• by Wendy Davis  @wendyndavis, April 23, 2013

In a blow to Grooveshark, a New York appellate court ruled on Tuesday that Web sites aren't immune from liability when users upload music recorded prior to 1972.

The appellate court ruled that the Digital Millennium Copyright Act's safe harbor provisions don't apply to pre-1972 sound recordings. Those safe harbors say that Web services providers aren't liable for users' infringement, as long as the online companies remove pirated material upon the content owner's request.

The 17-page decision stems from a lawsuit filed by Universal Music Group against the online music services company Grooveshark. Universal argued that Grooveshark infringed copyright by hosting user-uploaded music files owned by Universal. Grooveshark argued that it was entitled to rely on the DMCA's safe harbor provisions for those files.

Universal countered that the safe harbors didn't apply to pre-1972 sound recordings. A state trial court judge ruled against Universal on that point.

The music label then appealed to the Appellate Division, First Department, which came to the opposite conclusion. “It is not unreasonable, based on the statutory language and the context in which the DMCA was enacted, to [conclude] ...that Congress intended for the DMCA only to apply to post-1972 works,” the judges wrote.

The appellate court based its ruling on a portion of the Copyright Act that says the DMCA doesn't “annul” or “limit” common law copyright protections for pre-1972 sound recordings.

The appeals court reasoned that allowing Grooveshark to assert the safe harbors for pre-1972 songs would limit Universal's common law rights. “Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark,” the court wrote.

The judges discounted Grooveshark's contention that Congress didn't intend to require Web services to police sites for infringement by users. “We reject defendant’s argument that the very purpose of the DMCA will be thwarted if it is deemed not to apply to the pre-1972 recordings,” the court wrote.

Some federal courts have ruled the other way and held that Web services companies are entitled to rely on the DMCA for pre-1972 songs. Grooveshark potentially can appeal the ruling to the state's highest court, the Court of Appeals.