New York judge Barbara R. Kapnick, J.S.C, rejected Universal Music (UMG)’s argument, that the DMCA does not apply to pre-1972 songs, in their case against Escape Media, Grooveshark’s parent group.

Grooveshark is an online music service that allows users to either stream or upload content.  In January 2010, UMG filed a copyright infringement case against Grooveshark, stating that the service maintained illegal copies of UMG’s pre-1972 catalog.  Grooveshark argues that they follow the Digital Millennium Copyright Act takedown procedures regarding their content.  UMG then argued that pre-1972 recordings were not covered by the DMCA so the safe harbor protections of the act cannot be used by Grooveshark to protect itself from the lawsuit.

“An internet service provider which seeks to benefit from the safe harbor provisions of the DMCA is required, as a condition of receiving such protection, ‘expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.’” Kapnick said in her statement.

“Certainly the thrust of the DMCA is to relieve internet service providers of the initial need to ascertain the copyright status of the sound recordings that they make available, to place the burden of asserting copyright ownership on the owners of such copyrights, and to require the internet service providers to “take down” infringing material, upon receipt of a valid notice of infringement. There is no textual, or other reason, to think that Congress intended to limit that distribution of responsibilities to only post-1972 recordings.

“Moreover, the phrase “copyright owners,”…. is applicable to the owner of a common law copyright, no less than to the owner of a copyright under the Copyright Act….”

End result, Judge Kapnick stated that the safe harbor provisions of the DMCA applies to pre-1972 recordings, thus nullifying UMG’s argument.

“This Court is not attempting to extend the Copyright Act to pre-1972 Recordings, but, nonetheless, does find, based on the relevant language of the statutes and the analysis discuss above, that the safe harbor provision codified by section 512(c)(1) of the DMCA is applicable to Pre-1972 Recordings.”

UMG’s argument was a lost cost from the start since we already saw how that same argument failed for EMI when they sued MP3Tunes.

But this doesn’t mean that the case is over, they still have a long way go.  One cannot deny that this is a huge win for Grooveshark/Escape as UMG needs to think of other possible arguments to make their case against Grooveshark stand in court.

On a positive note for UMG, Escape’s antitrust counterclaim was dismissed as well as their argument to use Section 230 safe harbors which is about intellectual property.