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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

In the digital world, it seems that everything is reinvented, and someone claims that they have a patent on that reinvention. In the last few weeks, we have seen news about patent claims asserted against radio broadcasters for their digital music storage systems, against public broadcasters for podcasts, and even against companies trying to comply with the FCC’s new guidelines for E-911 (emergency communications over wireless and VoIP networks) providers. These claims highlight that media companies and others in the communications industry have to be prepared for patent litigation almost as a cost of doing business – and need to consult with patent lawyers about strategies if they are faced with such claims, and consider the potential of concerted defenses with others similarly situated if the defense does not violate other laws (such as the antitrust laws). What claims have been raised recently?

Over the last two years, thousands of radio stations across the country have received letters claiming that their digital music storage systems violated a patent from a company called Mission Abstract Data. While the patents in question have a checkered history at the Patent Office – after being issued, they were reexamined and their basis questioned, with the Patent Office ultimately agreeing that the patents, as limited through the reexamination, were in fact valid. But that decision was itself challenged by equipment manufacturers whose music systems could infringe on the patent. That further reexamination is still underway.  Nevertheless, as that reexamination continues, the company that currently has rights to the patent, Digimedia, has sued four radio station owners in Texas claiming that they are violating these patents controlled by the company. These suits are in addition to a long-pending case against a number of large broadcasters, which has been stayed pending the outcome of the Patent Office reexamination (though the patent holder has asked that the stay be lifted – an argument to be considered later this month). Some observers have suggested that these new suits may be a precursor to other actions to try to convince reluctant broadcasters to take out a license rather than fight a lawsuit.Continue Reading More Patent Issues for Media Companies – Mission Abstract Data Patent Asserted in Law Suits Against 4 Radio Broadcasters, and a New Patent Claim Raised Against Podcasters, Including Public Broadcasters

One of those stories on which I’ve been meaning to comment was the story from the week before last where trade press reports summarized a legal action being brought against a television station in Cleveland for having improperly used Arbitron information in connection with its efforts to sell local advertising time on Pandora, the Internet radio company. I don’t want to write about the merits of that proceeding (though it does highlight that stations need to avoid using Arbitron information without permission, as the company is aggressive in protecting what it perceives to be its intellectual property rights), but instead to ask a broader question about what such cross-selling indicates for the FCC’s ongoing analysis of the current media markets in connection with its review of the multiple ownership rules. The cross-selling between a traditional media company and a company like Pandora, which claims radio station-like ratings in many radio markets, or with any other new media company delivering audio or video, are outside of the FCC’s ownership prohibitions. Thus, traditional media companies, like the TV station involved in this case, can sell the new media company’s advertising, or theoretically even provide programming to the new media company, without any cross-interest implication. But a combination between a daily newspaper (no matter what its circulation) and a broadcast station is effectively prohibited under the FCC rules – even though the newspaper may have a smaller audience than the new media outlet in some markets.

As services like Pandora grow, claiming audiences for audio entertainment as large as many local radio stations, these companies could enter into agreements for cross-selling with traditional media companies, and could theoretically enter into arrangements for programming as well, with no restrictions short of those potentially imposed by antitrust laws. So a new media company can cross-sell with television stations (or newspapers, though according to an article last week, both Pandora’s partnerships with television stations and newspapers for joint sales are being phased out and replaced with their own sales forces), without any FCC regulation. A service like YouTube, serving up an amazing amount of video content each day, could enter into partnerships with daily newspapers or multiple radio station owners without triggering any of the cross-interest issues raised by a similar agreement with a television station. Any of these large scale Internet audio or video services could even buy radio or television properties without triggering any FCC concern at all. Yet, we are still arguing over whether the cross-ownership of a newspaper and broadcast station should be allowed. Continue Reading TV Station Sued by Arbitron for Using Ratings Data to Sell Local Pandora Ads – What Does This Say About the FCC’s Cross-Ownership Rules?

Earlier today, we wrote about the FCC’s reminder that TV broadcasters must, by February 4, complete the upload to their FCC-mandated online public inspection file all materials from the current renewal term that were created prior to the August 2 effective date of the online public inspection file requirement.  We noted that the FCC had not addressed the question of stations that had outstanding renewals from the last renewal term – which could potentially mandate that some stations upload as much as 16 years worth of material to their online files.  Well, today, the FCC issued another decision waiving its rules so that stations only need to post Quarterly Issues Programs lists from the current license term on their online public files – subject to some caveats.

There are certain limits on this waiver.  If the limits are not met, then all Quarterly Issues Programs lists, back to the last granted renewal, have to be posted to the online public file.  The limits include the following:

  1. The last renewal cannot have been opposed by a member of the public.
  2. The delay in the renewal cannot have been caused by issues relating to the public interest service of the station to its local service area
  3. The station must continue to keep the Quarterly Issues Programs lists from the last renewal cycle at the station in a paper public file.

This decision does not relieve stations from all obligations to post materials from prior renewal terms, as described below.Continue Reading FCC Grants Certain TV Stations Limited Waiver from Online Public File Obligations for Documents from Prior Renewal Terms

The six months that the FCC gave to television stations to upload the contents of their paper public files to their new online public file seemed like a long time back in August, when the deadline was announced and the online public file rule became effective. But that deadline is upon us, and the FCC yesterday issued a reminder that television broadcasters (full power and Class A stations) need to have all of their required documents uploaded to their online public file by Monday, February 4.  The 6 month deadline actually falls on the weekend, so the FCC has given stations to the end of the day on Monday to come into compliance. The Commission has even offered to have people at the FCC over the coming weekend to answer questions about the uploading process for all those waiting until the last-minute to comply. 

As made clear in the public notice, no broadcasters need to upload contents of their political files that existed prior to the August 2 effective date of the rules. TV Broadcasters who are affiliates of the Big 4 networks in the Top 50 markets should already be uploading new political file material onto their online files, while other TV broadcasters have until July 1, 2014 before they are subject to the requirement that they upload their new political materials to the online file. In neither case do stations have to upload political file materials that precede the date that the obligation applies to their station. Continue Reading FCC Issues Reminder that TV Stations Need to Complete Online Public File By February 4 – Upload Documents Including All Quarterly Issues Programs Lists and EEO Public File Reports Since the Last License Renewal Grant

Every year, about this time, I dust off the crystal ball to offer a look at the year ahead to see what Washington has in store for broadcasters. This year, like many in the recent past, Washington will consider important issues for both radio and TV, as well as issues affecting the growing on-line presence of broadcasters. The FCC, Congress, and other government agencies are never afraid to provide their views on what the industry should be doing but, unlike other members of the broadcasters’ audience, they can force broadcasters to pay attention to their views by way of new laws and regulations. And there is never a shortage of ideas from Washington as to how broadcasters should act. Some of the issues discussed below are perennials, coming back over and over again on my yearly list (often without resolution), while others are unique to this coming year.

Last week, we published a calendar of regulatory deadlines for broadcasters.  This article looks ahead, providing a preview of what other changes might be coming for broadcasters this year – but these are delivered with no guarantees that the issues listed will in fact bubble up to the top of the FCC’s long list of pending items, or that they will be resolved when we predict. But at least this gives you some warning of what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.

General Broadcast Issues

 

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

 

Multiple Ownership Rules Review: The FCC is very close to resolving its Quadrennial review of its multiple ownership proceeding, officially begun in 2011 with a Notice of Proposed Rulemaking. The rumors were that the FCC was ready to issue an order at the end of 2012 relaxing the rules against the cross-ownership of broadcast stations and newspapers, as well as the radio-television cross-interest prohibitions, while leaving most other rules in place. TV Joint Sales Agreements were also rumored to be part of the FCC’s considerations – perhaps making some or all of these agreements attributable. But even these modest changes in the rules are now on hold, while parties submit comments on the impact of any relaxation of the ownership rules on minority ownership. Still, we would expect that some decision on changes to the ownership rules should be expected at some point this year – probably early in the year. Continue Reading Gazing Into the Crystal Ball – What Washington Has In Store For Broadcasters in 2013