Second Circuit rules safe harbour does apply to pre-1972 recordings

The US Court of Appeals for the Second Circuit has overturned an earlier lower court ruling and said that the safe harbour under the Digital Millennium Copyright Act does apply to pre-1972 recordings. 

The case, Capitol Records v Vimeo, centres on whether recorded music contained in videos posted by users to Vimeo infringes Capitol Records’ copyright.

Capitol Records, EMI and Virgin Records America sued Vimeo in December 2009 at the US District Court for the Southern District of New York for direct, contributory and vicarious infringement.

The district court ruled that the safe harbour was not applicable to sound recordings before 1972 because they were protected by state laws.

But in its June 16 judgment the Second Circuit ruled that the safe harbour does apply to pre 1972 recordings.

The Second Circuit said: “We conclude that the safe harbour does apply to pre-1972 sound recordings; and therefore protects service providers against liability for copyright infringement under state law with respect to pre-1972 recordings.

“The district court’s grant of partial summary judgement … is therefore vacated,” the court added.