsky
Date: 16 Apr 02 - 07:36 PM

I'll put my attorney hat on for this one. In general the U.S. Constitution's patent and copyright clause is interpreted as giving the federal government exclusive jurisdiction in the field of copyright and therefore preempting any state laws. Thus, for the most part, State copyright laws are unconstitutional on the grounds that the states lack the power to legislate in this area.

However, beginning in the 1970's, the U.S. Supreme Court became very favorably disposed to intellectual property claims and began, for example, to permit states to protect ideas that were not original enough to earn a patent to be protected by state trade secret laws. Unfair competition laws also began to have a wider scope and were likely held to apply in some states to such matters as appropriating for private works that had not yet been copyrighted. In general, "legitimate" commercial interests came to be protected even if they did not fit the copyright mold and the federal courts were not holding state court rulings in this area to be preempted.

Prior to the 1970's, copyright laws only protected the composers of a musical work. They did not protect the recorded performance of the work. There was also a compulsory royalty arrangement which still stands which provides that although a composer might control the first recording of a song, after that anybody could record it without specific permission from the composer, as long as they paid the compulsory royalty for each record sold. Some tried to exploit this and record piracy was born. Thus, if you pressed a bunch of singles of the Beatles singing "I Want to Hold Your Hand," and paid the compulsory royalty to Lennon & McCartney (but nothing to EMI or the Beatles as performers), you had a legitimate argument that you were violating no copyright law (because there was no copyright protecting the actual recording by EMI or the actual performance by the Beatles) and that no one could do anything about it because federal law preempted any state effort to do something about it by creating a copyright type of protection for the actual recording and/or performance.

The record companies then convinced California to try to do something about it, and the law quoted above was passed to try and push the envelope and provide explicit state protection for an area that Congress was refusing to regulate. I don't remember what became of the resulting litigation in which the "pirates" (kind of like today's MP3 crowd) challenged the law, mostly because Congress passed a major amendment to the copyright law shortly after California passed its law and the new federal statute explicitly protected the recordings themselves (and the contracts between the performers and the recording companies protected (in theory) the performers). That is when the practice of a p in a circle began, to indicate that the "phonograph" was itself protected by copyright. That is also why many older recordings were re-released in new packaging to qualify as a new recording and get the federal copyright protection with a p-in-circle date.

As to the shutdown of someone's enterprise, there is no way that a company willing to pay a royalty can be shut down for playing old recordings. If extortionate rates are demanded, and the enforcers (ASCAP, BMI & the Harry Fox Agency) generally do not seek exorbitant rates, then one may go to court to have the court set the rate. If one insists upon playing the recordings while paying no royalty, then a court will shut you down.

Many folkies and MP3 fans seem to think that there is something immoral about copyright owners demanding royalties from them for their use of another's creative efforts. They're entitled to their opinions, and some copyright protectors are excessive, but in general the law works pretty well to provide some income for creative artists while permitting others to exploit their works at reasonable rates.

-Bennet D. Zurofsky, Esq. Reitman Parsonnet, P.C. Newark, NJ

Subject: RE: BS: State copyright laws
From: Richard Bridge
Date: 17 Apr 02 - 07:34 AM

Gee: free work from another lawyer (grin)

Subject: RE: BS: State copyright laws
From: GUEST
Date: 20 May 02 - 11:30 AM

States of the U.S. have no "copyright" laws rightly so-called.

State law governed the author's common-law right of first publication, often erroneously called "common law copyright", though I think common-law claims could be federalized in some cases.

U.S. copyright law didn't cover recordings (as distinguished from the music recorded) until 1972 or thereabout. Some states passed anti-bootlegging statutes regulating the copying of the recordings themselves (as distinguished, again, from the music on the recording).

Subject: RE: BS: State copyright laws
From: Dicho (Frank Staplin)
Date: 20 May 02 - 12:00 PM

I found I have neglected to thank Bennet Zurofsky for his explication of the so-called state copyright laws. I am glad that I am not litigationally affected by them- only to the extent of not being able to listen to Honkingduck's collection.
A station in this province (CKUA, also on the internet) is broadcasting recordings from the Asch (sp?) Folkways files, but with permission, and also have a series of programs called the Long Weekend (period between the two world wars) which airs tapes of recordings of that period. A number of the recordings used by Honkingduck are included.

Subject: RE: BS: State copyright laws
From: McGrath of Harlow
Date: 20 May 02 - 01:47 PM

Anyone heard anyhing more from honking duck? From what's been written here there seems no reason to believe that the worries about state copyright actually have any force - but honking duck still hasn't put the records back in place. And I for one really miss them.