In 1971, the State of California indicted several LP bootleggers with 140 counts of music piracy under section 653h. They eventually pled guilty to ten counts. The state law prohibited the duplication of a commercial recording for sale; compositions were protected by federal law. The Supreme Court consolidated their appeals under the name Goldstein v. California. The defendants advanced three arguments: 1) the California statute permitted a state copyright of unlimited duration in derogation of the “limited times” provision of the federal Progress Clause; 2) the state law violated the provisions of the Court’s previous Sears and Compco holdings; and 3) states could only protect unpublished writings, and under the definition of “published” in federal law, the recordings had been divested.
The Court rejected all three. The Constitution’s Progress Clause did not prohibit the states from also exercising their own copyright powers, nor did it limit those powers. Thus the “limited times” provision only applied to the federal government, and if a state wanted to make its protections perpetual, it was free to do so. During this discussion, the Court raised some points that have been ignored in the excitement over the Capitol v. Naxos case. It emphasized that “a copyright granted by a particular State has effect only within its boundaries,” and that this situation
is no different from that which arises in regard to other state monopolies such as a state lottery, or a food concession in a limited enclosure like a state park; in each case citizens may escape the effect of one State’s monopoly by making purchases in another area or another State.
However, it admitted that conflicts “would arise, for example, if each State exercised a sovereign power to levy imposes and tariffs.” The fact that Capitol Records, a corporate resident of New York, was able to use the Capitol v. Naxos decision, ostensibly effective only within that state, to force Naxos, whose American division is a corporate resident of Nashville, to curtail much of its activities across the United States, leads one to wonder if it did result in just this kind of state-vs-state trade barrier-ism.
But most of the opinion dealt with the Sears-Compco issue, which the Court turned into a disquisition on the thorny question of whether sound recordings are “writings,” and what their status was under the 1909 Copyright Act. The Court concluded: 1) “writings” as defined in section 4 of the Copyright Act, did not include everything eligible for copyright under the Progress Clause; 2) there were things that are “writings” under the Constitution, but which Congress chose not to include within federal copyright law; 3) sound recordings were one of these things; 4) “publication” was a term of art applying only to situations arising under the federal Copyright Act; thus, a state may use a different definition. The Court never addressed whether section 653h fell within the “palming off” provisions of Sears and Compco, or what standards a state had to meet to have a valid anti-music-piracy statute.
It was a close decision, 5-4. There were two dissents. One was grounded in Judge Hand’s dissent in Capitol Records v. Mercury Records; the other in a text of the Copyright Act itself. Both said essentially the same thing. The Copyright Act covered, in a blanket manner, everything that was a “writing,” that is, everything Constitutionally capable of copyright. Section 5 of the Act then listed those things that were intended for protection through registration. Sound recordings weren’t there. Thus, sound recordings were covered by copyright law, but “coverage” did not include “protection.” Because they were covered by federal law, although without protection, state law was preempted. That being so, the dissent implied that the majority should have taken the next step of determining if section 653h met the “palming off” criteria in Sears and Compco, but it didn’t.
Both sides noted that their opinions were somewhat transitional, because by that time, the law had changed.
To be continued…