During the holidays, we did not get a chance to mention the draft legislation circulated by Senator Thom Tillis (R-NC) proposing changes in the Copyright Act, including the provisions of the Digital Millennium Copyright Act that created Section 512 of the Act – the safe harbor for user-generated content.  The legislation also proposes other changes in the law, including changing the structure of the Copyright Office by making it an Executive Branch agency with substantive rulemaking authority, as part of the Commerce Department.  The legislation (a full copy is available here and a summary can be found here) was not formally introduced in the waning days of the last Congress.  Instead, Senator Tillis released it for public comment with the intent that the draft would be refined based on those comments before being formally introduced for legislative consideration.  The Senator is seeking comments by March 5, 2021 from all interested parties to determine how the proposals would affect their interests.  Press releases from his office indicate that he is seeking input from a broad array of interests, from the creative community to the tech companies that use copyrighted content to consumers who may find that the platforms they use might police content differently if there are changes in the law.

Reform of the DMCA safe harbor provisions has long been sought by copyright holders who feel that the insulation from liability afforded to tech companies who host content created by others has led to widespread infringement of copyrighted materials.  We wrote at length about these issues in 2016 when the Copyright Office itself reviewed questions about user-generated content (see, for instance, our articles here and here).  In many ways, the issues with Section 512 are similar to those about Section 230 of the Communications Decency Act – the extent to which big tech companies hosting user-generated content should be liable for that content and should take efforts to police content on their platforms.  Section 230 provides insulation from civil liability other than that which arises under the intellectual property laws (so it protects online hosting companies from liability for matters including defamation or invasion of privacy – see our post here), while Section 512 provides insulation from liability for intellectual property infringement.  However, the Section 512 procedures for obtaining insulation from liability are different from, and in many cases are more stringent than, those under Section 230.
Continue Reading Proposal for Reform of Copyright Act Released for Public Comment – Including Changes for the Safe Harbor for User-Generated Content, the Status of the Copyright Office, and Orphan Works

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • President Joe Biden named Jessica Rosenworcel as Acting Chair of the FCC, where she will set the agenda for the

In 2019, the Antitrust Division of the US Department of Justice began a review of the court-administered antitrust consent decrees that have bound ASCAP and BMI since the 1940s.  We wrote about the issues in their review here.  The formal review of these decrees began as part of the DOJ’s broader review of its antitrust consent decrees covering many different industries.  The DOJ received almost a thousand comments on the questions that it asked about the ASCAP and BMI decrees.  It also held public roundtables as well as private discussions with interested parties during its review.  Last week, Makan Delrahim, the outgoing head of the Antitrust Division, presented remarks at a Vanderbilt Law School virtual event where he said that the review would be ending without any proposals for reform.  While the statement notes some of the reforms that were sought by the music industry, it also notes that music users around the country rely on the systems established under the decrees and judge them to be working well.  Mr. Delrahim’s statement says that because of the complexity of the issues and the interruptions caused by the pandemic, no reforms would be offered at this time, but it urged the DOJ to continue to review these decrees on a regular basis – at least once every five years.

This action is significant for broadcasters and other music users as it leaves in place these consent decrees that are the basis on which so many businesses use music in their day-to-day operations.  Given the volume of music they have under license, most businesses do not have an alternative to using the blanket licenses offered by these organizations.  The only alternative would be to license the music themselves which, due to the complexity of the copyright laws and the lack of transparency in music ownership, would be exceedingly difficult for a business where music is but a secondary component to their operations.  Together, ASCAP and BMI provide a license to broadcasters and other music users (including any business that performs music to the public, such as bars and restaurants, retail stores, digital music services, concert venues, hotels and so many other locations).
Continue Reading DOJ Ends its Review of ASCAP and BMI Consent Decrees – For Now…What Does it Mean?

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  We also note an upcoming event to which broadcasters will want to pay attention.

  • After a multi-year review of the

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  Also, we include a quick look at some important dates in the future.

  • The Enforcement Bureau advised broadcasters (and other

The Copyright Royalty Board today published a Federal Register notice announcing that SoundExchange was auditing a number of broadcasters and other webcasters to assess their compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act for the public performance of sound recordings and ephemeral copies made in the digital transmission process by commercial webcasters. A separate notice to audit the company Music Choice, which also provides a digital music service usually delivered with cable or satellite television services, was also issued to audit their compliance both on webcasting and on their subscription music service which is subject to separate royalty rules set out in a different part of the same section of the Copyright Act and set through a different Copyright Royalty Board proceeding. A third audit notice has gone out to a company called Rockbot, a Business Establishment Service whose royalties are exclusively paid under Section 112 of the statute (see our article here about the CRB-set royalties for these services that provide music played in various food and retail establishments and other businesses).

SoundExchange may conduct an audit of any licensee operating under the statutory licenses for which it collects royalties.  Such audits cover the prior three calendar years in order to verify that the correct royalty payments have been made. The decision to audit a company is not necessarily any indication that SoundExchange considers something amiss with that company’s royalty payments – instead they audit a cross-section of services each year (see our past articles about audits covering the spectrum of digital music companies audited by SoundExchange here, herehere and here).  Audits are conducted by outside accounting firms who, after they review the books and records of the company being audited, issue a report to SoundExchange about their findings.  The company being audited has the right to review the report before it is issued and suggest corrections or identify errors.  The reports are then provided to SoundExchange and, if they show an underpayment, it can collect any unpaid royalties, with interest.  While, by statute, the notice of the royalty must be published in the Federal Register, the results of the audit and any subsequent resolution usually are not made public.
Continue Reading Copyright Royalty Board Announces SoundExchange Audits of Royalty Payments for Webcasters (Including Broadcast Simulcasts) and Other Digital Music Services

It has been a busy week for regulatory actions affecting broadcasters.  Here are some of the significant developments of the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC held a virtual Open Meeting on Tuesday, voting to approve an

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC set the comment dates for its proposal for changing the cost to file various broadcast applications. The new

The use of music has long been an issue for those looking to provide music-oriented podcasts to the public.  As we have written before (see, for example, our articles here and here), clearing rights to use music in podcasts is not as simple as signing up with ASCAP, BMI and SESAC (or even adding GMR or SoundExchange to the mix).  These organizations simply cover public performance rights for music when, as our prior articles make clear, podcasts require additional rights to use music in ways not fully covered by the licenses that are offered by these organizations.  The rights to the use both the underlying musical composition and the actual recording of that composition by a band or singer must be obtained on an individual basis from the copyright holders.  That can often mean a search for both the publisher and record company who usually own those copyright in the musical composition and the sound recording, respectively.  This can often be a difficult search, especially if there are multiple songwriters of a composition (and hence multiple publishing companies which likely own the copyrights) or where the rights to the songs have been assigned over time from their original owners.  Plus, as we have written before, there is no easily accessible universal database yet in existence that provides up-to-date and complete records of who owns those copyrights.  All this combines to make the clearance of music for use in podcasts an arduous process – and almost prohibitive for any small podcaster who wants to use more than one or two pieces of music in connection with their show.

In an article in the radio industry newsletter Inside Radio this week, it appears that at least two music-oriented podcasts have attracted the attention of the music industry, receiving demands from the RIAA which has led to their ceasing of operations.  It appears that these cases demonstrate both the difficulty of clearing music for podcasts, and perhaps that, as podcasting is growing in attention, the legal issues associated with the use of music in those podcasts is coming to the forefront of the attention of the music industry.
Continue Reading Music in Podcasts – As Podcasts Shut Down Following Infringement Notices, Looking at the Required Music Rights

Here are some of the regulatory and legal developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how they may affect your operations.

  • The FCC this week released a Notice of Proposed Rulemaking proposing changes to the fees it charges broadcasters for