• by Wendy Davis  @wendyndavis, December 16, 2016

Capitol Records is seeking to take its seven-year copyright battle with Vimeo over user-uploaded clips to the U.S. Supreme Court.

The dispute centers on uploads that incorporate music recorded before 1972. Capitol argues that different legal standards apply to those tracks -- including records by the Beach Boys, The Beatles, and Nat King Cole -- than to music recorded in 1972 or later. Specifically, Capitol contends that the Digital Millennium Copyright Act's "safe harbor" protections for Web platforms don't apply to music recorded before 1972. The DMCA's safe harbors broadly protect Web sites from infringement based on user uploads, provided the sites remove the material at the copyright owner's request.

Capitol's argument turns on language in the Copyright Act stating that the DMCA doesn't “annul” or “limit” copyright protections that existed in individual states for music recorded before 1972.

"Rights in pre-1972 sound recordings, and remedies for violations of those rights, are matters for the States to regulate and control," Capitol argues this week in a petition asking the Supreme Court to hear the case.

Earlier this year, the 2nd Circuit Court of Appeals ruled against Capitol on that point. The appellate judges said that Capitol's interpretation of the law "would defeat the very purpose Congress sought to achieve."

"Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws," the appellate judges wrote.

Vimeo and digital rights advocates had urged the appellate court to reach that conclusion. They said Congress passed the safe harbor provisions to enable companies to allow users to post material dynamically. If the safe harbors don't apply across the board, companies would have to vet all clips in advance, to make sure that they don't include pre-1972 recordings, Vimeo and its supporters said.

Capitol, which first sued Vimeo for copyright infringement in 2009, argues in its petition that other courts, including an appellate court in New York, arrived at the opposite result.

In 2013, the First Department of New York's Appellate Division ruled that Web sites aren't protected from copyright liability when users upload music recorded prior to 1972. The state judges in that case wrote: “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."

Capitol says the Supreme Court should hear the appeal in order to resolve the conflict between the courts. "Diametrically opposing legal rules now apply in state and federal courts within New York State," the company writes. "This split makes it impossible for holders of rights in pre-1972 sound recordings and internet service providers alike to know what legal rules govern their conduct."