Monday, August 19, 2013

Jazzcast Summer Series: Episode #6 with Gurdonark

Cascade Livery, Feed and Stable, Montrose, Colorado, circa 1900

This is not legal advice. Leave audio feedback at (512) 686-6329.

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This week on the Jazzcast we have something a little bit different. It's a joint Lawcast/Jazzcast show! Listen to some sweet jazz selections from Gurdonark and me and maybe learn something along the way.

If you want to hear more from Robert, check out The Jazzcast After Party or you can check out when Tom and I had him on the main Music Manumit show. Thanks, as always on the Jazzcast, to Ryno for twiddling the knobs!

More show notes below the fold.

The reason it took so long to get this out is that I had to go back and put in some of the tracks because one of the channels dropped out late in the show. I didn't go back and fix the audio when Robert and I were talking because I thought it would take too long, but I didn't think it was fair to the musicians for you not to hear both of their channels, in case they had anything recorded in stereo.

I regret not getting this out sooner, because I think this might be the format of the future. We'll see if I am even able to do the Lawcast next summer. Brian and I discussed a bit about the future of the Lawcast on the last episode, but I go into a bit more detail in the most recent article.

Introduce Robert

Eternal Jazz Project

Song: Meander
Album: Gratis Jazz

Swedish group
cool jazz inspired
electronica and jazz

Magnatune member “since the beginning”

Janne Nummela
Song: "Icthys I"

Imperial Tiger Orchestra

Janne Nummela
Song: "Mom's Song II"
Album: Kosmoskalevala

Contract law and unconscionability.
Arbitration vs. class action
“almost impossible to meet standard“

Class actions are not a panacea?

Talk about the first jazz track.
1st Million Selling Jazz record!

Dixieland Jass Band
"Livery Stable Blues"

So, we’re both sorta right!
Doug pics two as well!

  1. "Grigioscuro" by Oprachina (jazz) - CC-BY-NC-SA - Website
  2. "African Skies" by Joel Holmes (Jazz) - CC-BY-SA - Website

Here's a followup email Robert sent me
Hi Doug:

Thanks for having me on the jazzcast. I appreciate it.

I woke up this morning eager to sort out all my confusions on the pre-1972 issues.

Here is what I learned:

1. as you discussed on the podcast, pre-1972 federal law did not protect sound recordings. The 1972 Act began that protection as to recordings from mid-February 1972. The 1976 act continued and incorporated the protection. Though the 1976 act provided for pre-emption of state law in some areas as to published works, state law is not pre-empted as to pre 1972 sound recordings until 2067.

2. state copyright law still applies to pre-1972 acts. Though the Copyright Office recommended passage of a savings statute,
I did not locate that one has passed, and believe I erred when I inferred that from a quick reading of the Copyright Office materials.

3. The field of state law copyright protection heated up when the New York state Court of Appeals held that the DMCA safe harbor does not apply to state copyright claims in pre-1972 matters, in a suit denying that key affirmative defense to 

So it looks like I muddied up the podcast because 

a. then and now, it looks like  federal copyright protection in pre-Feb-1972 sound recordings is limited to the elements (lyrics, music, etc.) and not the recording itself and that state law copyright applies and
b. though the Copyright Office recommended a fix, no fix yet applies, and
c. state law in most states does provide (patchwork) protection for these works and
d. the DMCA's protection for broadcasters may not apply to infringement of these works under state law

Sorry to get it wrong on the show!

best, Bob