On Line Media

Subscribe to On Line Media via RSS

The US District Court in Washington DC issued a decision earlier this month, enjoining the operation of the television streaming service FilmOn X throughout the United States – except within the Second Circuit (covering NY) where the US Court of Appeals reached a contrary decision in connection with Aereo – a very similar service. Both of these services utilize multiple small antennas to receive over-the-air television programs, which are recorded on a central server and sent over the Internet on demand to individual viewers. In effect, these viewers, by paying the subscription fee charged by the services, get their television programming on the Internet – through their computers and soon to their mobile devices.  The contrary decisions in these two cases illustrate a fundamental disagreement between two courts as to the meaning of the "public performance" right enjoyed by copyright holders in their copyrighted works.

As we wrote here, the Second Circuit, in the Aereo case, determined that, as the transmission of the over-the-air programming was done on an individual basis, at the demand of the individual viewer, it was not a “public performance.” In the Second Circuit’s opinion, the fact that the transmission is made to a single user, either when the program is aired or on a delayed basis, made each individual performance of the television program a "private performance," which did not infringe on the rights of the copyright holders, and more than a transmission of a signal from an antenna on someone’s roof to the television set in the living room was a public performance.  The DC Court disagreed with that interpretation, joining a District Court in California in deciding that this type of service, without the permission of the broadcaster, is a violation of the copyright laws.

The DC Court was very thorough in its review of the issue and its basis for disagreeing with the Second Circuit (or agreeing with the dissenting opinion in the Second Circuit). The issue raised in the FilmOn X case, whether the retransmission over the Internet of the over-the-air television signal of a broadcaster is essentially the same issue raised 40 years ago when cable television operators first started to operate, charging customers for bring them television signals from over-the-air TV stations. After the Supreme Court at that time, in the Fortnightly and Telepromter cases, agreed with cable operators that their retransmissions of television stations did not constitute a "public performance" of those signals, Congress intervened in 1976, revising the Copyright Act to make clear that such retransmissions of broadcast signals were in fact covered by the Act. The changes adopted then, which are still in place in the Copyright Act, were cited by the DC Court in finding that the operations of FilmOn X indeed violated the copyright holders public performance rights under the Copyright Act.Continue Reading DC Court Issues Injunction Against FilmOn X for Its Aereo-Like TV-Streaming Service – Increasing Legal Confusion Over TV Public Performance Rights

No one ever claimed that music royalties are easy to understand, especially in the digital age when nice, neat definitions that had grown up over many years in the physical world no longer necessarily make sense. The complexity of the world of digital music licensing is clear from many sources, but the Commerce Department’s “Green Paper” on Copyright Policy, Creativity, and Innovation in the Digital Economy does a good job discussing many of the music royalty issues that have arisen in the last 20 years that make copyright so confusing for professionals, and pretty much incomprehensible for those not immersed in the intricacies of copyright law on a regular basis. The Green Paper discusses some of the issues in music policy that make this area so confusing, and highlights where interested parties and lawmakers should focus their efforts to reform current rules to make them workable in the digital age. The Paper also discusses other areas of copyright policy that we will try to address in other articles.  You can find the Green Paper here (though note that it is about 120 pages and will take some time to download).

One of the most controversial issues that it addresses is the concept of a general performance right for sound recordings. As did Register of Copyrights Maria Pallante in the speech we summarized here, the Commerce Department puts the current administration on record as supporting the creation of such a right – a right that has not existed in the United States, except for a limited sound recording performance royalty for performances by digital audio companies like webcasters (see our summary of the royalty rates paid by different types of Internet Radio services here) and satellite radio (see our summary of the royalties to be paid by Sirius XM under the most recent Copyright Royalty Board decision). While the most controversial aspect of the creation of a broad sound recording performance royalty has been in connection with the extension of that royalty to broadcasters, the adoption of a general royalty, as advocated by the Green Paper would extend payment obligations to others who publicly perform sound recordings – including bars, restaurants, stadiums and other retail establishments.Continue Reading Making Music Rights Manageable in a Digital World – Issues Identified In Commerce Department “Green Paper” on Copyright Policy

Using music in commercials and other broadcast station productions can be treacherous. As we’ve written before, contrary to what some stations might think (based on the questions we often get from broadcasters around the country), a station’s ASCAP, BMI and SESAC royalties do not give them the right to use popular music in their station productions – or in their commercials. Nor do they give you rights to use music in video productions used repeatedly on a station, or on a station’s website. Hearing an award winner at the recent broadcast awards banquet at the Montana Broadcasters Association annual convention thank the music publishers that gave her permission to change the lyrics of a well-known oldie for her PSA for a local animal shelter warms a lawyer’s heart, recognizing that there are broadcasters who understand the rights issues. But from questions that I get all the time, I fear that many other broadcasters don’t.

ASCAP, BMI and SESAC are commonly known as the Performing Rights Organizations (or PROs), as they grant music users only a single right – the right to make public performances of musical compositions (or "musical works"). A musical composition is the words and music in a song – not the actual recording done by a particular singer or band. The composer and lyricist of the song have a copyright in the musical composition, though the right is usually assigned to a publishing company to administer. Each copyright in a composition gives its holder the right to exploit it in several different ways – and then user needs to get the rights to use the composition in any of these ways. The different rights include the right to publicly perform the composition (e.g. to play it before an audience or to transmit it to an audience by means of radio, the Internet or other transmission media). But the copyright holder also has the right to limit users from making reproductions of the composition (e.g. a recording of the song or any other “fixation” of the composition), distributing the composition (e.g. selling it or otherwise making it available to the public), or making a “derivative work” (taking the copyrighted work, using it, but changing it in some manner which, in the case of a musical composition, is probably most commonly done by changing the words of a song). So, for the Montana broadcaster to take a well-known song and to change the lyrics for her PSA required that the broadcaster get permission to make a derivative work (and probably to make reproductions, too, if copies of the re-recorded song were made).Continue Reading Using Music in Radio or TV Productions – Why ASCAP, BMI and SESAC Licenses Usually Are Not Enough

It has been almost a year since the FCC adopted rules for an online public inspection file for television stations. This week, the Commission released a Public Notice requesting comments on how the rules are performing – specifically focusing on the online political file. While the Commission’s rules currently require only that the affiliates of the top four networks, in the Top 50 markets, maintain their political files online, the Commission plans to expand that requirement to all television stations in July 2014. But first, it is asking for comments as to how the rules are working so far, whether changes are needed, and perhaps even whether additional information should be required for inclusion in the online political files of TV stations. Comments are also sought on a Petition for Reconsideration filed by various television broadcasters suggesting a different way of complying with the online political file requirements. 

Specific questions on which comments are requested include the following:

  • Have stations encountered particular obstacles in connection with posting documents to the political file?
  • Has online posting become easier over time as station personnel have become more familiar with the process?
  • Are there other steps the FCC could take to make the database more user-friendly?
  • Are smaller stations prepared to use the online file for their political files starting next year? If not, what needs to be done to help them prepare?

The FCC also asks the public, including political candidates and their representatives, to comment on whether they found it easy to access information in the file, whether improvements could be made, and whether the ability to view the file online has been beneficial.  What have interested groups said about the online political file since it was adopted? Continue Reading FCC Seeks Comments on Online Political File for TV Stations – Should Obligations Be Changed or Expanded?

In one week this month, Apple announced that it will get into Internet Radio, and Pandora, the biggest player in that space, announced that it will be buying a traditional, over-the-air radio station. What do these two big announcements say about the state of music royalties for digital music services? Apple’s struggles to get its service launched were well chronicled, as it was working to get an agreement for its new service from the record labels. What was less reported was its simultaneous negotiations with the music publishing community. Pandora’s radio station purchase, on the other hand, was admittedly a simple deal to take advantage of a blanket license available to all similarly situated companies owning radio stations. We’ll explain why these two deals were so different, and what impact the deals may have on other digital music services below.

The Apple deal is one negotiated with the copyright holders for the simple reason that the service that it is offering appears to be an interactive one, unlikely to be completely covered by any statutory (compulsory) or other blanket license. As we’ve written before, a statutory or compulsory license is one where the copyright holder, by law, cannot refuse to make available his or her copyrighted work. But, in return, the copyright holder receives a royalty set by the government – in the US, usually the Copyright Royalty Board. In the music world, the two most common compulsory licenses are the ones that allow webcasters and other digital music services to publicly perform sound recordings (the royalties paid by webcasters, satellite radio and digital cable radio companies to the record companies and artists), and the royalty that allows users (including record companies) to make reproductions of musical compositions in connection with the making of a sound recording, downloads, ringtones, and probably on-demand streaming services. This royalty is commonly referred to as the mechanical royalty, and is paid to songwriters and composers or their publishing companies. To qualify for these compulsory licenses, a company must follow certain rules. If they don’t, then they have to negotiate directly for the licenses from the copyright holder – which appears to be what Apple did.Continue Reading Apple Announces an Internet Radio Offering and Pandora Buys a “Real” Radio Station – What Does It Mean for Music Royalties?

The Register of Copyrights, Maria Pallante, has made a series of speeches about the need to modernize Copyright, including offering testimony before Congress on the matter.  Her comments are but one sign that modernizing the Copyright Act has become the new catch-phrase in Washington. As the Courts have over the last few months wrestled with a host of copyright issues principally arising from digital media, boundaries that had carefully been set up by established copyright principles have been blurred – like the distinctions between a performance and a reproduction, or a public performance and one that is not.  These are distinctions that can have great importance as to who must be paid or whether any payment at all is due under current copyright laws – as in the Aereo case about which we wrote here. The call to modernize the Act is one looking for a copyright act that fits the realities of the 21st century. 

In recent months, Aereo is but one of many cases where the Courts have struggled with how to apply laws that were developed for the analog media, where boundaries are relatively clear, to the new digital world, where many copyright concepts don’t clearly fit reality. We’ve seen a number of cases interpreting the DMCA safe harbor provisions for user-generated content – including the NY State case about which we wrote here deciding Internet service providers were not excused from liability where pre-1972 sound recordings were included in user-generated content, as well as much more sweeping decisions upholding the protections of the safe harbor in broader applications, including protections extended to YouTube in its long-running dispute with Viacom. We’ve seen a decision determining that there is no right to resell digital copies – finding that the first sale doctrine (that says that consumers can resell physical goods that they buy without compensating the original creator) does not apply to digital goods. And outside the litigation sphere, we’ve seen innumerable stories about rights and royalties – from questions about Internet radio royalties like those that may apply to the new Apple streaming service, to disputes over the rights to video programs taken from one medium (like TV) and used in another (online or otherwise on-demand). 

In a speech last week to the World Creator’s Summit in Washington, DC, Register Pallante revisited the topic of Copyright reform, and laid out many of the issues that she felt needed to be addressed in any comprehensive reform that may occur. The list was long, and is bound to be controversial. She noted that the last comprehensive reform of the Act, in the 1990s leading to the Digital Millennium Copyright Act, was 20 years in the making – a delay that can’t occur now given the number of pressing issues. As she noted, the importance of copyright has never been greater to the average person. That, to me is very clear, as digital media has put so many more people in a position to be involved in copyright issues, as doing everything from creating a Facebook or Pinterest page to a YouTube video, or accessing a file on BitTorrent or any other sharing site, can immediately immerse an individual in a copyright dispute with consequences far greater than the improper use of a copy machine or cassette recorder would have had 20 or 30 years ago. So what does she propose to examine?Continue Reading Register of Copyrights Maria Pallente Calls for Comprehensive Copyright Reform to Adapt to the Digital World – What Is Being Proposed?

The Librarian of Congress has announced the appointment of two new judges to the Copyright Royalty Board – marking a total change in the three judge board since the decision in the last webcasting royalty case (about which we wrote here). The two new judges are David Strickler and Jesse Feder. Mr. Strickler will serve through 2016, taking the position of Judge Wisnewski (who resigned about a year ago) as the economics expert required by the statute creating the Board. Mr. Stricker is currently Senior Counsel at a law firm in New Jersey, specializing in business litigation, according to his biography on the firm’s website, here. He also has a Masters Degree in economics, and is an adjunct economics professor as Brookdale College in New Jersey.

Mr. Feder takes the place of Judge Roberts, who was one of the original CRB judges and had worked in the Copyright Office in connection with the CARP process that set the first rates for webcasting back in 2002. Judge Roberts recently resigned from the Board. The position that Mr. Feder takes is required by statute to be filled by someone with Copyright experience. According to Mr. Feder’s online profile, he was the Director of International Trade and Intellectual Property at the Business Software Alliance, and previously held several supervisory positions at the Copyright Office and in the Library of Congress. His appointment, filling Judge Roberts’ seat, lasts only until 2014 (but he could be reappointed). Continue Reading Changes at the Copyright Royalty Board – Two New Judges Make for an All-New Board for the Upcoming Internet Radio Royalty Rate Setting Proceeding

This week, the Chairman of the US House of Representatives Judiciary Committee issued a press release stating that he intends that the Committee do a thorough reexamination of the Copyright Act, noting that new technologies stemming from digital media have upset many settled expectations in Copyright Law, and confused many issues. That this release was issued in the same week as a decision of New York’s Supreme Court, Appellate Division, First Department, on the obscure issue of pre-1972 sound recordings is perhaps appropriate, as this decision demonstrates how an obscure provision of the copyright act can have a fundamental effect on the functioning of many online media outlets – including essentially any outlet that allows user-generated content with audio. The Court’s ruling, which conflicts with a Federal Court’s decision on the same question, would essentially remove the safe harbor protection for sites that allow for the posting of user generated content – where that content contains any pre-1972 sound recordings which don’t fall within the protections of the Copyright Act. Let’s explore this decision and its ramifications in a little more depth.

As we have written before, an Internet service that allows users to post content to that service is exempt from any liability for that content under two statutes. The Digital Millennium Copyright Act insulates the service from any claims of copyright infringement contained in any of the user generated content, if the service has met several standards. These standards include the obligations for the service to take down the infringing material if given proper notice from the copyright holder. The Service cannot encourage the infringement or profit directly from the infringement itself, and it must register a contact person with the Copyright Office so that the copyright owner knows who to contact to provide the notice of the takedown. While the exact meaning of some of these provisions is subject to some debate (including debate in recent cases, including one that Viacom has been prosecuting against YouTube that we may address in a subsequent post), the general concept is well-established.Continue Reading How a NY State Court Decision on Pre-1972 Sound Recordings Clouds the Safe Harbor Protections of Websites Featuring User Generated Content

We’ve written extensively about copyright issues for audio services, but the big copyright decision that recently made headlines is a TV issue, though one that could have an impact on audio as well. That was the Second Circuit decision in the Aereo case – upholding a lower court decision allowing a company to retransmit over-the-air TV signals to consumers over the Internet – without any royalties to the TV broadcasters or television program producers. The decision looked at the issue of what defines a “public performance” that would require the consent of the copyright owner. The Court found that there is no public performance of television programming where the service is set up so that the programming is streamed to the viewer individually, at their demand, rather than transmitted all at once to multiple consumers – as by a cable system or a  satellite television service. The decision is a controversial one – decided by a 2 to 1 vote with the dissenting judge issuing a strong dissent arguing that the Aereo service was nothing more than a “sham” designed to evade the royalty obligations or copyright permissions that would be necessary if the service were deemed a cable system or other type of multichannel video provider. What does this decision really mean for television stations, and could it have broader implications for the reuse of all sorts of broadcast content on the Internet?

The decision focused on the question of whether the Aereo service “publicly performs” the programming that it sends to its subscribers. Under the Copyright Act, a copyright owner has a bundle of rights which it has the exclusive ability to exploit. This includes the right to copy the copyrighted work, to distribute it, to make a “derivative work” (a work that uses the copyrighted material and changes it in some way – like putting new words to the melody of a copyrighted song), and the right to publicly perform it. The definition of a public performance includes any transmission or retransmission of a performance to multiple individuals at the same time or at different times. This language was added to the Copyright Act at the time of the advent of cable television, to make clear that services like cable, that take an existing performance (like that of a broadcast television station) and then further transmit it to other people (even people who could theoretically pick up the original performance) were themselves making a public performance that needed the consent of the copyright holder or a government-imposed statutory license (which allows the performance as long as the party making the performance pays the copyright holder an amount set by the government). From a cursory look, it would appear that Aereo is retransmitting the signal of the TV station to all of its customers. Why, then, did the Court rule that no public performance was involved?Continue Reading Aereo Court Decision Permits Internet Streaming of TV Programs Without Royalties – Undermining the Public Performance Right?

April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children’s television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station’s public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC’s proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.

Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1.   Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1. Continue Reading April FCC Obligations for Broadcasters – Renewals, EEO, Quarterly Issues Programs Lists, Captioning of Live or Near-Live Online Programming, FM Translator Filings, an FM Auction and Comments on Alien Ownership