Mitch Bailey


With the passage of the 1976 Copyright Act, sound recordings fixed prior to February 15, 1972 remained under the protection of the state copyright laws where the works were registered. Some incredible culturally significant songs were fixed before February 15, 1972, including songs from “The Beatles, The Supremes, Elvis Presley, Aretha Franklin, Barbara Streisand, and Marvin Gaye.” To date, state law protects the owner’s rights without interference from federal law, including the Digital Millennium Copyright Act (“DMCA”).

Given its location, the Second Circuit significantly influenced the development of intellectual property law in the United States, especially copyright law. Many businesses where intellectual property rights are “key assets, or at the heart of an endeavor,” are concentrated in the greater New York City metropolitan area. Implementing a reasonable application of the DMCA safe harbor provision is thus important for copyright law, but more specifically, the music industry in New York City and other metropolitans in the United States.

This comment focuses on the Second Circuit’s interpretation of the Copyright Act of 1976. Section II offers background for the analysis that follows. Section III focuses on whether “red flag” knowledge must pertain to the particular work being sued over in the suit and whether a service provider gains “red flag” knowledge just by looking at infringing work. Section IV examines the intra-state split between the New York Appellate court, First Department, and the Court of Appeals for the Second Circuit on the issue of whether the DMCA safe harbor is applicable to sound recordings fixed before February 15, 1972. Section V discusses the balance needed between the obligations of Internet service providers and copyright holders. In the conclusion section, I look at favorable positions in answering these issues regarding the DMCA safe harbor provisions. Ultimately, I conclude that this issue warrants attention from the Supreme Court.