April 24, 2013

A team of Jenner & Block Content Media & Entertainment lawyers led by Partner Andrew H. Bart won an appeal from the Appellate Division of the New York State Supreme Court dismissing the affirmative defense asserted by Escape Media Group, Inc. that the Digital Millennium Copyright Act (DMCA) bars UMG’s claims of common law copyright infringement. 

UMG sued Escape in New York Supreme Court, alleging that Escape’s Grooveshark website had committed massive infringement of UMG’s common law copyrights in its pre-1972 sound recordings.  Escape interposed an affirmative defense that the “safe harbor” of Section 512 of the DMCA barred such a claim.  UMG moved to dismiss the DMCA defense, arguing that Section 301 of the Copyright Act expressly prohibits any limitation of state law protections of pre-1972 sound recordings by federal copyright law.  In a decision with significant implications for the recorded music industry, a five-judge panel of the First Department of New York’s Appellate Division unanimously agreed, noting that the plain language of both the DMCA and of Section 301(c) of the Copyright Act made clear that Congress did not intend to extend the DMCA to limit state law rights.

The panel also agreed that the DMCA’s references to “copyright” and “copyright infringers” did not include state or common-law rights.  The team consisted of Partner Gianni P. Servodidio and Associates Lindsay W. Bowen and Alison I. Stein.  The April 22 ruling was covered by media outlets including the AmLaw Litigation Daily and Law360.