Rights in Copies vs. Copyright

Prince’s entanglement with Radiohead, YouTube, and a video bootlegger leads to much debate over just what’s in copyright law and a YouTube nightmare scenario.

By Ethan Ackerman

Copyright bloggers were privileged to a few laughs recently when Prince’s music label, NRG, requested a DMCA take-down of a bootleg YouTube video of his live performance of Radiohead’s hit song, Creep. NRG was asserting rights over a song it didn’t write, and a video it didn’t make. At first blush, unless he had secured a performance license, Prince may have been the only person infringing copyright laws. Bloggers snickered at the irony, and the EFF even helpfully highlighted the lack of checks in the DMCA process that allowed this to happen.

The snickers quickly turned to head-scratching the more bloggers thought about it. A post by Sam Bayard, at the excellent Harvard-based Citizen’s Media Law Project blog, exemplified these difficulties and second thoughts. Sam Baynard pointed out that another provision of Title 17, the anti-bootlegging statutes, might apply. Eric Goldman pointed out on the same post that maybe NRG could have made a recording itself that was being copied – and so the Copyright Act would apply.

The anti-bootlegging statute in Title 17, 17 USC 1101, squarely addresses unauthorized recordings of live musical performances. This provision was included in the 1990s to comply with trade treaty obligations (Article 14 of TRIPS.) As Sam points out however, it’s not immediately clear that a DMCA take-down notice is appropriate for an alleged sec. 1101 violation. After all, the DMCA is for “for infringement of copyright.”

What exactly is “infringement of copyright” for DMCA purposes? While it’s clearly not appropriate to use the DMCA notice-and-take-down provisions for things like “infringement of trademark” or “infringement of publicity rights,” is a section 1101 anti-bootlegging violation an “infringement of copyright?”

No, it’s not. While the definitions section has no entry, and no other portion of the Copyright Act says exactly what is “an infringement of copyright,” 17 USC 501 provides a helpful starting point in noting who is an infringer – “anyone who violates any of the exclusive rights of the copyright owner as provided by section 106…”

But the anti-bootlegging rights aren’t in Section 106 of the Copyright Act – they’re not even in the Copyright Act at all. At best, section 1101’s anti-bootlegging rights are in the same title (Title 17) as the Copyright Act. They weren’t added to the Copyright Act, but were listed after it, much like the semiconductor chip mask works and boat hull protection acts. This distinction between “Acts” and “Titles” of US Code is often missed by attorneys (and judges) who haven’t worked extensively with legislation, but it matters. To see just how much this distinction matters, read a post by former professor (and former Legislative Counsel) William Patry, to whom it matters a lot.

As Professor Patry detailed, the anti-bootlegging statute was enacted outside the Copyright Act, without limitations that the Copyrights Clause would require, and covering some subject matter that wouldn’t be subject to the Copyright Act at all. While some might argue over whether the anti-bootlegging statutes are themselves unconstitutional, they clearly aren’t part of the Copyright Act, and clearly aren’t addressed by the DMCA.

If there’s clearly an applicable law (17 USC 1101), and a clearly unauthorized recording, who cares where definitions are, which Title’s in which Act and vice versa?

While everyone should care about laws being used correctly, in this case YouTube likely cares – a lot. Remedies for a Section 1101 violation are literally identical to those for a copyright violation – injunctions, damages, impoundment, fees, etc. Additionally, the scope of any secondary liability for a section 1101 violation is unclear – there are no mounds of case law on secondary liability like there are in copyright infringement cases. Piling things on even more for YouTube, while the DMCA notice-and-take-down process doesn’t apply, neither does its handy, litigation-preventing safe-harbor.