EFF yesterday filed comments in response to the Copyright Office’s recent Notice of Inquiry regarding the “desirability and means of bringing sound recordings fixed before February 15, 1972, under Federal jurisdiction.”

Pre-1972 sound recordings are the vestigial tail of copyright law, a subset of works that are carved out of the federal Copyright Act and still receive protection under state law. The environment of uncertainty created by this carve-out has undermined the basic goals of copyright: to encourage the growth of a vibrant cultural commons. The tangle of fifty potentially inconsistent protection schemes is virtually impossible to reconcile; also, state copyright laws are largely undeveloped when it comes to exceptions and limitations such as fair use and the DMCA safe harbors that we count on under federal law. Even though these principles might prevail in state courts, the unpredictability is enough to chill preservation, distribution and creative re-use of these sound recordings. For example, libraries, archives, educational institutions and others have been discouraged from preserving and providing digital access to this group of works.

EFF has recommended that pre-1972 sound recordings be brought under federal jurisdiction, with several important caveats:

(1) Under federal jurisdiction, an infringing use of a pre-1972 sound recording would be subject to statutory damages. As we’ve frequently stated, statutory damages themselves have a dangerous chilling effect on expression. Therefore, we would eliminate or at least reduce the availability of statutory damages for pre-1972 sound recordings.

(2) People and institutions that use pre-1972 sound recordings in reliance on an aspect of state copyright protection that isn’t available under federal law should be given notice and opportunity to protect themselves. And, under certain circumstances, they should also be accorded special dispensations for continued use.

(3) In order to augment First Amendment interests and incentives for preservation of pre-1972 sound recordings, this corpus of works should have a shortened term of protection.

Our full comments are available here.