Part 33

Just where did this alleged infringement take place? Like California’s statute 653h, New York has an anti-music piracy law, located in Article 275 (275.00-.45) of the penal code. At the time, Section 275.05 defined the crime of “manufacture of unauthorized recording in the second degree” as applying to one who:

1.   knowingly, and without the consent of the owner, transfers or causes to be transferred any sound recording, with the intent to rent or sell, or cause to be rented or sold for profit, such article to which such sound recording was transferred, or

2.   transports within this state, for commercial advantage or private financial gain, a recording, knowing that the sounds have been reproduced or transferred without the consent of the owner; provided however, that this section hall only apply to sound recordings initially fixed prior to February 15, 1972.

“Owner” was defined as “the person who owns, or has the exclusive license in the United States to distribute to the public copies of the sounds fixed in a master phonograph record [or other format].”

The statute only assessed criminal penalties; it did not create a private right of action to recover damages. But in its brief before the New York State Court of Appeals, Capitol Records asserted that it was entitled to civil relief under “common law copyright infringement.” To define what this was, it pointed to the above criminal statute and two civil cases, Metropolitan Opera v. Wagner-Nichols Music (1950) and Capitol Records v. Greatest Records (1964). Metropolitan Opera was the case where the opera company sued over recordings lifted from the Met’s Saturday afternoon radio broadcasts; Capitol v. Greatest involved the pirated Beatles singles and album excerpts.

The problem is that all three basically say the same thing: copyright infringement is the unauthorized manufacture or distribution of protected sound recordings within the state of New York. But this element was never established. Keep in mind that the CDs were manufactured in Nashville. Instead, Capitol’s lawyers implied, but never forthrightly stated, that the copying and distribution of the disputed recordings anywhere in the United States constituted common-law copyright infringement. That flatly contradicts what Chief Justice Berger said in the Goldstein Supreme Court case: “a copyright granted by a particular State has effect only within its boundaries . . .individuals who wish to purchase a copy of a work protected in their state will be able to buy unauthorized copies in other States where no protection exists.”

So not only am I left scratching my head about what the proper venue for this case should have been, I have reservations about whether the federal district court for the southern district of New York really had jurisdiction to hear it.

The parties submitted their pleadings, and as is typical in such litigation, Naxos tendered a motion to dismiss and Capital replied with a motion to winnow out some of Naxos’s less plausible affirmative defenses. Judge Sweet, on his own, converted Naxos’s motion to a full-blown motion for summary judgment. This was the equivalent of him saying that “I already have a sufficient factual record to fully decide the issues in the case.” This is polite legalese for “I’ve already seen enough to convince me that Capitol’s case is a hopeless dog.”

The core of Judge Sweet’s argument was simple. The original recordings were British. The last United Kingdom copyright had expired in 1986. In fact, EMI had told Richard Warren, Curator of Yale’s Historical Sound Recordings Collection in a letter that it no longer held an enforceable UK copyright to recordings made before 1957. Naxos never attempted to “palm off” the recordings as anything other than what they were. Thus, no tortuous activity occurred. Summary judgment in favor of Naxos. Case over.

To be continued…