I think that recording artists should have the right to prevent public performances of their copyrighted works, the same as composers. I just don’t think that a district court in New York can spontaneously give them that right and insist it always existed.

Last week, Public Knowledge filed an amicus brief in lawsuit between the company Flo & Eddie, which owns the rights to The Turtles’ records, and satellite radio company XM Sirius. In the brief, we argue that a New York district court wrongly assumed that Flo & Eddie had the right, under state law, to sue Sirius XM for airing the tracks without paying them.

The satellite radio company isn’t some scofflaw; in fact, satellite radio and webcasters pay more than AM/FM broadcasters do, since they’re required to pay recording artists who made their recordings after 1972. No one, though, pays recording artists to play their music if it was made before that year.

Historically, Different Works Got Different Rights

Why the cutoff? Because until 1971, there simply wasn’t a copyright in sound recordings. It’s easy for us to forget that, throughout the history of copyright law in this country (which begins at least with the Copyright Act of 1790), just because you made an original work of expression didn’t mean you got to copyright it. The 1790 Act, for example, allowed copyrights in books, maps, and charts. Composers weren’t able to copyright their musical works until 1831; dramatic works weren’t copyrightable until 1856. That’s even leaving out the lack of protection for certain types of works because the law didn’t really know what to do with newfangled technology, like piano rolls and photographs. So it shouldn’t be all that surprising that sound recordings themselves took until the 70s (the 1970s) to get copyright protection.

Up until that time, state courts had been using other means of going after people who were bootlegging records, using state causes of action like misappropriation or unjust enrichment to address the areas not covered by federal copyright law. When Congress did get around to creating copyrights for sound recordings, it set them up for any new records, but left already-made records to the protections that state courts had been giving them. Congress would get around to creating federal protections for the older works later, they assumed. I have to imagine that Congress probably had a more optimistic view of its own productivity then than it does now.

In any case, it’s not just that different kinds of works either were or weren’t protected; different kinds of works have always received different kinds of rights. When Congress decided to protect sound recordings in 1971, it only protected them from being copied, not publicly performed. That wasn’t the first time public performance rights were handled differently from reproduction rights, either: even though musical works were protected against copying in 1831, it wasn’t until 1897 that they got a public performance right. Lectures, protected from reproduction since 1909 as a separate category, didn’t get protection from unauthorized public performances until 1952. Motion pictures, protected from reproduction first as series of photos, and then later as works in themselves 1912, didn’t get a public performance right until 1976.

Limits on What Copyright Does

All of this is to say that it’s not that weird that the specialized world of pre-1972 sound recordings might have protections against reproductions, but not public performances.

Copyright law gives certain types of rightsholders certain rights, but it doesn’t give a copyright holder the right to prevent every possible use of their works. It’s not just that there are exceptions to rights, like fair use and first sale; there are also explicit limits on what we let copyright holders prohibit. For instance, no authors have the right to prevent anyone from reading their books; no movie studio can prevent anyone from watching a movie at home.

Some of these limits make eminent sense; we don’t want copyright law to prevent reading, learning, or the normal sharing of information. Other limits make less sense; political pressures and historical industry power are the reasons that, for sound recordings made today, traditional broadcasters don’t have to pay recording artists, while satellite services and webcasters do.

Yet the fact that we might want to change those limits doesn’t alter what is the case now—that the limits are there, and aren’t something a judge can will into being.

But the district court in New York thought otherwise late last year. Instead, it ruled that, since pre-1972 sound recordings have state law protections against others copying their recordings, they must have had protections against public performance as well. More than that, though, the court says that those rights were there all along, even if no one had ever seen them before. The idea is that, even if there was no precedent in state law for such a right, and no state or federal laws on the books covering it, a state “common law copyright” protection just naturally contained every kind of right that federal law does. We disagreed with that, which is why we filed our brief in support of Sirius XM in its appeal.

There’s a philosophical debate behind this, and also a practical one. On the philosophical side, it’s a question of what copyrights are for. Some say that copyrights exist for a utilitarian purpose—we give authors the monopoly power to restrict uses of their works in order to give them a valuable incentive to create those works and bring them to market. Others say that copyrights should be naturally enforced as an ethical matter—that authors have an inherent right to prevent copying of their works just like people have an inherent right to have property and not have it stolen.

The utilitarian formulation is the one we’ve adopted in US law—it’s the rationale outlined in the Constitution, which gives authors (and inventors) rights “to promote the progress of science and the useful arts.” The latter conception is more typically European, and frequently associated with ideas that the author cannot just prevent people from reproducing or republishing the work, but also from altering it or its attribution. In the US, those concepts are typically handled by other areas of the law (false advertising, rights of publicity, etc.) or by ethical norms (against plagiarism).

If copyright’s purpose is utilitarian, then we shouldn’t be granting rights that don’t incentivize creation. After all, the rights we grant are rights to restrict the exchange of information—something that costs the public. If the benefits collected by the copyright holder don’t incentivize creation, then there shouldn’t be a copyright. You can see how applying this rubric to different types of works and different types of rights can lead to different results—the incentives will differ according to the classification. A lack of formal consistency across these categories is therefore not a fundamental problem—it’s merely a matter of judging how useful the right is overall.

That doesn’t mean that a public performance right in sound recordings can’t, or shouldn’t exist, just that it doesn’t in the absence of some positive source of law. The Constitution, with its utilitarian rationale for copyright, doesn’t automatically provide one, and the statutes of the US and New York don’t either. Given the lack of history in the state common law for the right, there just isn’t one there.

This leads to the practical problems with the district court’s decision. When Congress created the specialized digital public performance right for sound recordings, it did so at the same time that it created a statutory licensing structure, so that the newer satellite and digital streaming services couldn’t be held over a barrel by holdout labels, or disfavored if a label had a sweetheart deal with one competitor over another. Creating a new right at the state level upends this, by sidestepping the simplifying structure of the statutory licenses—labels can pick and choose which digital companies they want to allow to access their catalog, or they can decide they want to encourage one kind of medium over another. If any of the major labels has a dispute with Pandora, or Sirius, or Apple or Google, they can make that company’s streaming service just that much less useful by withholding their pre-1972 catalog—something that can’t happen with newer music.

More confusion results from adding more legal jurisdictions to the mix, too. If every recording made before 1972 has a public performance right in the states, then at least 50 state laws will govern each one. It also doesn’t help that, prior to cases like this one, most services were operating under the reasonable assumption that they didn’t need permission to broadcast pre-1972 sound recordings.

It hardly makes sense that we should have a legal system that would make it harder to access works that Congress decided to give fewer rights to, but that’s what the district court decision does.

Looking to Congress

So where does that leave the rights of recording artists? If we actually want to give digital public performance rights to pre-1972 sound recording artists (to say nothing of AM/FM public performance rights for sound recordings artists in general) we’ll need to change the copyright laws in Congress.

The lack of a broad federal sound recording rights for post-1972 recordings pits the RIAA and recording artists against broadcasters—two big industries with powerful lobbies. In previous encounters, their debate on this issue has deadlocked. Other copyright and licensing disputes occur with this as part of the background; it can always be called upon as a way to bring in one side or another against a proposed compromise.

In the meantime, the state of pre-1972 sound recordings has lingered since, well, 1971, frankly. The Copyright Office issued a report a few years ago encouraging the federalization of the rights—which should result in both recording artists and those using them would have a clear and uniform set of laws to adhere to. A more recent music licensing report from the Copyright Office reiterated this call, as did the Register of Copyrights in her recent Congressional testimony.

Will Congress act? That’s largely up to the biggest industries in this particular fight. As with so many things, no one seems eager to champion a bill that addresses a narrow issue—everyone’s hoping to get another pet issue settled first. But it seems difficult to believe that Congress can continue to put off what it set aside over forty years ago. With increasing litigation in several different districts, it just may be time for this particular chapter of history to come to a close.