Recently, in UMG Recordings v. Escape Media Group, a New York state court held that the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”) may provide the operator of the website protection against state law copyright claims based on pre-1972 sound recordings.

The DMCA provides a “safe harbor” against legal liability for certain online service providers that store content that infringes copyrights. To qualify for the safe harbor, an online service provider must not know of or directly financially benefit from the infringing activity and must facilitate the “notice and takedown” process by which rightsholders may ask the service provider to remove infringing content.

While the federal Copyright Act preempts most state copyright laws, it preserves state copyright protections for sound recordings created prior to February 15, 1972. In UMG Recordings, the plaintiff argued that the term “copyright” in the DMCA’s safe harbor provisions refers only to federal copyright and therefore does not protect the defendant against state law claims based on pre-1972 sound recordings. In rejecting this argument, Judge Barbara Kapnick of the New York Supreme Court (a state trial-level court) joined with the decision of Judge William Pauley III of the federal Southern District of New York, the only other court to consider the issue previously.