user generated content

The New York State Court of Appeals, the state’s highest court, has ruled that there is no public performance right in pre-1972 sound recordings in the state of New York. The decision (available here in a version subject to revision) was reached after the US Court of Appeals certified the question to the state court as being necessary to resolve the appeal of a US District Court decision which had found such a right to exist in a lawsuit brought by Flo & Eddie of the band the Turtles against Sirius XM Radio. We wrote about the District Court’s decision here, and the certification to the state court here. Certifying a question from a Federal Court to a State Court is a rare matter, done when a Federal Court needs guidance as to the state’s treatment of a legal issue under state law where there is no clear precedent, and where the state law issue is central to the resolution of the case. The NY Court of Appeals did not have to accept the certification, but it did to resolve this somewhat obscure issue of state intellectual property law (most of which is governed by Federal law).

The NY Court’s decision was not unanimous, as there was one dissenting Justice who would have found that a performance right does exist. The dissenting justice thought that there should be a state performance right – but a right co-terminus with the Federal right, thus applying only to digital services and not to terrestrial radio and presumably not to retail outlets, bars and restaurants and other businesses that may play music. That Justice seemed to be motivated by a desire to keep pace with current developments in the music industry, suggesting that common law should evolve with the times and, as streaming is now becoming more important to the music industry, there should be a royalty for such streams. Another justice concurred with the decision that there is no performance royalty in noninteractive services like that offered by Sirius XM, but there should be for interactive services like that offered by Spotify and Apple Music. The majority of the court disagreed with these justices.
Continue Reading NY State’s Highest Court Finds that There is No Public Performance Right in Pre-1972 Sound Recordings

While the new Congress will not begin until after the New Year, already copyright reform has been teed up to be on the agenda.  Posted last week on the website of the House of Representative’s Judiciary Committee was an announcement that the committee would be posting policy proposals for copyright reform from time to time, and asking for public comment.  The first proposal was posted with that announcement, looking at suggestions for reform of the structure of the Copyright Office.

The initial proposals are modest, suggesting that the Register of Copyrights be independently appointed (rather than being selected by the Librarian of Congress), that the Office has greater independence to appoint advisory committees and over its technology budget, and that there be authority to set up a small copyright claims adjudicatory process.  We wrote about the small claims proposal that was advanced in Congress last year, here.  We also have written about more sweeping changes that have been proposed for the Copyright Office, here, which apparently are not yet on the table.  However, as this policy proposal solicits public comment by January 31, 2017, other ideas for the reform of the Copyright Office may be advanced in the comments that are submitted. 
Continue Reading The Next Congress Has Not Yet Begun, and Already Copyright Issues are Poised for Comment – First Up, Copyright Office Reform

The Copyright Office’s new system for registering designated agents for the service of take-down notices when it is believed that user-generated content infringes on intellectual property rights has now gone live. The Copyright Office issued a reminder, here, that all new registrations of agents for the service of these take-down notices must now be submitted in this new electronic system. We wrote more here about the new system and the new requirements for registration, including the requirement that all who are already registered on the old paper forms must re-register in the new system by December 31, 2017. This is important for all media companies who allow third-party users to post content on their sites – whether that content is written articles, photos, videos, music or any other material that could infringe on anyone’s rights under the Copyright Act. Registration is a pre-requisite of getting “safe-harbor” protection for companies who host such third-party content under Section 512 of the Digital Millennium Copyright Act. We discussed this issue in my seminar yesterday on legal issues for broadcasters in digital and social media, the slides from which will be posted shortly.

On Section 512, the safe harbor for those who host user-generated content, the Copyright Office last month issued a Request for Additional Comments in its study of the safe harbor. The safe harbor provides that, if an Internet service provider follows certain rules including the registration of an agent for take-down notices, and some unrelated party uses the service and posts or transmits unauthorized copyrighted material, the service has no liability. Exactly what requirements the service needs to observe depends on the type of the service. ISPs, who provide a mere conduit for material transmitted by others have one set of rules, while companies (including most media companies) that allow content to be posted on their sites to be viewed by the public, have another set of rules that place more obligations on these companies, including avoiding any steps to encourage the posting of infringing content, taking down infringing content of which they have actual notice or for which they have been received an uncontested take-down notice, and otherwise not affirmatively profiting from such infringing content. As part of its role of advising Congress on copyright issues, the Copyright Office began a study of the Section 512 exemption a year ago, which we wrote about here. Congress has also held hearings on the matter, and may well try to tackle it in its reform of the Copyright Act that is supposed to be in the works after the new Congress convenes in 2017. Last month’s request for additional comments suggests just how difficult that the reform of this section will be.
Continue Reading Copyright Office New Electronic Registration for Designated Agents for Take Down Notices Goes Live – and The Office Asks for More Comments on Assessing The Section 512 Safe Harbor for User-Generated Content

Section 512 of the Copyright Act provides a safe harbor for Internet service providers whose systems are used to transmit content created by third parties which infringes on copyrights.  The provisions apply not only to common-carrier like services that merely transmit third-party content, but also to websites and other digital services that allow users to post material onto the service provider’s own sites – services like YouTube or Facebook whose very businesses are built on the ability of individuals to posting material on their sites.  We’ve written about the safe harbor recently (see our articles here and here).  The safe harbor requires, among other things, that the service provider not encourage the posting of infringing content on the site, but also that it take-down infringing material found on the site, and that it provide a “Designated Agent” for service of “take-down notices” – requests from copyright holders that infringing material be taken down from the site.  That agent must be identified both on the website of the service and registered with the Copyright Office.  The Copyright Office today announced rules for a new electronic system for registering such Agents.

We wrote about the Copyright Office’s proposal advanced 5 years ago for the new system, and it appears that it has now become a reality.  Currently, service providers register a Designated Agent on a paper form filed with the Copyright Office, which the Copyright Office scans as a PDF file that is uploaded, individually, onto the Copyright Office’s website.  Many felt that this system was clumsy and did not provide the information necessary for the take-down system to work efficiently, as it was difficult to search and was often full of outdated information.  The new electronic system adopted by the Copyright Office and effective on December 1, is expected to remedy many of these complaints.
Continue Reading Copyright Office Announces Rules for New Electronic Filing System for Service Provider’s Designated Agents for Take-Down Notices Under Section 512 Safe Harbor for User-Generated Content

In recent days, the press has been full of stories about Axl Rose from the band Guns N’ Roses sending take-down notices to websites, including Google affiliated sites, that feature a picture taken of him from one of his concerts making him look to be overweight (see, e.g. stories available here, here and here). The photos are often accompanied by captions, reinterpreting Guns N’ Roses songs by modifying the lyrics to include references to food or overeating or otherwise making light of the picture. The take down notice is premised on Rose’s alleged ownership of the underlying photo. According to the press reports, Rose requires all professional photographers taking photos at his concerts to sign releases, giving Rose ownership of all copyrights in the images taken. The legal issues raised by the take down notice are many – including reflecting on the recent calls for reform of the “safe harbor” provisions of the Digital Millennium Copyright Act for user-generated content much in the news lately, particularly with respect to YouTube videos including music (see our article here). No doubt, however, the first issue that will be considered in answering these take down notices is whether the images and associated commentary constitute “fair use.”

The DMCA has adopted a “safe harbor” for “internet service providers” including website owners who host user-generated content – content that is posted not by the site owner and its employees, but instead by users of the site (see our article here). As the hosts of these sites do not control what is being posted, Congress in adopting the DMCA, thought that it was important that the site owners not be liable if users post content that could potentially infringe on some third party’s intellectual property rights. However, the site owner must take certain steps to minimize the posting of infringing content – including making clear in its descriptions of the proper use of the site that users need to respect intellectual property rights, and providing both on the site and in a registration form filed with the Copyright Office the name and contact information for a person who copyright holders should contact if they believe that infringing content has been posted on the site (the Copyright Office is proposing changes to that form, see our article here). Copyright holders can then notify these identified individuals of the perceived infringement by sending what are commonly referred to as “take down notices.” Certain formalities need to be followed in sending these notices are provided under the provisions of the DMCA, including a specific identification of the infringing content, and a good faith belief that the content is in fact infringing. In connection with any take down notice and the decision of the site owner as to whether to honor that request, the question of fair use must be evaluated.
Continue Reading Axl Rose DMCA Takedown Notices Illustrate the Difficulty With Safe Harbor Reforms – User-Generated Content and Fair Use Issues

Both the popular and media trade press has been full of reports in the last few weeks about musicians and other artists petitioning the Copyright Office to hold YouTube and other online services liable for infringement when the artists’ copyrighted material appears on the service (see, e.g. the articles here and here). The complaints allege that these services are slow to pull infringing content and, even when that content is pulled from a website, it reappears soon thereafter, being re-posted to those services once again. While the news reports all cite the filings of various artists or artist groups, or copyright holders like the record labels, they don’t usually note the context in which these comments were filed – a review by the Copyright Office of Section 512 of the Copyright Act which protects internet service providers from copyright liability for the actions taken by users of their services (see the Notice of Inquiry launching the review here). All of these “petitions” mentioned in the press were just comments filed in the Copyright Office proceeding, where comments were due the week before last. The Copyright Office will also be holding two roundtable discussions of the issues raised by this proceeding next month, one in California and one in New York City (see the notice announcing these roundtables here). What is at issue in this inquiry?

Section 512 was adopted to protect differing types of internet service providers from copyright liability for material that uses their services. Section 512(a) protects ISPs from liability for material that passes through their systems. That section does not seem to be particularly controversial, as no one seems to question the insulation from liability of the provider of the “pipes” through which content passes – essentially a common carrier-like function of just providing the infrastructure through which messages are conveyed. Sheltered from liability by Section 512(b) are providers of systems caching – temporary storage of material sent by third-parties on a computer system maintained by a service provider, where the provider essentially provides cloud storage to third-parties using some automated system where the provider never reviews the content. That section also does not seem particularly controversial. Where the issues really seem to arise is in the safe harbor provided in Section 512(c) which is titled “Information residing on systems or networks at the direction of users” – what is commonly called “user-generated content.”
Continue Reading Copyright Office Reviews Section 512 Safe Harbor for Online User-Generated Content – The Differing Perceptions of Musicians and Other Copyright Holders and Online Service Providers on the Notice and Take-Down Process

March appears to be another busy month on the FCC’s regulatory calendar.  While March is one of those months where there is not the usual assortment of EEO public file reports, quarterly issues programs lists or children’s television reports and noncommercial ownership report obligations (see our Broadcasters’ Regulatory Calendar here for some of these dates), it is a month with many other significant regulatory dates.  For instance, this month brings the scheduled start of the TV incentive auction as stations make binding commitments as top whether they will accept the FCC’s opening bids in the reverse auction.  It also brings deadlines for comments in a number of other proceedings that may affect broadcasters, including the FCC’s proceeding on AM radio revitalization and the Copyright Office’s look at the safe harbor for user-generated content.  In addition to comment periods, the lowest unit rate periods that apply during the 45 days before a Presidential primary are in effect in many states, plus March brings other deadlines including those for the first filing date for monthly SoundExchange Reports of Use under the new Internet radio royalty rates.  All make for a month where broadcasters need to watch regulatory developments very closely.

So let’s start with the incentive auction.  As we wrote just a few days ago, March 29 is the deadline for TV broadcasters to make a binding commitment to accept the FCC’s initial offer to buy their spectrum.  TV broadcasters who filed applications to participate in the Incentive Auction back in January were merely leaving the door open to their participation.  The March 29 deadline is the real legally binding commitment to surrender their spectrum at the price that the FCC has offered for their stations.  To make sure that broadcasters understand what they are doing, and how to make their commitments, as we wrote in our article, the FCC has set up an online tutorial on the system and will be holding a workshop about the process.  So if you have a TV station interested in taking advantage of the FCC’s offer to buy out your frequency, this is the month that the commitment needs to be made.
Continue Reading March Regulatory Dates for Broadcasters – Including Incentive Auction Commitments, New Webcasting Royalties, and Comments on AM Revitalization and Copyright Safe Harbor for User-Generated Content

The US House of Representatives has been looking at potential reform of the Copyright Act for some time, holding a number of hearings before the Committee here in Washington DC (see, for instance, our article here about one of those hearings). Yesterday, the Committee announced that it is taking its examination on the road, conducting a “listening tour” of the country, starting with a roundtable on music issues to be held in Nashville on September 22. The Committee’s announcement of the listening tour (available here), says that future dates and locations (and presumably topics) will be announced at a later date.   The announcement states:

America’s copyright industries – movies, television programming, music, books, video games and computer software – and technology sector are vitally important to our national economy.  The House Judiciary Committee’s copyright review is focused on determining whether our copyright laws are still working in the digital age to reward creativity and innovation in order to ensure these crucial industries can thrive.

So what are some of the issues that are likely to be considered? On the music side, there are many issues, including questions about the disparity between the payments from digital media companies made to songwriters as opposed to sound recording rights holders (see our article here), the amounts of the royalties themselves (with digital media companies finding many royalties to be too high to allow for a profitable operation while rights holders argue that they are too low to compensate creators for the decrease in the sale of music in a physical form – see our article on how the one-to-one nature of the digital performance complicates the discussion of the value of music when compared with analog performances), issues as to whether broadcasters should pay a performance royalty for sound recordings, and the question of pre-1972 sound recordings (see our last article on pre-1972 sound recordings, here). Many of these issues were addressed by the Copyright Office in its report on reform of the copyright laws as they relate to music (see our summary here). Some of the songwriter issues are also being considered by the Department of Justice in its review of the antitrust consent decrees governing ASCAP and BMI (see our article here).
Continue Reading House Judiciary Committee Begins Nationwide Listening Tour on Copyright Reform – First Roundtable on September 22 in Nashville Focusing on Music Issues

Last month, we wrote about the FCC issues facing broadcasters in 2015.  Today, we’ll look at decisions that may come in other venues that could affect broadcasters and media companies in the remaining 11 months of 2015.  There are many actions in courts, at government agencies and in Congress that could change law or policy and affect operations of media companies in some way.  These include not just changes in communications policies directly, but also changes in copyright and other laws that could have a significant impact on the operations of all sorts of companies operating in the media world.

Starting with FCC issues in the courts, there are two significant proceedings that could affect FCC issues. First, there is the appeal of the FCC’s order setting the rules for the incentive auction.  Both Sinclair and the NAB have filed appeals that have been consolidated into a single proceeding, and briefing on the appeals has been completed, with oral arguments to follow in March.  The appeals challenge both the computation of allowable interference after the auction and more fundamental issues as to whether an auction is even permissible when there is only one station in a market looking to give up their channel.     The Court has agreed to expedite the appeal so as to not unduly delay the auction, so we should see a decision by mid-year that could tell us whether or not the incentive auction will take place on time in early 2016.
Continue Reading What Washington Has in Store for Broadcasters and Digital Media Companies in 2015 – Part 2 – Court Cases, Congressional Communications and Copyright Reform, and Other Issues

We wrote about the Department of Commerce’s Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy that was released back in July. While our article principally addressed the music issues raised by the Green Paper, many other issues were discussed in its 120 pages. The questions raised by the Aereo case (about which we wrote here, and we wrote about the similar service, FilmOnX, here) were also discussed in the paper. Many other issues were also addressed, and the Commerce Department, through NTIA (the office within Commerce that advises the Executive Branch of the government on Telecommunications issues) and the Patent and Trademark Office, is now beginning the process of asking for public comment on some of the many issues raised in the Green Paper. The NTIA released a Public Notice, dated September 30 and still available on the NTIA website despite the Federal government shutdown, asking for comment on a number of these issues. 

The specific issues on which comments are sought (with our explanation of some of the issues involved) are the following:

  • "the legal framework for the creation of remixes" – the only music issue specifically teed up for comment.  The Green Paper had asked if consideration should be given to some sort of compulsory license for remixes, mash-ups and similar uses of music, or if other steps could or should be taken to allow for the creation of such works;
  • "the relevance and scope of the first sale doctrine in the digital environment." This is asking for comments on questions including whether consumers should be able to re-sell downloads that they purchase, as they have the right to do in a physical world;
  • "the appropriate calibration of statutory damages in the contexts of individual file sharers and of secondary liability for large-scale infringement."   This question seemingly stems from the issue raised by the huge statutory damage requests in mass-infringement cases, damages that in one case alone could exceed the entire revenue of many industries whose works are infringed. Questions have been raised as to whether the full amount of statutory damages should be available for each and every infringement, particularly where such infringement is done on a limited basis.  Obviously, though, copyright holders are concerned about large scale infringement, and want to preserve and even expand penalties in such cases;
  • "whether and how the government can facilitate the further development of a robust online licensing environment." It is unclear exactly what this question is looking at. Perhaps it is seeking comments on ideas such as the one the that government create some sort of copyright hub that would facilitate the identification of copyright holders and the licensing of their works; and
  • "establishing a multistakeholder dialogue on improving the operation of the notice and takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (DMCA)." Next to the question on damages, this issue is likely to be among the most controversial of the proposals, and we’ll address that below in a little more detail below.

The reform of the DMCA notice and takedown system is looking to reform the current system where operators of websites generally have immunity from liability for copyright infringement for user generated content – unless the sites knew specifically about the infringing content and did not take steps to take it down, or unless they actively solicited or encouraged such uses. This is often referred to as the "safe harbor" for sites that feature user-generated content.  The safe harbor has allowed many of today’s most popular services, including YouTube and even Facebook to thrive, allowing millions of consumers to have an outlet for their interests through social sharing, without the sites having to review each and every post to determine if there is infringing content in the material that users have shared. We have written about this safe harbor before (see, for instance, our posts here and here).Continue Reading Comments Sought on Commerce Department Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy – Including Issues of User Generated Content and Appropriate Damages for Copyright Infringement