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Some Notes on Capitol Records, Inc. v Naxos of America Inc. - by Brendan Scott
Wednesday, April 13 2005 @ 11:56 AM EDT

Most lawyers, if they are any good, will try to keep you from ever having to step foot in a courtroom. You'll understand why, when you read about Capitol Records, Inc. v. Naxos. It's a jaw-dropping decision that is so weird, when a journalist first sent it to me, I thought it was a joke.

Weird things can happen in courtrooms, which is why you should try to stay out of them, and that seems especially true when Beatles music is soon to enter the public domain in the UK. When weird things do happen, the case generally proceeds to the Supreme Court. This case is very likely to be appealed, but while we wait, we are entertained by the nauseating prospect -- unless you are a record company -- of perpetual common law copyright on sound recordings dating from pre-1972, thanks to New York State common law. Of course, it's a record company that is involved. Two of them, actually. God forbid music in the public domain since the 90s in the UK should be available to anyone without paying a record company first. Here's part of a commentary by Norman Lebrecht, "Whose Music Is It Anyway?", that explains the facts of the case:

Over the past decade we have enjoyed a renaissance in the appreciation of historic performances. Naxos, the impulse-buy classical label which sells discs at five pounds, dollars or euros the world over has been reissuing early recordings that had been long deleted by the music biz, which functions on a flow of hyped-up novelty. Ownership of these antiques was uncontested, their perceived value meagre.

Using mint exemplars from Yale University Library, Naxos restored to circulation the imposing sound of Rachmaninov in his own concertos and the more hesitant tones of Prokofiev at the piano. The proud voices of Elisabeth Schumann and Kirsten Flagstad found new admirers; the formative conductors Felix Weingartner and Willem Mengelberg returned to our shelves. These recordings had gathered dust for a generation. Some had never been transferred onto LP, let alone CD. Their restoration was revelatory.

So long as Naxos messed with esoterica, the major labels turned a deaf ear. But Klaus Heymann, the Hong Kong-based label’s German owner, was keen to prove a point. He encroached on such EMI memorabilia as Menuhin in the Elgar concerto, Artur Schnabel in the Beethoven sonatas and Casals in the Bach suites, which had never fallen out of print.

Suddenly, 50 years of mechanical copyright, which is the European norm, did not seem such a long time. Kathleen Ferrier, one of Decca’s all-time bestsellers, is out on Naxos. The debut operas of Maria Callas – I Puritani, Norma, La Sonnambula – are also there and Glenn Gould’s inimitable 1955 account of the Goldberg Variations will fall free come New Year. Callas still sells more CDs than any opera singer alive today and Gould’s icon has pervaded contemporary art and film. Naxos may have begun with educative intent but now it was peddling prime product.

EMI took the case to the US, where mechanical copyright is protected for 75 or 95 years at movie industry insistence. The victory won last week by its Capitol subsidiary has drastic implications. Even if copyright expires, the court ruled, common law can be applied to assert the rights of the original owner. That means, in effect that EMI regains perpetual control of all recordings all the way back to Edison.

The losers in the case aren't just Naxos, he points out. The losers are us, as Pogo might put it, the public. Now access to this rich cultural heritage is exclusively for those with money and only at the record company's whim. What happened to the public's interest in all this? Whose culture is it? Is there to be no public domain left at all? Is it going too far to opine that the record companies have become the enemies of culture?

The first article I wrote for Groklaw spoke about Grokster, P2P, the public's interest in it, and a Peruvian singer named Yma Sumac:

Shawn Fanning had an idea for a more efficient way to share music using a distributed model over the internet, P2P. His idea wasn't quite fully formed, because Napster had a centralized server, where everyone had to plug in to reach everyone else. But his idea was simply that it would be efficient if everyone who had a file others might like made it available on his computer and vice versa.

Because the internet is nothing except a voluntary agreement to connect to other computers, he realized that this meant you could share whatever is on your computer with anyone in the world who was also connected to the internet, without having to get a domain name, a DNS server, an internet address, etc.

Here is a description from an Australian school of law paper of how peer to peer was an improvement:

"Before peer to peer, if you wanted to serve files from your PC you needed a permanent IP address, domain name, registration with DNS servers and properly configured web server software on the PC. With peer to peer technology your computer storage, cycles and content are made available because the PC via modem becomes a node that operates outside the DNS system, having significant autonomy from central servers with the ability to be accessed by other users. It is file sharing on the internet that occurs outside of the traditional forms of file transfer- http and ftp."

In short, it's cheaper and easier. Instead of a funnel, with a media outlet distributing through its narrow end, everyone on the internet could just share whatever they had with anyone, even just one individual, who wanted it.

It caught on because it works so well, not just because some used it in ways eventually defined as illegal. Instead of a company collecting what it thinks it can sell to a large enough group of consumers to be able to make a profit, the internet makes niche distribution easy and realistic.

If I want to hear Yma Sumac singing some esoteric Peruvian folk song, in meat space I am going to have a hard time finding her. But on the internet, she is easily found. And reading her bio there, you can't help but notice how copyright was used to reduce how much of her music is available: she made a CD herself in 1988, the bio says, after the height of her career was past, of her own music, but included a "remix" of some old material of hers without asking permission of EMI/Capitol Records, which promptly pulled the CD from the shelves for copyright infringement. That CD is just lost. It's hard to see how such a use of copyright benefited anyone, even EMI, which could have released the CD, taking its cut, but never bothered to do so. Surely the artist was harmed and so was the public, at least the part of the public that likes to listen to singers with a 5-octave range.

The Court of Appeals was asked to decide some questions raised in Naxos, and did they ever. Here [PDF] is the Court of Appeals' handiwork. EMI just won the right to do to any artist what it did to Yma Sumac.

Brendan Scott, an Australian attorney, takes a look at the case and its implications for us, and, being as deeply in shock as the rest of us, looks at the decision as if he were a Martian who suddenly lands in New York's Court of Appeals. He tries very hard to figure out how such a peculiar decision might be arrived at, and asks, How do you guys ever innovate over there? A very good question.

The answer is, unless the Supreme Court provides some balance, we'll be doing it less and less.


Some Notes on Capitol Records, Inc. v Naxos of America Inc.
~ by Brendan Scott

Last week, in a 7-0 slapdown, the New York Court of Appeals handed down a decision on a certified question from the Second Circuit (i.e., the Second Circuit asked for guidance on a specific point of law) finding that common law copyright subsists (in New York) in sound recordings made prior to 1972, even if they were made outside the State -- Federal statute law preempts common law in respect of recordings made after that time. I am not an expert on U.S. law, so I won't presume to analyse the legal standing of this case against existing precedent. However, I will outline some of the history of the case, outline some "Martian Lands in New York" sort of questions to be considered as a result of it and set out some short notes on the impacts on open source.


In the 1930s the Gramophone Company Limited (now EMI Records Limited, the parent company of Capitol Records Inc (Capitol)) made sound recordings in England of a number of artists including Yehudi Menuhin, Edwin Fisher and Pablo Casals. On a number of occasions in the past, in response to repeated attempts to create it (or resurrect it, depending on your viewpoint), the UK legislature has passed legislation expressly wiping out any possibility of the existence, in the UK, of common law copyright. In fact, the very first "modern copyright Act" (the Statute of Anne) probably had this effect (in 1709). As such, the only copyright which exists in England is that granted by the legislature, and that was set at 50 years from recording. Therefore, by 1990 copyright in England in the recordings had expired.

In 1996 Capitol exclusively licensed the U.S. marketing rights to the recordings in question. Naxos of America Inc. (Naxos) acquired the original shellac records and remastered them, correcting some artefacts in the recordings, and began (in 1999) selling them (to critical acclaim) in the U.S.

Capitol, once it became aware of Naxos' actions, told Naxos to stop selling its remastered versions. We can assume that Naxos responded to Capitol consistently with the time honored tradition among lawyers, which usually takes the following form "Dear Sir, thank you for your letter dated [date], but received on [date] relating to [matter]. Your assertions are both groundless and preposterous. Bite me! Yours etc.," -- whence the court case.

As a result of the decision, common law copyright subsists in sound recordings made prior to 1972 and that copyright exists in perpetuity, subject to preemption by federal statute. At present, this means that it will expire in 2067. The date it was originally due to expire was 2047, however the the Sonny Bono Copyright Extension Act has extended it by another 20 years. By that time there will have been roughly 3 more such Acts passed. Given that Congress has already demonstrated its will in this regard if you are sufficiently foolishly naive to expect common law copyright will expire at that time, please contact me about some real estate transactions that may be of interest to you.

The parties to the suit, like a number of similar decisions which fundamentally alter the copyrights of everyone in the country, were both record companies. You can imagine what problems there might be for a court to craft a judgment which finely balances the interests of everyone who is potentially affected by the decision when the only view the court is presented with is a view of copyright seen through the eyes of two copyright vendors. It is unlikely that either of them will give too much attention to the views of the rest of society, simply because their experience doesn't afford them the information to do so. It is for this reason that courts will, on occasion, permit a third party to also express a view -- these interlopers are called amicus curiae -- friends of the court. Thankfully, that happened in this case, with the court also hearing from the Recording Industry Association of America who, no doubt, would have put forward a dispassionate and objective view of the history and role of copyright in the economy.

A Martian in New York at the Court of Appeals

As I said, I am not in a position to argue the rights and the wrongs of the decision by reference to U.S. legal precedent. I do, however, think I am in a position to make some pragmatic observations about the case from the view of the reasonable individual fresh off the space ship from Mars right in the middle of New York who just happens to choose the Court of Appeals as their first port of call in preference to the other tourist destinations on offer.

First, how on earth can the general populace have faith in decisions where their interests are not represented? It is arguable that, since copyright vests in everyone who creates a work, therefore the interest of copyright vendors is the interest of all copyright holders. Unfortunately, in practice unless you happen to own, or have ready access to, a municipal, state, country or worldwide distribution channel, copyright rights are of little, if any, value to you. Just ask the average author receiving less than the average wage from their creative work. This is not an asymmetry you find when dealing with property rights.

Second, Martians generally believe that effective and vigorous competition is a good thing. Why is the court endorsing an arrangement, the practical effect of which is the creation of a trade barrier preventing New York citizens from accessing the best price for a product? All of the original recordings in question are available for free (i.e., are not subject to copyright) in the UK -- their country of origin and their place of manufacture. Surely, if pencils were being given away in the UK, a decision preventing their importation and sale in New York, except through a single vendor who, by the way, because of their privileged position might choose to charge a hefty premium, would be roundly condemned.

Third, Capitol is a subsidiary of a UK company. I take it you haven't quite got the hang of protectionism just yet. You're supposed to protect domestic companies (d'oh!). You crazy guys. Not only will New Yorkers be paying more for their old music, they'll be exporting that extra dosh by way of transfer pricing arrangements to the jurisdiction where the music is available for free! I can almost hear EMI's Board guffawing over a Boli CG.

Fourth, exactly what is the scope of common law copyright in New York and how did it get here? What was the common use and practice of the first New Yorkers composing their great narratives in between eking out an existence and mastering the woodlands? Did they really truly have a practice of recognising rights similar to copyright as we know them today and were inherited upon the founding of the State, or has there been scope for judicial activism in the intervening period? In either case, what is the scope of the law today? Clearly it hasn't been litigated much or this case wouldn't have been brought. Will the courts simply happen to identify the rights under common law with those available under federal statute? What defenses (fair dealing?) are available for example?

Fifth, while you could argue that if common law copyright existed at and was incorporated into New York common law upon the founding of the colony/the creation of the State and you could also argue that it covered literary works, exactly how is it possible to incorporate sound recordings and other technologies into this "eternal" common law right when they didn't exist until centuries after the relevant time? Whether the common law is actually capable of changing is a question of some involved jurisprudence (on some interpretations courts simply "discover" the common law). However, if it is sufficiently extensible to cover sound recordings will courts actually take heed of the common custom and practice of citizens (only a tiny fraction of whom today have unauthorised mp3s, in the 1970s had unauthorised cassettes, and previously had unauthorised reel to reels) when determining the scope of these common law rights? Will they take heed of alt.binaries.* in determining the common custom I wonder?

Sixth, does the court's argument apply to literary works and, in particular, to computer programs? The arguments in the case appear to be heavily reliant on a line of decisions to the effect that, while first publication exhausts any possible common law property in written works, the same was not true of sound recordings (surprise, surprise, the key case in the line of precedent seems to be another one of those cases between two recording companies -- Capitol Records Inc. v Mercury Records Corp. 221 F2d 657. Capitol Records Inc. . . now where have I seen that name before?). Like sound recordings, computer programs didn't exist at the time of the relevant early copyright decisions. There would appear to be ample scope should the whim take an interventionist judiciary. Further, any wording in federal statutes relating to transitional provisions for literary works may not apply to them unless referenced with sufficiently specific detail in those transitional provisions.

Seventh, even if first publication with authority exhausts common law copyright in a literary work in New York State which would otherwise exist in perpetuity, exactly when did Shakespeare first authorise the publication of his works there? Sounds like maybe there's a massive class action claim waiting for Shakespeare's successors in title. . . .

Eighth, the lawyers for Capitol have said that "the result is that artists, their estates and others involved in recordings made before 1972 could collect royalties in the United States for their performances". Exactly who might be covered by that word "others" is a bit beyond me. Could he be referring to the record companies? Further, they have declined to indicate in what proportion the artists, their estates, and these unnamed "others" will share in those royalties. Would anyone like to hazard a guess?

Finally, how do you guys manage to innovate there? With so many overlapping rights, many of which seem to spring up out of nowhere from time to time, it sounds like a nightmare navigating through a maze of obligations. If I go ahead and restore a wonderful work that the copyright holder has abandoned, I can re-ignite the market for that work, only to be blindsided by the copyright holder once I've done the work in creating the market. Do you ever get the feeling that this regulation might, one day, although maybe not until the long distant future, give rise to oligopolies and consequent price gouging?

I guess the rest of us are simply glad that you are content to savage your own industries, and happy that you won't be able to export State common law.

What are the impacts on Open Source?

Well, the main thing is, if you're looking for some music to include in your computer programs, don't even think about mining the public domain of pre-1972 sound recordings. Apparently, that public domain does not exist and, indeed, won't exist until 2067. Unless, of course, you're in the UK (or another of those handful of jurisdictions around the world which don't recognise New York common law), in which case, go for your life! Remember though, that the suckers in New York won't be able to use your software.

This prohibition would probably include, for example, using a soundtrack from a copyright-expired movie, as the common law copyright may continue to subsist in the sound recording.

If similar arguments are available for computer programs, there may be some issues for code which has inherited an old pedigree. Will this lead to a new SCO case in 3 years' time? What of the AT&T/BSD case?

On the general issue of whether or not perpetual copyright would be a good thing or a bad thing for open source, I am by no means certain. It may turn out that copyright is the most effective means of securing a free software market, in which case, the longer the better. It seems to have done a reasonable job to date. Only time will tell.

Note: There are a couple of what-ifs in there (could it apply to computer programs, or to the sound tracks of film recordings?) in respect of which I am engaging in idle speculation and for which there may be an obvious answer on the Statute or case law books. If you have the expertise, please feel free to complete the picture.

Brendan Scott,, April 2005 Brendan is a lawyer, based in Sydney, Australia. Brendan runs a specialist practice dealing with ICT and open source related law.


Some Notes on Capitol Records, Inc. v Naxos of America Inc. - by Brendan Scott | 108 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Only in New York?
Authored by: Anonymous on Wednesday, April 13 2005 @ 12:17 PM EDT
Does this ruling apply outside of New York?

That is, I am a US citizen, but not a resident of New York. Does New York
common law apply to me? If so, why? And does New York common law apply to a
transaction between a Hong Kong company and a resident of a different state?
Again, if so, why?

If the net effect of this is that it only affects the residents of New York,
then it's still bad, but at least it's limited in its badness...


[ Reply to This | # ]

Some Notes on Capitol Records, Inc. v Naxos of America Inc. - by Brendan Scott
Authored by: Anonymous on Wednesday, April 13 2005 @ 12:24 PM EDT
someones always compalining about how their absolute right in their property has
been violated.

I'm hoping at some point these inane decisions are going to create the correct
precedents to allow the indians to reclaim ALL the lands that were taken away
from them illegally.

[ Reply to This | # ]

Is it going too far?
Authored by: Frihet on Wednesday, April 13 2005 @ 12:37 PM EDT
Is it going too far to opine that the record companies have become the enemies
of culture? Absolutely not, and you're right on target, PJ.

There are serious and urgent problems ahead in Norway and Canada. It might help
if folks would send email to each member of the Storting and Parliament,
respectively. I have done this. It took two weekends. If you're a Nordmann or
a Canadian, write your representative now. Time is running out.

Government is becoming an institution of, by, and for business. If we don't
fight, we lose.

I try to write about this at where you'll find something on both


Repeal the Digital Monopoly Conservation Act.
Write your congress folks!

[ Reply to This | # ]

  • Is it going too far? - Authored by: Anonymous on Wednesday, April 13 2005 @ 01:26 PM EDT
  • Surely - Authored by: Anonymous on Wednesday, April 13 2005 @ 01:38 PM EDT
    • Probably not - Authored by: Anonymous on Wednesday, April 13 2005 @ 02:56 PM EDT
  • Is it going too far? - Authored by: Anonymous on Wednesday, April 13 2005 @ 04:43 PM EDT
Interesting example of copyright issues, what do you all think about abandoned works?
Authored by: veatnik on Wednesday, April 13 2005 @ 12:38 PM EDT
Given situations like this, I do hate to see extensions in the length of
copyright protection. It seems that if the creator of a work felt like X years
of protection was enough to be worth making the work, then X years should stand.
This is a good example of the problem that occurs when extensions are made.

There is an issue in current copyright thought (both pro and con) that I would
like to pick at and see what all of you are thinking... Not the typical fight
which seems to be over length of protection and whether we should allow
extensions to the protection.

I would submit that there is a more important issue (recently getting some
exposure) of whether a work is still available commercially. To some extent I
think that if a work can be obtained, I do not have as much of an issue with
long terms of protection. However I am very worried that given a long term of
protection, works will become unavailable (if they are not commercially
profitable) and thus some items of value may be lost to society before they can
enter the public domain.

If a work never enters the public domain (due to loss of availability) then
society never obtains the benefit promised in return for the protection to the
author. This is as unfair to society as a whole as would be a system providing
no protection to the creator of a work.

Anyone have thoughts for a solution for abandoned works that are no longer
produced because it is not economically viable?

[ Reply to This | # ]

Some Notes on Capitol Records, Inc. v Naxos of America Inc. - by Brendan Scott
Authored by: fredex on Wednesday, April 13 2005 @ 12:47 PM EDT
How do you guys ever innovate over there?
The answer is: We pretty much don't, anymore. It's against the law.

[ Reply to This | # ]

"Common law copyright" is an oxymoron
Authored by: Anonymous on Wednesday, April 13 2005 @ 12:53 PM EDT
Surely "common law copyright" is an oxymoron. In the US, the
Constitution states that it is up to the Congress to secure for authors (for a
limited time) the exclusive right to copy. This explicitness would not be the
case for a common law right. Elsewhere, historically, copyrights were e.g.
granted by the Crown. Going further back (before the printing press), the
idea of copyright was absurd -- the way things got "published" was
for anyone who wanted a copy to make their own (or hire somebody to do so).

I certainly hope that this is appealed and that the Supreme Court properly
overturns it.

[ Reply to This | # ]

Authored by: DBLR on Wednesday, April 13 2005 @ 01:04 PM EDT
Please place corrections here for P.J.



"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is
a well-armed lamb contesting the vote."
Benjamin Franklin.

[ Reply to This | # ]

Naxos - not only in America
Authored by: Anonymous on Wednesday, April 13 2005 @ 01:05 PM EDT
Naxos UK made it into Groklaw when Laurence Lessig's latest book was under
discussion. In broadly similar circumstances - though relating to transcription
and tidying up of an original, 100s of years old manuscript, for recording Naxos
fell foul of a similar intervention.

[ Reply to This | # ]

OT-Off Topic Here.
Authored by: DBLR on Wednesday, April 13 2005 @ 01:05 PM EDT
Please use link code to make your links clickable:

For example: <a href=""> Link Text

Set the Post Mode "HTML Formatted".



"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is
a well-armed lamb contesting the vote."
Benjamin Franklin.

[ Reply to This | # ]

impact on open source
Authored by: Anonymous on Wednesday, April 13 2005 @ 01:22 PM EDT
Fortunately, all of the Unix kernel in 1972 was written in PDP-11 assembler; so
there is no "common law copyright" code that SCO mightbe able to claim
ownership of. Everything there has been rewritten since 1972.

John Macdonald

[ Reply to This | # ]

This is a wonderful ruling! Sue Disney in New York!
Authored by: Anonymous on Wednesday, April 13 2005 @ 03:29 PM EDT
The whole copyright extension mess is caused by corporations that pillage public
domain works, stamp their copyright on their variation and live on it (do anyone
seriously believes any "new" work could not be traced to public
domain?). These people _rely_ on the public domain pool (exploiting legislation
imbalances is so much easier than make honest money in a level playing ground)

Let's someone find the successors-in-interest of some of the works Disney
blatantly adapted, and sue Disney in the state of New York. Big money at stake!
Much more than in music!

We'll see how the same people who argue every decades for copyrights extention
manage to explain they should not pay the same tax to their predecessors.

I wouldn't expect such a case to succeed, but it would open the eyes of lots of

[ Reply to This | # ]

Clarification please.
Authored by: JScarry on Wednesday, April 13 2005 @ 04:45 PM EDT
This case turns on "Common law copyright", but I'm still confused
exactly what that is. Could someone distinguish between common law and
statute in this case.

[ Reply to This | # ]

Some Notes on Capitol Records, Inc. v Naxos of America Inc. - by Brendan Scott
Authored by: Anonymous on Wednesday, April 13 2005 @ 06:00 PM EDT
How many of us know musicians who dream of being signed to a major lable? I
would hazard a guess that several of us do. How many of us have been real
friends and told them how stupid a dream that is. Stupid. A harsh word but

Musicians see the way the 1% of the signed live and are willing to prostrate
themselves for the chance to live that way. Totally ignoring the 99% who end up
in debt and don't own their work or any rights to it. I'm not saying that there
are no benefits to getting signed to a major lable. Just that they are
outweighed by the downsides.

With the internet today you can have instant global distribution to millions of
people. Even the major lables can't/wont do that for you. And if you don't have
a head for business surely you can find someone in your town who does and would
be willing to help you out for a reasonable fee. There just is not that much a
major lable can do today that a motivated average joe can't.

Unfortunatly the only way to really get the point across is to stop buying what
they are pushing. And then buy from independants. It will not be easy. It will
basically mean giving up basically the last 100 Years of culture for lost due to
their unfair practices. But the sooner we start the less pain there will be. It
is already starting. Several musicians etc are already exploring internet
distribution. What we need are artists willing to produce independant shows and
movies this way. Someone out there has an idea for one of the greatest shows
that would never be produced under traditional conditions. I know I do. And I am
working slowly to that goal myself. I have dreams of what it would be like to be
ritch and famous. We all do. But I am not naieve enough to give my ideas to them
hoping they will take me along for the ride. My ideas are my own. And if they
want access it will be on my terms.

Neo Neko

[ Reply to This | # ]

Some Notes on Capitol Records, Inc. v Naxos of America Inc. - by Brendan Scott
Authored by: Anonymous on Wednesday, April 13 2005 @ 06:25 PM EDT
Unless, of course, you're in the UK (or another of those
handful of jurisdictions around the world which don't
recognise New York common law), in which case, go for your
life! Remember though, that the suckers in New York won't
be able to use your software.

The arrogance of US Courts is such that US Courts [both
state and federal] believe that any decision that a court
renders is applicable everywhere in the world including
both citizens and non citizens alike. According to US law a
foreign nation [in country 1] may sue a foreign national
[in country 2] for action that occurred in either country
1, country 2 or some other country [country 3] and that
that decision is to be upheld by all foreign governments
even when the decision is a direct violation of the laws of
the country of the first foreign national, the second
foreign national or the laws of the country in which the
action took place.

Based on that level of US court lack of judicial restrain
it is not surprising that New York state court feels that
any decision that is rendered in a New York state court is
applicable to all parties in the UK. This is of course the
central idea that Brendan Scott failed to recognize that is
to repeat that the New York State court actually believes
that their decision is fully applicable to action that
occurs in the UK irregardless of UK law on the subject.

[ Reply to This | # ]

Some Notes on Capitol Records, Inc. v Naxos of America Inc. - by Brendan Scott
Authored by: John Hasler on Wednesday, April 13 2005 @ 11:18 PM EDT
Having read the decision I must conclude that it is correct. The law is wonky,
but clear.

[ Reply to This | # ]

Gilbert and Sullivan's experience would seem to indicate the opposite
Authored by: Anonymous on Thursday, April 14 2005 @ 01:41 AM EDT

Never mind Shakespeare, why were New York publishers permitted to copy WS GIlbert's HMAS Pinafore in 1879 if NY State common law copyright recognises the priority of publication in England?

Gilbert and Sullivan travelled to New York that year to premiere their next opera, The Pirates of Penzance, in order to secure American copyright and performing rights. And just in case British 'pirates' (perhaps this pun is the origin of the 'piracy' metaphor for copyright infringement?) did the same, they ensured that the official British premiere happened the day before the American one, almost unannounced, at an obscure provincial venue (Paignton in Devon) out of the eye of the London press and public.


[ Reply to This | # ]

This is horrific stupidity
Authored by: ewe2 on Thursday, April 14 2005 @ 02:50 AM EDT
A clearer case of the rights of corporations over the rights of individuals I
have not seen. A clearer case of judicial incompetence at balancing the rights
of the public against the desires of commercial entities I have not seen.

I wonder how eager our beloved "content industries" will be to take
this as precedent. Brendan makes a good case for overturning it, is there scope
for doing this in other jurisdictions?

[ Reply to This | # ]

Some Notes on Capitol Records, Inc. v Naxos of America Inc. - by Brendan Scott
Authored by: hollowhead on Thursday, April 14 2005 @ 02:24 PM EDT
I'd like to commend Mr. Scott on a well-written read. Informative, yet humorous.

Carpe diem, baby

[ Reply to This | # ]

Often broken laws are laws which are not parallel with our conscience
Authored by: Anonymous on Thursday, April 14 2005 @ 02:42 PM EDT
Most people have a rather good feeling for what is ethical and what is not. The conscience tells us not to steal, not to murder, and some other things also forbidden by law. In effect, most people do not need the law, they would not steal or kill if the law was not there.

This makes me assume, that illegal downloading music from the internet is not viewed by the people who do it as not ethically correct. They know it is illegal, but their conscience does not tell them: "You harm someone, don't do that." Maybe it is because you do not see someone being harmed, especially if your choice is between download and not buying. You would not buy it if it costs money, but as it is gratis you go and get it. Either way, the record company does not make money. Effectively, you don't harm the record company, sadly the record company can't know this.

Additionally as the ratio of what the artist gets and what the record company gets is very biased towards the company's income, lots of artists get practically zero. This is why lots of people do not feel bad about betraying a company which is itself behaving unethical (unethical, not illegal - there a difference). This is also understandable if you imagine yourself having a medical aid kit, and you are about to put a plaster on a small wound someone has on the hand who you just saw hit some innocent pedestrian into the face. Although you most probably WILL apply the plaster you have the feeling that this guy should better suffer from his own violence.

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How Australia Deals with Common Law Copyright
Authored by: Brendan Scott on Thursday, April 14 2005 @ 10:51 PM EDT
From the Copyright Act 1968:
(thanks to Kathy Bowrey)

8 Copyright not to subsist except by virtue of this Act: Subject to section 8A,
copyright does not subsist otherwise than by virtue of this Act.

8A Prerogative rights of the Crown in the nature of copyright: (1) Subject to
subsection (2), this Act does not affect any prerogative right or privilege of
the Crown. (2) Where a right or privilege of the Crown by way of copyright
subsists in a work or published edition of a work, a person does not infringe
that right or privilege by doing, or authorizing the doing of, an act in
relation to the work or edition without the licence of the Crown if, assuming
that that right or privilege of the Crown did not subsist in the work or
edition, but copyright subsisted under this Act in the work or edition and was
owned by a person other than the Crown, the person would not infringe the
copyright of that owner in the work or edition by doing, or by authorizing the
doing of, that act without the licence of the owner. (3) Nothing in subsection
(2) shall be taken to limit the duration of the right or privilege of the Crown
by way of copyright in a work or published edition of a work.

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I'd like to find the heritage of common law copyright
Authored by: Brendan Scott on Thursday, April 14 2005 @ 10:55 PM EDT
On reading Wheaton v Peters, it seemed that there was a knock down argument
against common law copyright in most states. However, the reasoning of the
court in Capitol v Naxos seems to indicate that common law copyright subsists in
Pennsylvania even though Wheaton v Peters seemed to say it didn't.

Anyone know where to find the original cases on the internet (if anywhere)?
Anyone tracked this through?


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Its just Music People
Authored by: Anonymous on Thursday, April 14 2005 @ 11:14 PM EDT

THe decision is rather simple and based on a piece of legislative incompetence.

Copyright only exists in a work from the date of first publication.

The Copyright act did not recognise music recordings as publications or works
generally until 1972. Therefore due to the mechanism of the law copyright
protection did not begin until 1972.

It only applies to works recognised and is likely to apply to any unrecognised
works from the date that they were recognised.

As for common law copyright - the basis of the protection is spurious to say the
least. Even without regarding the constitutional arguments against state
creation of intellectual property law I note that the English common law
inherited by the United States should properly be applied and a 'perpetual'
state of copyright protection ignored. The Brits didnt use this standard on
Independence so it should nt be applied here.

In any case this does highlight the problems with prospective as opposed to
retrospective application of new laws governing existing rights. There is no
doubt that publication of many works including those subject of Naxos was long
before the 1972 amendments.

In any case it is not a judicial error. The justices were correct in thier
statements. This is a result of legislative incompetence which only the Supreme
Court will be able to overrule.

See for the full story.

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