Hastings Communications and Entertainment Law Journal


P. Dylan Jensen


Since the rapid expansion of the Internet in the 1990s and through the 2000s, Internet entrepreneurs and technology companies continue to discover new ways to offer music online for free. A large portion of the music offered by these services was created prior to 1972, the year the Sound Recordings Act of 1971 established as the cut-off for federal copyright protection. These pre-1972 sound recordings are covered by a patchwork of state and common law, which varies greatly from state to state. Though some music services have shielded themselves with the safe harbor provision offered to Online Service Providers ("OSPs") in the Digital Millennium Copyright Act ("DMCA"), many record companies and copyright holders are still pursuing lawsuits for the improper use of pre-1972 sound recordings. This line of cases asks whether the safe harbor provisions of the DMCA limit the liability of OSPs that offer pre-1972 sound recordings without the permission of the copyright holder. Meanwhile, record companies and copyright holders have also brought copyright infringement claims under various state and common laws, forcing federal and state courts to grapple with questions regarding royalties owed by digital broadcasting and streaming services for the use of pre-1972 sound recordings. This note seeks to address the discrepancies between state and federal copyright protection for pre-1972 sound recordings, ultimately urging for a uniform federal copyright scheme, so as to provide clarity for copyright holders and OSPs, as well as to provide adequate protection for classic musical compositions.