The CLASSICS Act is problematic.

Last month, more than 40 professors of intellectual property (Lemley, Samuelson, Tushnet, Lessig, to name a notable few) signed a letter urging Congress to reject the CLASSICS Act (pdf below).

In the most basic terms, the CLASSICS Act has the effect creating new rewards for existing copyright holders while ignoring the "promote Progress" prong of the Copyright Clause. 

Unlike traditional radio, digital streaming services pay to use recordings made after 1972. These recordings are within the purview of federal copyright law. However, federal preemption of state law does not apply to pre-1972 sound recordings. State law applies to such recordings, and will do so until 2067. As such, the question of whether online services must pay to use them has produced a great deal of litigation in several states.

Under the proposed CLASSICS Act, digital services such as Pandora and SiriusXM would have to pay for use of pre-1972 recordings in the same manner and rate as they do for post-1972 recordings. At first blush, the legislation appears to harmonize pre- and post-1972 sound recordings, and for some that means the arbitrary line drawn at February 15, 1972 vanishes.

While harmonization may be a desirable goal, the Act itself does more bad than good: 

  • Unreasonably lengthy extension: Right now, state law applies to pre-1972 recordings until 2067. However the Act has the effect of creating yet another term extension, that is, guaranteeing payment for such recordings until 2067--even though many terms of protection for musical works underlying pre-1972 sound recordings would expire long before. As the letter states, "All but most of recent pre-1972 recordings would gain more than 95 years of protection. Earlier recordings would receive far longer protection; in the most extreme case, sound recordings from 1923 would enjoy protection until 144 years after they were created, protecting works that are older than any other works protected by copyright anywhere."
     
  • The Act does not serve the purposes of copyright law: The Act simply creates new rewards for current rights-holders and does not incentivize the creation of new works, which is counter to the statutory (and constitutional) purposes of copyright law. Moreover, severing the underlying musical work from its corresponding sound recording in terms of protection demonstrates how the Act is designed to prioritize rewards over creation.
     
  • Retroactive, unnecessary protection: The Act has the effect of federalizing state rights (as well as creating new rights in many states and extending existing rights in other states well beyond what is currently provided) with respect to pre-1972 recordings, YET it also arbitrarily exempts such recordings from nearly all of the federal statutory limitations that traditionally apply to other types of work. 
     
  • The public will suffer: The burden of compliance to be shouldered by digital services will be tremendous. Any existing work that includes pre-1972 sound recordings (e.g., audio, documentaries, podcasts, etc.) could no longer be transmitted to listeners without first securing new permissions from copyright owners in each sound recording. Big players such as Spotify and Apple Music will skirt by relatively unscathed, but the odds will be stacked against non-profits and smaller digital services. Ultimately, what this means is the public will have less access to culturally valuable works.