[Un]happy Together: Why the Supremacy Clause Preempts State Law Digital Performance Rights in Radio-Like Streaming of Pre-1972 Sound Recordings

Lovers of the music of Frank Sinatra, Elvis Presley, Etta James, and hundreds of other recording artists whose records were made before February 15, 1972, may soon have a hard time hearing these great artists on any satellite or Internet radio service. Recently, two federal district courts have found that state laws were violated when satellite radio broadcaster Sirius XM Radio included pre-1972 sound recordings in its broadcasts without the owners’ permission, but these courts did not consider-–and the parties did not argue-–how the Supremacy Clause applies to those state law claims. This article argues that state laws purporting to grant digital performance rights to pre-1972 sound recordings are necessarily preempted by the Supremacy Clause of the United States Constitution. This article contends that enforcement of those state laws would create a serious obstacle to “the accomplishment and execution of the full purposes and objectives of Congress” in enacting the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”). The DPRA reflects Congress’ careful balancing of interests and recognition of the need for an easily administrable system of licensing, which Congress established through a complex and comprehensive compulsory licensing system. The Supremacy Clause thus preempts all state laws purporting to require licenses for digital performance rights or payment of royalties for the use of such rights by Internet or satellite radio stations beyond what is expressly provided for in the compulsory licensing system established by the DPRA, because permitting countless owners of individual pre-1972 sound recordings to assert claims for royalties and other damages outside of the compulsory licensing system would frustrate Congress’ goals in establishing that system. Part I of this article provides a brief overview of the federal rights at issue and the (very) brief history of performance rights in sound recordings, noting the absence of any express state law recognition of a performance right in sound recordings throughout most of the 20th century (other than short-lived decisions in two states over seventy-five years ago that focused on notices stamped on records purporting to prohibit a purchaser’s use of sound recordings on radio rather than a true performance right). It is only in very recent cases that courts in New York and California have recognized state law performance rights. However, they did so without considering Supremacy Clause preemption or how any state law performance rights might conflict with the federal statutory compulsory license regime established by the DPRA. Part II of the article explains the relevant legislative history and provisions of the DPRA governing the comprehensive licensing system. That statutory license and rules governing it were established to provide an efficient mechanism for digital Internet and satellite radio services to operate in compliance with their legal obligations. In Part III, the article explains Supremacy Clause doctrine and distinguishes the Supreme Court’s opinion in Goldstein v. California, which rejected a Supremacy Clause challenge to a state record piracy law in 1973. It demonstrates why neither the Court’s decision in Goldstein nor the language of the Copyright Act’s express preemption clause, which exempts state laws governing pre-1972 sound recordings from statutory preemption, precludes conflict preemption under the Supremacy Clause in the context of digital radio services that are subject to the federal compulsory license. Part IV of the article acknowledges that preemption of state law protection for digital performances of pre-1972 sound recordings raises equitable concerns, as it leaves some of this nation’s most treasured musical artists uncompensated for use of their works by Internet and satellite streaming services while the authors of more current works are compensated. However, given the delicate balancing that has gone into Congress’ recognition of a limited digital performance right and creation of a compulsory statutory licensing system, any remedy for the inequity to owners of pre-1972 sound recordings must be left to Congress. Allowing individual courts in individual states to craft a patchwork of inconsistent remedies would disrupt the balance struck by Congress and interfere with the functioning of the compulsory license system for digital sound recording performances. This is a result that the Supremacy Clause does not permit

The Next Great Copyright Act and the Future of Radio, 14 J. Marshall Rev. Intell. Prop. L. 378 (2015)

With the advancement of digital broadcasting technologies, the lack of a revision to copyright law has created a creative and distribution bottleneck for artists by companies. The current range for compulsory licensing agreements does not protect the interests of artists through modern digital transmission tools, and leaves them fending for themselves if they wish to have access to new digital platforms. Moreover organizations, such as the Recording Industry Association of America, are in greater positions of power when applying existing copyright laws and definitions to new technologies that innovators never intended to be analogous to pre-existing technologies to begin with. After extensive studies, Director Maria Pallante of the U.S. Copyright Office has given her recommendations for change, but it may be a while before copyright law revisions may be enacted. This paper will highlight the background of copyright and digital broadcasting laws and review Director’s Pallante’s vision as it pertains to the digital audio broadcasting landscape now and in the future

Beyond Broadcasting: The Constitutionality of Indecency Regulation on Cable and Direct Broadcast Satellite Services

This paper argues that if the federal government is serious about its stated goals of protecting children and the sanctity of the home, then the Federal Communications Commission should expand indecency regulations to cable and satellite services. The current enforcement system – fining the handful of free broadcasters hundreds of thousands of dollars for each instance of indecency they air, while completely ignoring the much more extreme indecency commonplace on cable and satellite – is arbitrary and nonsensical. After discussing the relevant laws and precedent, the paper analyzes the regulatory history of broadcast, cable and satellite over the past few decades, paying particular attention to a pair of oft-overlooked FCC orders from the late 1980’s – orders that would point the direction of the FCC for years to come and, if carried out to their logical ends, would lead to conclusions in diametric opposition to each other and to the government’s supposedly compelling interests. The paper then examines the FCC’s current approach to indecency regulation – pausing, at times, to ogle some colorful examples – and ultimately questions whether the FCC’s current policies are appropriate

A Decent Proposal: The Constitutionality Of Indecency Regulation On Cable And Direct Broadcast Satellite Services

Little Timmy’s parents both work late, and he often finds himself sitting alone in front of the television after school. He doesn’t know the difference between “broadcast,” “cable,” or “direct broadcast satellite,” but he does know how to work the remote control. One day, as he is clicking through the channels – 2, 4, 7, 93, 128, they’re all the same to him – he comes across a provocative scene. What are those two people doing? he wonders with wide eyes. And where are most of their clothes? At that moment, Timmy’s father walks in and is shocked by the smut that runs during daytime hours on the basic tier of his satellite service. Outraged, the man files a complaint with the Federal Communications Commission (FCC). Yet because this is a subscription service, the FCC does nothing. It matters not that satellite television is increasingly pervasive, nor that once installed it is easily accessible to children

Spartan Daily, October 19, 2004

Volume 123, Issue 35https://scholarworks.sjsu.edu/spartandaily/10039/thumbnail.jp

The Sound Recording Performance Rights at a Crossroads: Will Market Rates Prevail?

Starting in the 1990s, Federal policy has moved in the direction of a market-oriented approach towards sound recording rights, beginning with Congress’ decision to create a sound recording performance copyright in 1995. In 1998, Congress provided that most statutory royalty rates, including the rates paid by webcasters like Pandora Radio, would be set using a market-based “willing buyer, willing seller” (“WBWS”) standard. Since then, the WBWS standard has been applied in several rate setting proceedings, but complaints from webcasters that the rates were “too high” have led to Congressional intervention and, ultimately, to adoption of rates below market levels. Now, as a new rate setting cycle is about to get underway, webcasters have begun lobbying Congress to replace the WBWS standard with a new version of the so-called 801(b) standard, which promises copyright users a right of “non-disruption.” Adoption of the 801(b) standard – and the other changes favored by the webcasters – would result in rates below economically efficient levels, thereby distorting markets, slowing innovation and harming consumers. This paper examines the market for sound recording performance rights, concluding that Congress should resist webcasters’ pleas for regulatory favoritism and instead continue moving towards a market-oriented approach, starting with extending the sound performance right to terrestrial radio

Issues On Media and Entertainment

An account of some of the major issues faced by media and entertainment companies at the beginning of the 21st century, and their need to balance talent and creativity, business goals and social responsibility

The three legged stool of music value : hertzian siriusxm spotify

Pricing copyrighted works or assets has always been a difficult task given the information good character of such works. Doing it in the digital era is even more challenging. This paper proposes an approach to infer the respective competitive market value of copyrights in music from choices made by operators of Hertzian radio, satellite radio (SiriusXM), and interactive music streaming services (Spotify). Although the inferred music values are rather similar, they need not be equal or even close as business models and cost structures differ significantly between those music delivery technologies. Nevertheless the results suggest that rightsholders are significantly shortchanged and poorly served by the current copyright pricing framework