Grooveshark suffers setback in copyright ruling by New York court


Published: Thursday, April 25, 2013 at 5:07 p.m.
Last Modified: Thursday, April 25, 2013 at 5:07 p.m.

A New York state appellate court ruled Tuesday that Gainesville-based Grooveshark can be held liable for copyright infringement under state law for pre-1972 songs uploaded by users to its online music streaming service.

The ruling has possible widespread implications for Internet service providers.

The decision reverses the July 10, 2012, ruling by New York Supreme Court Judge Barbara Kapnick denying Universal Music Group’s motion to dismiss Grooveshark parent company Escape Media Group’s defense in a state copyright lawsuit.

Grooveshark plans to appeal that decision to the state court of appeals, New York’s highest court.

Grooveshark contends that it is protected under the safe harbor provision of the 1998 Digital Millenium Copyright Act. The DMCA says Internet service providers cannot be held liable for copyright violations of content posted by users as long as they remove the content once notified by the copyright owners.

However, the appellate court agreed with Universal’s contention that the DMCA does not apply to pre-1972 recordings since Congress in 1971 extended federal copyright protection only to recordings “fixed” on Feb. 15, 1972 or after and the DMCA did not expressly spell out that it applied to older songs. That left in place state copyright protections for older songs, hence Universal filed its lawsuit in state court.

“The Court’s decision, if it stands, will significantly undermine the safe harbor protections of the Digital Millenium Copyright Act and may severely disrupt the operations of all Internet service providers who, like Grooveshark, permit access to user-generated music content,” Grooveshark attorney John Rosenberg said in a prepared statement. “As a result, Grooveshark intends to appeal the court’s decision and to seek legislative action on this critical issue, not only for its own interests but for the industry as a whole.”

In its ruling, the state appellate court disagreed with a 2011 federal court ruling in Capitol Records vs. MP3tunes that the DMCA applies to pre-1972 recordings.

Internet service providers, including Grooveshark, argue that the intent of the DMCA is to foster fast and robust development of the Internet. Excluding pre-1972 recordings would thwart that intent by spawning legal uncertainty and forcing providers to verify the copyright date of each song, a prohibitively costly and time-consuming process.

In the appellate court ruling, Judge J.P. Mazzarelli noted the conflict in interpreting the intent of the copyright law and DMCA, writing, “it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this court to do so by fiat.”

If Grooveshark loses on appeal, Universal still would have to prove copyright infringement. Grooveshark’s countersuit that Universal interfered with its business dealings still stands.

The company also is facing a separate pending federal suit filed by Universal that contends Grooveshark’s management knowingly uploaded copyrighted songs themselves and directed employees to do the same. Universal has been joined in the suit by Warner Bros., Sony and other music labels.

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