In Search for Copyright Relief, Pandora Opens Box of Ownership Requirements

Alien ownership conditions imposed on Internet radio service when it tries to buy small-town radio station

This is the story of how Pandora, in an effort to cut its copyright royalty costs, managed to saddle itself with a complex array of ownership reporting requirements designed by the FCC to keep Box Elder, South Dakota safe from aliens. It’s a true story.

Pandora, of course, is the prominent Internet music streaming operator. Since its business consists of transmitting recorded music digitally, it’s on the hook for a lot of copyright royalties payable, through ASCAP, BMI and SESAC, to the composers of the music it transmits. The precise rates it pays are generally subject to direct negotiation between Pandora and the performance rights organizations (PROs).

In contrast to Pandora and other streaming services that are limited exclusively to Internet distribution, radio broadcasters do not have to negotiate individually with respect to royalties. Rather, broadcasters’ rates are set industry-wide through negotiations between, on the one hand, the Radio Music License Committee (RMLC) acting on behalf of broadcasters and, on the other, the various PROs. (The federal courts are also involved in the process to a degree.) Those negotiations have been good for traditional over-the-air broadcasters, who as a result pay lower royalties for their own digital transmissions than do Pandora and other Internet-only services. And those lower rates apply even if the broadcaster’s stream(s) carry content other than what the broadcaster is sending over-the-air.

Pandora has been involved in acrimonious negotiations, and even litigation, with ASCAP regarding its royalty rates. But then it had an idea: why not take advantage of the attractive over-the-air broadcaster rates by simply becoming a broadcaster?

And so it was that Pandora came to Box Elder (pop. 7,800), where the only local radio station in town was for sale.

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Sunrise for .SUCKS

The new top level domain that many love to hate is now available to registered trademark holders – but pretty soon it’ll be open to everybody else.

We told you to expect it, and now it’s happening: new generic Top Level Domains (gTLDs) are becoming available almost daily. (Fuzzy on gTLDs? Check out our post from last year for more background.) Now would be a good time for businesspeople to focus on the new gTLD that many love to hate – .SUCKS.

Dot-SUCKS is currently in its “Sunrise Period”. That’s important if you’ve got a registered trademark, because that means that you’ve only got until May 29, 2015 to take advantage of your rights as a registered trademark holder. The “Sunrise Period”, of course, is the time during which trademark owners who have registered their marks in ICANN’s Trademark Clearinghouse can get first dibs on registration of their mark in the .SUCKS domain. After the Sunrise Period closes (on May 29), registrations will be on a first-come/first-served basis and your trademark registration won’t necessarily help you out if somebody else – a competitor, a disgruntled former employee, an unsympathetic consumer advocacy group, etc., etc. – happens to get in line ahead of you.

So if you (a) hold a registered trademark and (b) want to keep anybody else from signing up for “[Your Trademark].SUCKS”, NOW is the time to act. Don’t worry, you won’t be the first. Far from it: a convenient ticker running on the website of Vox Populi Registry (the folks who run the .SUCKS registry) indicates that the following big names have already signed themselves up: XBOXLIVE, GUITARCENTER, CITIBANK, PLAYTEX, WALMART, UNDERARMOUR, VISA, TUPPERWARE, among lots of others.

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Copyright Tug of War: How May "Fair Play Fair Pay" Fare?

Music industry and NAB gear up – again – for war over performance rights.

Like the swallows returning to Capistrano, the debate about “performance rights” has again returned to Washington – this time signaled by the introduction of H.R. 1733, the “Fair Play Fair Pay Act” (FPFPA). While this year’s version of the perennial effort to impose additional copyright obligations on broadcasters features some new twists, its passage is far from guaranteed, although no one should be surprised if it advances at least part way through the legislative process.

“Performance rights”, of course, is the short-hand expression for a particular type of copyright interest, one held by recording artists. The right covers the artist’s particular recorded performance. (For more detail, check out my 2009 blog about an earlier performance rights effort.) While the “performance right” has been around since the 1990s, broadcasters have not been subject to it. That’s because Congress acknowledged that recording artists and radio broadcasters enjoy a unique relationship through which each side benefits from the other: radio stations get program content from recording artists who in turn get free promotion from airplay. The classic win-win situation. Rather than disrupt that, Congress chose instead simply not to impose any performance rights obligations on broadcasters for over-the-air play. (Note: Webcasting is another story: broadcasters are liable for performance rights royalties for material that they webcast, even if that material is identical to the broadcaster's over-the-air programming.)

But for years the recording industry has been pressing Congress to eliminate that exemption. The FPFPA – which is sponsored by a bipartisan group of folks including Rep. Jerrold Nadler (D-NY), Rep. Marsha Blackburn (R-TN), Rep. John Conyers (D-MI) and Rep. Ted Deutch (D-FL) – is this year’s try. It would amend the Copyright Act in several ways. You can read the entire 26 page bill if you want, but for a very good summary of all provisions, I suggest you check out this post from the Future of Music Coalition.

How would this bill affect broadcasters?

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Now Available: Kevin Goldberg on Music Licensing - The Online Version

Frequent CommLawBlog contributor and copyright guru Kevin Goldberg (that's his smiling face next to the post) presented a 90-minute webinar on “Everything You Wanted (or Needed) to Know About Music Licensing, But Were Afraid to Ask” on March 25. Kevin covered the full landscape of licensing issues for broadcasters and webcasters – his PowerPoint was more than 75 pages long, for crying out loud (but trust us, as Kevin took us all through it, it was highly accessible).

We promised all attendees that we’d be providing a link to the recording of the Swami’s show, and here it is. This will get you the audio and video. Even if you didn’t happen to be one of the lucky attendees, we welcome you to check it out (but you’ll have to register by providing your name and email address).

Also, if you want a copy of the PowerPoint slides, you can access one here. It provides an excellent reference guide for anyone using music for broadcasting or webcasting.

Flo and Eddie's Next Victim: Pandora

Anti-SLAPP defense gets farther than expected, but fails in the end ... this time.

In the continuing saga of Flo and Eddie vs. The Digital World, we have a twist. Sure, Flo and Eddie won again – it’s not that much of a twist. But the adversary this time – that would be Pandora – came up with a new response, and it didn’t go down without a fight.

If you’re unfamiliar with the New Litigation Adventures of Older Rock and Rollers, check out my previous posts on the efforts of some , um, let’s just say “more mature” rock artists looking for royalties for the digital public performance of pre-1972 sound recordings. If you’re one of our regular readers, you’ll know that the score to this point is:

Plaintiff Recording Artists or Record Labels: 3

Defendant Sirius XM: 0

The latest case pitted Pandora against Flo and Eddie, in front of U.S. District Judge Phillip Gutierrez in the Central District of California. Since F&E had already won one case in the same court before the same judge, Pandora was obviously looking at long odds. But that didn’t stop it from pulling out a couple of novel arguments.

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Copyright Office Offers A Sketch of the Future of Music Licensing

245-page report takes no action, but suggests important changes to the music licensing process

Almost one year after launching a far-reaching inquiry into the “effectiveness of existing methods of licensing music”, the Copyright Office (CO) has released the 245-page report setting out its conclusions. Titled “Copyright and the Music Marketplace”, it doesn’t actually change anything – but it sets out a wide range of observations and recommendations that could resonate for years in Congress and elsewhere, possibly leading to major changes throughout the music licensing universe.

I wrote about the CO’s initial two Notices of Inquiry last March and July. They posed 24 questions across eight different subjects relating to music licensing. The CO also held public roundtables in Nashville, Los Angeles and New York. It is therefore not surprising that the CO’s report is comprehensive. And here’s a surprise: Despite my earlier prediction that the CO’s eventual conclusions would likely be unfavorable for broadcasters, as it turns out several recommendations actually favor users of copyrighted music, including broadcasters. And to the extent that the CO is looking to a possible overhaul of pretty much all aspects of the licensing process, all participants in that process could end up benefiting from a less fragmented, more consistent system.

But the report clearly urges Congress to move legislation that would create a performance right applicable to over-the-air broadcasting (though not exclusively), so one side of the industry is still likely to benefit more.

Before delving into some of the details, we should probably note some general principles identified in the report. According to the CO, the study revealed broad consensus on four key principles:

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TV Stations: The SESAC Check is (Almost) in the Mail

TVMLC settlement with SESAC gets the thumbs up from judge; important forms to be sent to participating stations to get the refund process rolling

If you’re a full-power TV operator in the U.S. (or its territories) and you obtained a performance license from SESAC any time after January 1, 2008, make sure you keep an eye out for a form you’re likely to receive from the Television Music License Committee (TVMLC) or its attorneys entitled Settlement Antitrust Class Action Settlement Refund Payments.” Fill it out, return it, pass GO, collect much more than $200 and roll again. (Note: Stations own or operated by Univision or Telefutura (now UniMas) or any station that opted out of the settlement don’t qualify. We suspect that you know who you are.)

The settlement in question resolves claims made by the TVMLC against SESAC. I’ve already written in considerable detail about the settlement itself, so if you’re at all hazy on the details, take a look at my earlier post. As I reported last November, the TVMLC and SESAC had reached a settlement agreement and submitted it to Judge Paul A. Engelmayer, the federal judge presiding over the case.

The mere fact that the parties had resolved their differences was not the end of the story; the judge had to sign off on the deal, too. So a court-issued Notice was circulated giving any malcontents the right to protest the settlement terms or opt out. This was followed by a hearing held on February 18, 2015 – and one day later Judge Engelmayer sealed the deal in an Opinion and Order. With that, if you’re a qualifying station, the money will now start coming your way once TVMLC crunches some numbers.

The bulk of the Opinion and Order is legal mumbo jumbo addressing certain necessary issues, like whether the class was properly certified (it was), whether the settlement was “fair, adequate, and reasonable, and not a product of collusion” (no problem there, either), whether the plan of allocation was also “fair and adequate” (yup), and whether the contemplated attorney’s fees and costs make sense (they do).

But really, most affected TV licensees are probably far more interested in another set of questions, like:

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Is There a Geofencing Exemption from Digital Performance Royalties? Concentrate and Ask Again

VerStandig lawsuit tossed on technicalities.

Will geofencing really provide webcasting broadcasters a shield that they can deploy against royalty claims? While that question was raised in a lawsuit last spring, it won’t be getting answered soon: the case has been dismissed … for the time being, at least. Thanks to considerations that many may view as “technicalities”, U.S. District Judge Michael F. Urbanski tossed the suit filed last April by Verstandig Broadcasting. But he did so “without prejudice”, meaning that the core question remains unanswered and may still be raised, and resolved, in a later suit.

As we have previously reported, “geofencing” is a technology that, in theory, permits a webcaster to limit access to its programming based on the physical location of the computers receiving the webcast. It works by checking the “receiving computer’s IP address, WiFi and GSM access point, GPS coordinates, or some combination against a real world map of those virtual addresses”.

Why would that give a webcasting broadcaster a way around webcaster royalties?

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Pre-1972 Sound Recording Litigation: The Beat Goes On

Flo and Eddie, still on a roll in New York, face a decision; meanwhile, a new plaintiff surfaces in California

For those of you awaiting the next installment of “Flo and Eddie Get Sirius”, we have some news. Recall that last November, the former Turtles were oh-so-close to getting a judgment against Sirius XM in the New York version of their fight to collect for infringements of Flo and Eddie-owned copyrights covering a number of pre-1972 sound recordings. The only thing that stood between them and a favorable judgment was Judge Colleen McMahon’s invitation (actually, it was an order) to Sirius XM to show cause why judgment shouldn’t issue.

As we expected, Sirius XM came up with a number of arguments, none of which struck paydirt. It claimed that the plaintiff corporation, Flo and Eddie, Inc., didn’t really own the copyrighted works at issue – a claim Judge McMahon rejected. Sirius XM’s argument was based on the notion that, while Howard Kaylan and Mark Volman (who used the noms de disque Eddie and Phlorescent Leech a/k/a Flo, respectively) clearly held title to the recordings, it wasn’t clear that they had formally transferred title to their corporate persona, “Flo and Eddie, Inc.” Judge McMahon reviewed the available evidence and was convinced that the corporation held title.

Along the same lines, Sirius XM argued that Flo and Eddie had implicitly authorized the digital transmission of their works by appearing on (and hosting) various Sirius XM shows. Judge McMahon wasn’t convinced, mainly because anybody alleging such implied authority has a very high burden to meet (and Sirius XM didn’t meet it). Along the same lines Sirius XM claimed that Flo and Eddie had waived any infringement claims or that they should be estopped from raising them. McMahon concluded that this was akin to the “implicit authority” claim and rejected it.

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Update: Comment Deadlines Extended in MVPD-Redefinition Proceeding

Last month we reported on the FCC’s proposal to redefine the MVPD universe  to include services “untethered” from any infrastructure-based definition – in other words, to include Internet-delivered, “over-the-top” services. The Media Bureau has now extended the comment deadlines in that proceeding. As a result, comments are now due by March 3, 2015 and reply comments by March 18. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No.14-261.

Annual Webcaster Wake-Up Call! SoundExchange Reports and Payments Due Soon

Plus ça change, plus c’est la même chose - If you’re a webcaster, you’ve got until February 2 to wrap up your annual SoundExchange homework. 

Sigh. Every year brings us another year closer to death. It sure feels that way as we do our Webcaster Wake-Up Call for 2015 – the last year for the rates and terms set in the Webcasting III decision. (The rates and terms that will govern for the next five-year term, i.e., 2016-2020, will be set by the Copyright Royalty Board in the Webcasting IV proceeding it cranked up last year and is still pending.)

Since these rates and terms have been in existence for almost five years, I’m running out of ways to cleverly remind those engaged in non-interactive webcasting about their filing and payment obligations because, well, nothing has changed.

But even if the underlying substance hasn’t changed, I can still spiff it up with a new presentation, one that might help readers navigate the SoundExchange trails a bit more easily. So as we say an early goodbye to Webcasting III (though we didn’t think so, we may yet miss you!) and look forward (or not) to whatever the CRB may do to us in Webcasting IV, here’s a chart that provides about as stripped down a reminder as you can get of the various SoundExchange options.

Before you test-drive the chart, though, keep a couple of things in mind:

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Dear NFL: Would You Mind if We Registered "Scandal Bowl"?

The biggest scandal this time of the year tends to be the NFL’s heavy-handed efforts to protect trademarks, even those it doesn’t own.

It’s no secret that we here in the CommLawBlog bunker don’t fully approve of the NFL’s aggressive efforts to protect trademarks that the NFL doesn’t happen to own. Who can forget the famous “Who Dat” contretemps in 2010? And how about the NFL’s successful effort to squelch an average Joe’s (actually, an average Roy’s) attempt to register the term “Harbowl” in 2013. (Not that we’re bitter or anything, but it was CommLawBlog, not ESPN, that unearthed that particular tidbit, although you wouldn’t have known that from ESPN’s reporting.) We didn’t see a similar effort last year when somebody tried to register “Bong Bowl”, but that may have been because the applicant pulled the plug on the application before it got on the NFL’s radar.

This year, if anybody’s looking for a catchy alternative name for this year’s Super Bowl®, how about the “Scandal Bowl”? After all, it wasn’t but a few hours after the Patriots beat the Colts that ESPN began reporting that the Pats were being investigated for doctoring the game balls. (We take no credit for uncovering that particular story; credit apparently goes to Station WTHR in Indianapolis, which the ESPN report acknowledged.) Of course, it’s not like this is the first time the Pats have been charged with cheating during the Belichick era (cough, “Spygate”, cough).

And on the other side of the field will be the Seahawks, whose head coach, Pete Carroll, high-tailed it out of Southern California just before penalties were levied against the program he coached at USC.

And how particularly appropriate would “Scandal Bowl” be this year, when the NFL has been awash with serious bad press. (Concussions, anyone? Or how about Messrs. Rice or Peterson or Hernandez, among others?)

So “Scandal Bowl” might make sense like “Bong Bowl” made sense last year (when the two teams happened to be from states that legalized marijuana use.)

I just checked the USPTO and, so far at least, it looks like no one has tried to register “Scandalbowl” or any other combination of “Scandal” and Bowl” as a trademark in conjunction with any goods and services. So, should you do it?

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Proposed MVPD Redefinition Out for Comment

FCC looks to open ranks of MVPDs to Internet-delivered services – a move that could save what’s left of Aereo

It looks like the universe of multichannel video programming distributors (MVPDs) is going to be expanding considerably. Previously populated by the likes of cable, MMDS and broadcast satellite operators, the MVPD universe is set to be redefined to include services “untethered” from any infrastructure-based definition … if, that is, a proposal laid out in a Notice of Proposed Rulemaking (NPRM) last month (and just published in the Federal Register) takes hold. The result should expand consumer options for video program service, and might even revivify whatever may be left of Aereo once Aereo exits the bankruptcy process. And even if Aereo doesn’t survive, we can look for new Aereo-like services.

The proposed redefinition of what it means to be an MVPD is part of the Commission’s overall effort to encourage innovation and serve the “pro-consumer values embodied in MVPD regulation”. It’s also one more reflection of the FCC’s embrace of the technology transition – from old-fashioned, relatively inefficient analog service to digital, Internet protocol (IP) delivery – that is sweeping virtually all aspects of U.S. communications.

The Communications Act defines MVPD as a person (or entity) who “makes available for purchase, by subscribers or customers, multiple channels of video programming.” The Act cites some examples – “cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor” – but makes clear that those are not the only possible MVPDs. So the FCC appears to have some latitude when it comes to filling in the blanks Congress left.

And that’s what it’s now trying to do.

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D.C. Circuit Rebuffs SoundExchange in CRB Appeal of SDARS/PSS Royalty Rates

But Sirius XM, which succeeded before the CRB, may not be happy that its victory was upheld.

When it comes to setting copyright royalty rates, the Copyright Royalty Board (CRB) enjoys considerable leeway. Just ask the U.S. Court of Appeals for the District of Columbia Circuit.

In an across-the-board victory for the CRB, the Court has upheld the CRB’s final 2013 ruling determining royalty rates for the Satellite Digital Audio Radio Service (SDARS, a service with only one operator, Sirius XM) and Pre-existing Subscription Services (PSS) (e.g., the appellant in this case, Music Choice). While the particular rates at issue in the appeal are probably not of much direct interest to most of our readers, a couple of aspects of the Court’s opinion could come into play when the CRB eventually resolves “Webcasting IV”. That’s the proceeding that will establish rates and terms for webcasting by radio stations and other non-interactive services for the years 2016-2020.

First, there’s the question of how the CRB reaches a particular royalty rate. If the affected parties (i.e., service providers and copyright owners) can’t come to mutually agreeable terms, the question goes to the CRB, which conducts a trial-type proceeding. The interested parties propose rates, or rate ranges, and then offer evidence to support their respective proposals. Each side gets to challenge the other’s evidence. In the end, the CRB reviews all the evidence and comes up with rates to apply over the coming five-year term.

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Professional Football Team in Nation's Capital Loses Name, Logo, Colors

A tale of two cities – Washington and Bucharest – and two trademark battles

It’s big news when a storied sports franchise loses its identity. And that’s what’s happened with a prominent professional football team in its nation’s capital, a team with which you’re all doubtless familiar: No, not the Washington, D.C. NFL team, but Steaua (“Star”) Bucharest, the most successful football (or what a small minority of the world refers to as “soccer”) team in Romanian history.

Or should I refer to the team formerly known as “Steaua Bucharest”? More on that below.

You might have thought that I was talking about the Washington, D.C. NFL team with the controversial name. Not today. In fact, the team has just won an indirect victory at the FCC (and trust me, this year the team can use any victory it can get its hands on): the Media Bureau’s Audio Division has dismissed several petitions to deny the license renewals of stations that mentioned the team’s name on the air. The decision is relatively short and sweet and totally right on the money: however offensive the name may be to however many people, there is no basis in the FCC’s rules (or any other law, for that matter) to deny a station’s license because of its use of racial or ethnic epithets. Indeed, as my colleague Steve Lovelady pointed out when the petitions were first filed, the FCC itself has expressly taken that consideration off the table. So stations can continue to play “Hail to the Redskins” without fearing for their next renewal.

All is not so copacetic in Bucharest, however.

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Flo and Eddie Take Their Siriusly Winning Ways to the East Coast

Sirius XM loses on public performance claims for pre-1972 sound recordings … again.

I’ve already written about two lawsuits – both in California – based on infringement claims arising from Sirius XM’s public performance of sound recordings created before February 15, 1972. (You can read those two posts here and here.) In both cases Sirius XM suffered adverse rulings. It remained to be seen, however, whether Sirius XM (and other potential defendants engaged in the digital transmission of “pre-1972” sound recordings) might be in trouble elsewhere.

The answer is (drum roll, please) “YES”.

The plaintiffs in one of the California cases – former Turtles Mark Volman and Howard Kaylan, better known to many by their noms de disque, Flo and Eddie – also sued Sirius XM in New York. And now Judge Colleen McMahon of the U.S. District Court of the Southern District of New York has joined her West Coast colleagues by taking a big step toward granting Flo and Eddie summary judgment on the liability element of their claim against Sirius XM. (If she concludes that summary judgment is the way to go, the case will proceed to a damages phase where a dollar figure can be attached to that liability.)

But Judge McMahon went a bit beyond the California decisions: her opinion may pave the way for judges in other states to hop on the bandwagon more easily, and it may also include a veiled warning for broadcasters as well.

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More on Getting Sued For Playing the Oldies

Sirius XM loses another ruling in California litigation about digital performance of pre-1972 recordings.

As I reported in September, Sirius XM (and, by extension, just about any other provider of streamed digital music) suffered a setback in a Federal District Court in California when the judge there ruled that performers have an exclusive public performance right to music they recorded prior to February 15, 1972. As it turns out, the news got worse for Sirius XM a couple of weeks later, when a California State Superior Court judge came down largely the same way.

As a result, Sirius XM, Pandora and other such services will likely be looking at a lot more liability for infringements as more pre-1972 artists join in the class action suit started by Flo and Eddie in California. While the outcome of the California end of that litigation doesn’t seem to be in much doubt – which is bad news for Sirius XM et al. – the chances of similar outcomes in other states is still up in the air, at least for the moment. Also up in the air: possible Congressional reaction.

For background on the issue of digital performance rights for pre-February, 1972 recordings, check out my earlier post about the Flo and Eddie case.

The more recent case doesn’t involve iconic individuals (like Flo and Eddie) as plaintiffs; it involves iconic record labels as plaintiffs.

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Court Preliminarily Approves TVMLC-SESAC Settlement

Lawsuit begun in 2009 could be wrapped up next March. Check your mailbox for more details.

If you’re a full-power TV licensee, in the near future you can expect to be receiving (or you may already have received) a note from the Television Music License Committee (TVMLC) notifying you that a court has preliminarily approved a settlement the Committee has reached with SESAC. You have the option of objecting to the settlement or opting out of it, but if you do neither you’ll be bound by its terms (unless you happen to be Univision or Telefutura, in which case you’re not part of the Settlement Class).

In any event, this is something you should pay attention to. (Spoiler alert: I generally agree with the TVMLC’s assessment that the settlement is “fair and a good result, providing long-term protection” for television broadcasters.)

The settlement represents the near-culmination of a lawsuit brought by a number of broadcasters and funded by the Committee. In 2009, Meredith Corporation, The E.W. Scripps Company, Scripps Media, Inc. and three Hoak Media companies – “individually and on behalf of all other similarly situated local television stations” – sued SESAC. They alleged various violations of federal antitrust law. (Such allegations have previously been raised by radio broadcasters as well. It will be interesting to see what effect, if any, the TVMLC settlement may have on radio’s lawsuit against SESAC.)

Until 2007 the rates and terms for performance, by TV broadcasters, of musical works in the SESAC catalog had been subject to an industry-wide deal. But that deal expired in 2007 and no extension or replacement deal was cut. So since then broadcasters have been left to negotiate individually with SESAC while the litigation chugged on.

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Just in Time for Halloween: Zombie Aereo!

Preliminary injunction kills Aereo’s “live” retransmissions, but leaves it partly alive and still shuffling

It’s still alive!!!

Given up for dead by many, our old pal Aereo has managed to sidestep the Grim Reaper yet again. (Rule No. 2 in Zombieland: Always double tap.) But just barely, and its future prospects are not good.

We’ve already covered Aereo’s arc from Nothing to Big Deal to, well, whatever it is now that Judge Alison Nathan has enjoined it from doing some, but not all, of the things it was originally set up to do. To recap briefly for newcomers, Aereo marketed itself as a way to watch over-the-air television, live or recorded, through Internet-connected devices. It rolled its new service out in New York in 2012 and was immediately sued by broadcasters who insisted that Aereo’s system infringed on their copyrights. After losing three rounds in the Second Circuit, the broadcasters finally prevailed in the Supreme Court, which concluded that, to the extent Aereo offered effectively real-time retransmission of over-the-air programming, it was indeed infringing. The Supremes then sent the case back down to the trial court (Judge Nathan presiding) to decide what to do with Aereo.

And now we know.

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Petitioner Wants FCC to Ref "Redskins" Debate

Petition against a broadcast license renewal cites offensive nature of “Redskins” name as basis for denial. Should the FCC really be involved with this?

For years there’s been a steady drumbeat for the owners of the Washington, D.C. National Football League team to change the team’s name to something other than “the Redskins”. The contention is that the word “Redskins” is – in the eyes of both American Indians and non-Indians – an offensive ethnic slur. (In response, the team -- which has used that name for more than 80 years – says that it’s a tribute to American Indians' strength and courage, i.e., the antithesis of a slur.)

And now the FCC has been invited to blow the whistle, throw a flag, and rule the use of the term to be a license-ending infraction.

The Redskins-as-ethnic-slur controversy is not new, but it has seemed to gain momentum over the last couple of years, perhaps fueled by aggressive efforts to bring governmental authority to bear. For example, while a number of American Indians have waged an extended battle to get the U.S. Patent and Trademark Office to cancel the team’s registered trademarks, those efforts had been generally unsuccessful until mid-2014.

The response from the Redskins camp has been unequivocal: in a 2013 USA Today interview, the team’s owner, Dan Snyder, said that he will never change the name, adding famously that the interviewer could capitalize the word “NEVER”.

That hasn’t stopped various prominent folks from urging a change.

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New Hope for Old Performance Right Holders

Turtle vets Flo and Eddie walk all over SiriusXM, relying on state law in copyright infringement case. A boost for possible Federal performance right royalties?

The concept of performance rights royalties has been given a limited, but potentially significant, shot in the arm by a Federal judge in California. As a result, the date of February 15, 1972 could become less of a barrier preventing artists who recorded songs prior to that date from demanding royalties for the public performance of their recordings.

This is thanks to two of the Turtles, Howard Kaylan and Mark Volman a/k/a Phlorescent Leech and Eddie a/k/a Flo and Eddie. (Curious about those alternative names? It’s a long story that involves the Mothers of Invention .) They successfully sued SiriusXM Radio for royalties arising from its performance of pre-2/15/72 Turtles tunes.

The court win opens the door for mid-20th Century artists to recover royalties from services like Sirius XM, Pandora – and even, in some instances, broadcasters – for playing their songs. And make no mistake, the number of artists in question is huge, including the Turtles, obviously, but also the Beatles, the Stones, Hendrix, Led Zeppelin, the Beach Boys, the classic Motown acts, etc., etc., to name just a small handful of artists whose works are still on many playlists today, more than 40 years down the road.

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Now Available: Kevin and Harry's Excellent "Whither Aereo" Webinar

If you missed the webinar Kevin Goldberg and Harry Cole presented on the latest twists and turns in the Aereo case (and the prospects for more twists and turns to come), worry not: it, like pretty much everything else, is on the Internet. The folks at Team Lightbulb, who arranged and promoted the webinar, have posted a recording of the show here – all audio and video included. It’s free.

Upcoming Webinar: Whither Aereo? (or should that be "Wither Aereo?")

As we all know, the Supreme Court issued its decision in the Aereo case two months ago – but that wasn’t the end of the matter by any means. The Court’s decision left a number of questions unanswered. And, as has been the case since it burst onto the scene, Aereo is nothing if not creative, which means that, despite its loss in the Supremes, it has not exited the scene by a long shot.

While maybe you took the summer off, our Aereo watchers, Kevin Goldberg and Harry Cole, did not. They’ve been keeping track of the fall-out following the Supreme Court’s decision, and they’re ready to bring you all up to date in a free one-hour webinar on September 10 at 1:00 p.m. (ET).

You can sign up for the webinar here. It’s a Team Lightbulb production.

Performance Royalties: The State of Play

[Blogmeister’s Note: The following post by FHH’s Frank Montero first appeared in Radio Ink Magazine. Our good friends at Radio Ink have given us permission to reprint Frank’s piece here, for which we thank them.]

There is much afoot these days in the world of copyrights and performance rights and royalties. Any radio station owner knows about the license fees collected by ASCAP, BMI, and SESAC, which pay royalties to composers and publishers. Less familiar are royalties collected by performers and the recording industry. For musical recordings, radio stations pay SoundExchange when streaming music over the Internet, but not for over-the-air broadcasts. The logic has been that the recording industry already reaps a huge benefit from having its records played over the air. In fact, traditionally the money stream has flowed in the opposite direction, with radio stations, DJs, and PDs being paid to play recordings on the air. There’s even a name for it: payola.

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Congress Says Unlocking Cell Phones is Okay

You ask: why is this even a question?

Thanks to action by Congress – something we don’t get to say often, these days – it will soon once again be lawful to “unlock” your cell phone so as to use it with a different carrier.

You ask: why is this even a question?

Because of an earlier act of Congress – the Digital Millennium Copyright Act (DMCA), to be specific – whose Section 1201(a)(1)(a) provides that:

[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.

The software in a phone is a “work protected under this title.” The locking software is a “technological measure that effectively controls access” to the phone. So to “circumvent” the software by unlocking it violates the DMCA. Even a first offense, if done “willfully and for purposes of commercial advantage or private financial gain," can draw a fine of up to $500,000 plus up to five years in the federal penitentiary.

The DMCA allows the Librarian of Congress, the official in charge of copyright matters, to make exceptions to the law. And indeed, he used to have an exception on the books that covered cell phone unlocking. Located in 37 C.F.R. § 201.40(b)(3) (2012), it permitted the "circumvention of technological measures that effectively control access to copyrighted work", i.e., "unlocking" of

[c]omputer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. 

Note the requirement that unlocking (“circumvention”) be initiated by the “owner of the copy of the computer program” – i.e., the owner of the software in the phone. That’s you, right? When you’ve bought a phone, haven’t you also bought the software inside it? That’s what a reasonable person might think.

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Music Licensing Study Gets an Encore

Copyright Office seeks more input in proceeding as it considers possible overhaul of the music licensing system.

As readers should know by now, the long-stable music licensing  system may soon be in flux. Nearly every aspect of the licensing process is under scrutiny – even attack – on several fronts, and the possibility of change looms large.

Of course, you’ve got your Congressional hearings, which could lead to changes in the Copyright Act. Then you’ve got the Department of Justice review of the decades-old consent decrees governing ASCAP and BMI (remember, SESAC isn’t subject to a consent decree). And the Copyright Office (CO) is looking not only at those same consent decrees, but also at a much wider range of licensing-related questions.

With so many governmental fingers in the pie, what’s likely to get done? 

A CO Notice of Inquiry requesting more comments in its “Music Licensing Study” may shed some light on that question.

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Aereo Loses First Round in Copyright Office, While Dish Wins its Next Round in the Ninth Circuit

More developments in the realm of Internet retransmission of OTA signals.

Aereo – the gift that keeps on giving, at least when it comes to blogworthy content. As we reported, after it got its clock cleaned at the Supreme Court, Aereo bounced back with Plan B, which amounted to declaring itself (a) a cable system and, thus, (b) eligible for the compulsory copyright license granted to cable systems. But you can’t just say “I’m a cable system” and expect anybody to believe you. So Aereo went ahead with some of the paperwork required of f’real cable operators; among other things, it filed a bunch (14, to be exact) of Statements of Accounts with the U.S. Copyright Office, along with some royalty and fee payments amounting to the princely sum of $5,310.74.

A nice gesture, but wouldn’t you know it, the Copyright Office (CO) was not inclined to play along with the gambit. In a brief letter dated July 16, 2014, the CO let Aereo know that, as far as the CO is concerned, Aereo is not a cable system entitled to the compulsory license. As it turns out, more than a decade ago the CO had concluded that “internet retransmission of broadcast television fall outside the scope” of the compulsory license. That’s bad news for Aereo, whose system is firmly – indeed, exclusively – based on Internet retransmission.

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It's ALIVE!!!! Aereo Lurches Back to Life, Sort of

Trying to make lemonade out of the lemon handed to it by the Supreme Court, Aereo has come up with Plan B.

The best stories never really end when you think they’re going to, do they? There’s always a nifty twist that keeps the plot chugging along.

So we really didn’t expect that the Supreme Court’s decision was the last word in the Aereo case, did we?

And right we were.

After pulling the plug on its service within a couple of days after taking a seeming knock-out punch from the Supreme Court, Aereo has come up with a plan. According to a letter filed by Aereo with Judge Alison Nathan of the U.S. District Court for the Southern District of New York (where the Aereo saga first got our attention back in 2012), Aereo is now a cable company that is entitled – by Congress, thank you very much – to retransmit over-the-air broadcast programming. As long, that is, as Aereo files the necessary “statements of account” and “royalty fees”required of cable systems. And in its letter Aereo advises that it “is proceeding” to file just those items.

Following the adage about making lemonade when handed lemons, Aereo has taken the Supreme Court’s decision and tried to turn it to Aereo’s advantage. Since the Supremes said that Aereo is “highly similar” to a conventional cable company, well then (according to Aereo), Aereo is a cable system and, therefore, “is entitled to a license” under Section 111 of the Copyright Act.

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The Supreme Court's Aereo Decision: What It Says, What It Means

The Supremes have spoken, and now it’s the Swami’s turn.

[Blogmeister’s Note: As we have already reported, the Supreme Court has reversed the Second Circuit in the Aereo case, giving the TV broadcasting industry a major victory. Yes, that’s the result that the Swami, Kevin Goldberg, had predicted. So we asked him to review the two opinions out of the Supremes – Justice Breyer’s majority opinion and Justice Scalia’s dissent – and let us know what he found. Here’s his report – but note that we are dispensing with our routine summary of what Aereo is and how the case got to the Supremes. If you’re just getting to the Aereo party now and don’t know the background, check out our extensive Aereo-related coverage at this link. And if you want to see Kevin talking about Aereo, check out his appearance on LXBN TV.]

As I observed following the April 22 oral argument in Aereo, for the most part the Justices on the Supreme Court can’t really be described as “tech savvy”. Nothing in either the majority or the “dissenting” opinion changes that. (Why the quotes around “dissenting”? We’ll look at that below.)

But the Justices’ seeming unfamiliarity and general discomfort with New Technology may be a good thing. The Court appears to have taken care to limit its Aereo decision to areas with which it is familiar. And it also tried hard to make sure that its decision will not disrupt what it believes it knows about new media such as cloud computing.

Let’s take a look at Breyer’s majority opinion (which was joined in by Chief Justice Roberts and Associate Justices Kennedy, Ginsburg, Sotomayor and Kagan), and then the dissent by Scalia (writing for himself and Justices Thomas and Alito). Then I’ll field some questions that I’ve been frequently asked.

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Aereo Update: Supreme Court Rules for Broadcasters!

The Supreme Court has decided the Aereo case! And the answer is (dramatic drum roll): The Supremes, in a 6-3 vote, have reversed the Second Circuit’s decision – which means that the broadcasters have won this round.

You can read the two opinions (those would be Justice Breyer's majority and Justice Scalia's dissent) here. We are hunkering down here in the CommLawBlog bunker to take a careful look at the opinions, which run to 35 pages in toto; we’ll be posting our analysis once we’ve had a chance to digest it. (In the meantime, feel free to read the inevitable accounts in the Main Stream Media, but don’t take them as gospel. Wait for us to chime in.)

For all of you who were, in anticipation of the decision, engaging in intra-office competitions (in the nature of “pools”, but purely recreational and not amounting in any way to “gambling”), here are some aspects of the decision that may be of interest:

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Aereo in the Supremes: What Are the Odds?

Supreme Court junkies doubtless know that there are, as of June 17, 2014, only 14 cases that have been argued, but not yet decided, by the Supreme Court this term. One of those is the Aereo case which we here in the bunker have been following for the last couple of years.

The Court has announced that it will be handing down opinions on June 19, 23 and 30; there’s also the possibility that it will add more dates, although, obviously, time is fast running out. Since the Supremes traditionally resolve all pending cases before they split every year toward the end of June, we can be reasonably confident that the Aereo decision is on its way, real soon.

But, as Tom Petty cogently observed, the waiting is the hardest part. We are plagued by the near-palpable tension and anxiety produced by the knowledge that a decision is coming, but we just don’t know when.

No worries. We here at CommLawBlog are happy to provide a distraction in the form of seven separate Aereo-related points about which to speculate and prognosticate. We’ve presented them in an attractive one-page format, suitable for printing, distributing and posting prominently. Think of this as a Supreme Court version of your annual Final Four pool – an amicable way to increase camaraderie in the workplace.

We'd be very interested in seeing how our readers come out on these questions -- so please feel free to send us your results through the "comments" option, below. Or you can share them via Twitter (letting us know by using “@commlawblog” and/or “#aereowatch”).

And don’t forget to check back here at CommLawBlog once the decision gets released.

Throwing More Gas on the Music Licensing Fire: DOJ Opens Review of Music Licensing Consent Decrees

Broadcasters feeling the heat as another agency tries to help the music industry 

In its never-ending push-and-pull relationship with the music industry over copyright royalties, the radio industry currently faces assaults on multiple fronts. While the creation of a “performance right” (or, as broadcasters view it, a “performance tax”) appears to have been staved off for another year (according to the NAB), there are plenty of other threats headed the broadcasters’ way.

For example, the radio industry is already subject to a performance right obligation requiring stations to pay recording artists, through SoundExchange, for the digital performance of sound recordings. That burden is almost certain to increase as a result of the “Webcasting IV” proceeding that will set new streaming rates for 2016-2020. Also, the Copyright Office is looking at whether changes to all aspects of music licensing are warranted. And lurking just beyond the horizon we have the “Respect Act” recently introduced in Congress. That would require digital radio services (Pandora, Sirius XM and anyone engaged in webcasting, including broadcasters) to pay royalties for sound recordings created before February 15, 1972. Such recordings are currently covered by most state copyright laws but not by federal law.

Now we can add another potential flashpoint: the Antitrust Division of the Department of Justice has initiated a review of the longstanding ASCAP and BMI Consent Decrees that mandate federal court oversight of the rates paid by radio broadcasters to ASCAP/BMI-repped songwriters/composers.

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Porn Troll Patrol: D.C. Circuit Rules Against "John Doe" Lawsuits

Welcome mat for trolls put out by District Judge Howell in 2011 has now been yanked back by a Circuit panel.

More than four years ago we introduced our readers to the porn troll, a particularly insidious creature who engages in a form of blackmail under the guise of copyright enforcement. Within six months of that introduction, we reported that the trolls were riding high after a couple of significant victories before U.S. District Judge Beryl Howell in Washington, D.C.

What a difference a few years make! Last year we noted that a federal judge in California had swatted down a porn troll collective. [Blogmeister’s note: If you haven’t read Tony Lee’s post about that particular decision, you’re missing a true classic.] And we are now pleased to report that the U.S. Court of Appeals for the D.C. Circuit has reversed one of Judge Howell’s rulings. As a result, the porn troll business has just gotten considerably harder, which is good news.

And, perhaps even more heartening (at least for us lawyers who deplore porn troll practices) is the disdain for trolls that dripped from the court’s opinion.

If you need a refresher on the porn troll business, the D.C. Circuit’s Judge David Tatel has given us an opinion that should be required reading.

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New Technologies Once Again Blurring the Lines of Copyright Law

[Blogmeister’s Note: The following article by Frank Montero appeared in Bloomberg BNA’s Telecommunications Law Resource Center. The folks at Bloomberg BNA have kindly given us permission to reprint it here.]

It seems like copyright law is always trying to catch up with new technology. That’s not a new phenomenon. Take the player piano and the 1908 Supreme Court case of White-Smith Music Publishing Co. v. Apollo Co., in which the high court ruled that manufacturers of music rolls for player pianos did not have to pay royalties to the composers.

The composers were understandably worried that the player piano – then a burgeoning new technology – would make sheet music (and, more importantly, the copyright royalties they earned from the sale of sheet music) obsolete. In response, Congress, in the Copyright Act of 1909, created the compulsory license, allowing anyone to copy a composer’s work without permission as long as they paid a predetermined license fee.

The same scenario is playing out today: New technological developments are outstripping decades-old copyright law, forcing changes in the law, challenging old models, and blurring long-established lines. The traditional “silo” mentality that addressed TV, radio, publishing, recording, cable – and now, the Internet – as separate and distinct areas cabined off from one another is eroding. Record companies are battling radio broadcasters. TV broadcasters are battling cable and satellite companies. Internet audio streamers are battling publishers. Publishers are battling record labels. Internet video streamers are battling Internet service providers.

A principal source of these issues: the Copyright Act’s definition of the “public performance” of copyrighted work.

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They're Heeere! New gTLDs Are Now Available for Registration

Put your thinking caps on, review the ICANN list, and get started – NOW is the time.

We have previously alerted our readers to the impending arrival of new generic Top Level Domains (gTLDs) on the Internet and the opportunities that their arrival will be opening up. And now the time has come – or, at least, it has come for some new domains, with others to be rolling out periodically for the foreseeable future.

Anyone contemplating expansion of their Internet presence into any of the new gTLDs should already be regularly reviewing the website of the Internet Corporation for Assigned Names and Numbers (ICANN). That’s where ICANN lists the opening and closing dates for the various filing periods (e.g., Sunrise, Landrush, etc.) for each new gTLD as it becomes available.

We’ll be keeping an eye on the ICANN list as well, looking for new gTLDs that, in our purely subjective view, might have some particular interest for our readers. When those pop onto our radar screen, we’ll post about them here. This will be an ongoing process. There are still more than 1,500 gTLD applications working their way through the ICANN system, so attention must be paid to periodic developments for months, if not years, to come. 

This post – and the ones to follow – aren’t intended to substitute for readers doing their own research. Far from it. Rather, it’s one way for us to continue to poke, prod, cajole, wheedle, nudge and otherwise encourage folks to devote a bit of their own time and attention to the new gTLD universe and the potential it holds for them. Important disclaimer: We will not be reporting on each and every new gTLD that comes down the pike; rather, just the ones that catch our eye for one reason or another. So any reader looking for the perfect gTLD(s) should not be relying on us here to post all available gTLDs. (And we should probably also remind everybody to take a look at the Disclaimer that applies to all posts here on

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Geofencing, Webcasting and Performance Rights Royalties: How Far Does The Exemption Go?

A radio broadcaster is arguing that geofencing exempts it from performance royalties for webcast songs; Could this lawyered loophole backfire on the industry?

For two years, TV broadcasters have railed against Aereo’s innovative interpretation of the Copyright Act based on what Aereo claims to be technological developments. According to Aereo, its interpretation would relieve Aereo of copyright obligations. Now, in an ironic turn of events, a radio broadcaster is asserting its own innovative interpretation of a separate provision of the Copyright Act, an interpretation that (a) is based on technological developments and (b) would relieve the interpretation’s proponent of copyright obligations.

If this new argument is ultimately endorsed by the courts, it could lead to major changes in webcasting copyright law – including some changes not likely to be welcomed by broadcasters. Those changes could include, at least theoretically, creation of the Performance Right that the broadcast industry has fought for years.

The broadcaster in question is VerStandig Broadcasting (VerStandig), licensee of some FM stations in Virginia. The technological development VerStandig is relying on: geofencing, which permits a webcaster to limit accessibility to its programming based on the physical location of the computers receiving the webcast. Geofencing works by checking the “receiving computer’s IP address, WiFi and GSM access point, GPS coordinates, or some combination against a real world map of those virtual addresses”.

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Aereo Update: Alito Back On The Case

In case you ever wondered whether there’s such a thing as “unrecusal” – and, frankly, we hadn’t – here’s the answer: yes. The Supreme Court has announced that Justice Alito, who had recused himself from any participation in any aspect of the Aereo case (which, we remind you, is set for oral argument next week), is no longer recused. The Supremes aren’t required to explain their recusals and, it appears, the same is true of unrecusals. Whatever the reason, with Alito back on board the full nine-member court is now set to hear the case. That eliminates the possibility of a 4-4 tie among the justices (which would have left the Second Circuit’s decision in place, albeit without any approval by the Court)

Reminder: Aereo Webinar Set for April 16

As we announced several days ago, we’ll be presenting a FREE webinar next Wednesday, April 16 (at 3:00 p.m.), on the Aereo case. The Supreme Court will be hearing arguments in the case on April 22, so our webinar – hosted by Kevin Goldberg and Harry Cole – will provide attendees a comprehensive overview of the history of the Aereo litigation leading up to the Supremes. The webinar is designed to provide background and perspective to help make sense of both the arguments before the Court and the speculation likely to follow the arguments.

While space is limited, we still have some capacity, but it will be filled on a first-come, first-served basis. If you want to get yourself up to speed on All Things Aereo in advance of the Supreme Court argument, here’s your chance. Just click on the “Register Now” button below and sign yourself up.

New gTLD's Are Knocking on the Door - Do You Know What to Do?

Hundreds of new generic Top Level Domains are about to hit the Internet. What do you need to worry about and how can you take advantage of the opportunity?

As we have previously reported, the Internet Corporation for Assigned Names and Numbers (ICANN) has for the past several years been busy readying a new batch of generic Top Level Domains (gTLDs) to unleash on the Internet community. In recent months, 175 new gTLDs – the cognoscenti just call them “the New G’s” – have successfully negotiated ICANN’s exhaustive review process. Soon we can expect to start seeing new domain names ending in “.SOLUTIONS”, or “.PHOTOS”, or “.FLORIST”, among others.

The New G's hold considerable promise but we suspect that many readers may not be fully aware of what the future has in store. To take advantage of the opportunities the New G’s present – and also to avoid potential problems – it’s important to know what could be coming down the line and how best to deal with it when, or preferably before, it gets here.

Let’s first look at the two Big Questions, and then delve into some of the underbrush to help you figure out how best to proceed.

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Free Webinar on Aereo - April 16

Live on the Intertubes: Kevin (“The Swami”) Goldberg and Harry (“The Blogmeister”) Cole, recapping the Aereo story on (almost) the eve of the Supreme Court argument.

Hey, CommLawBlog readers (you know who you are)! Kevin Goldberg (a/k/a/ the Swami) and Harry Cole (a/k/a the Blogmeister) have put up scads of posts here covering the ongoing drama of Aereo vs. the Broadcasters (and its various spin-offs, including Aereo: Los Angeles, better known as Aereokiller vs. the Broadcasters). You’ve been reading their stuff for years – now you can listen to them, too!

Back in December, Kevin speculated that we could be seeing Aereo Armageddon sooner rather than later in the form of a Supreme Court showdown. And sure enough (we don’t call him the Swami for nothing), that showdown is on the Court’s schedule for April 22, when Aereo and its various nemeses are set to face off in an epic oral argument before the Supremes.

The outcome – likely to be decided by the end of June – could have a major impact on the Future of Broadcast Television (as well as other incidentals, like the Future of Cloud Computing). Suffice it to say, we can expect the argument and its aftermath to be big news.

To help make sense of it all before the argument – and to help make sense of the argument once it happens – Kevin and Harry will be presenting a FREE webinar on Wednesday, April 16 at 3:00 p.m. ET to review and explain the legal issues and judicial decisions that have brought Aereo to the Supreme Court. Their goal will be to provide attendees background to help them understand the arguments before – and the ultimate decision of – the Court. They’ll track the legal history from which Aereo emerged, sort out the various different lawsuits that have cropped up across the country, and look at possible outcomes.

You can register to attend the free 75-minute webinar by clicking on the link below. Space is limited and registration is available on a first-come, first-served basis only.

(Messrs. K and H assure the public their production will be second to none . . .)

The Future of Music Licensing?

Major overhaul of all music licensing may be in the offing as Copyright Office opens far-ranging inquiry.

Congress could not have foreseen all of today’s technologies and the myriad ways consumers and others engage with creative works in the digital environment. Perhaps nowhere has the landscape been as significantly altered as in the realm of music.

With that observation nestled in the opening paragraph of a Notice of Inquiry (NOI), the Copyright Office (CO) has kicked off a wide-ranging evaluation of “the effectiveness of existing methods of licensing music”. The CO’s study could eventually have a dramatic impact on the uses and distribution of recorded music in all areas of American business and culture.

The CO’s statement quoted above is certainly accurate (although similar technological changes have transformed the delivery of video programming, too). Think about the changes in recorded music since 1976, when Congress last overhauled the Copyright Act. Where we had vinyl discs (33-1/3 LPs, 45s and maybe even 78s) in 1976, we’ve since run through eight-tracks, cassettes and CDs. And now we can obtain recorded music digitally from MP3 and Internet streaming and MP3s. Where we once received music via broadcast radio, we now have satellite and Internet radio.

Despite these wholesale changes, the process of licensing recorded music has remained largely static for decades. That’s why many music industry participants – including songwriters, recording artists, broadcasters, Internet radio services – agree that revision of the process is long overdue. 

Music licensing is complex. It includes multiple separate and distinct components that may not be immediately apparent to the casual observer. Anyone even tangentially interested in the CO’s study should read the CO’s NOI at least for background purposes. Before we look at the questions the CO has posed, let’s review the various components of music licensing.

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Tenth Circuit to Aereo: That's Right, NOT in this Circuit!

Aereo’s losing streak continues.

Readers will recall that last month a U.S. District Judge in Utah granted broadcasters’ motion for an injunction preventing Aereo from operating in the six states that comprise the Tenth Circuit. Not surprisingly, Aereo appealed that decision to the U.S. Court of Appeals for the Tenth Circuit. Acting on an expedited basis, a three-judge panel from the Circuit has turned Aereo down.

As a result, Aereo is now required to shut down operations in Utah, Colorado, Kansas, New Mexico, Oklahoma and Wyoming at least until the Supreme Court decision on Aereo’s Second Circuit case comes down, likely in late June. And if the Supremes reverse the Second Circuit and hold instead for the broadcasters, Aereo may not be able to crank back up at all.

The Tenth Circuit’s decision denying Aereo relief from the injunction is unexceptional – two pages long, which is par for the course in such orders. But it does underscore a continuing theme running through the extended Aereo/FilmOn X litigation: in reaching its conclusion that Aereo is not likely to succeed on the merits, the three-judge Tenth Circuit panel split 2-1. In other words, there continues to be disagreement among federal judges relative to the merits of the opposing arguments here.

Which, of course, merely heightens the likely drama at the Supreme Court. Stay tuned.

Aereo Update: Supreme Developments

With more than six weeks to go before the April 22 oral argument, the Aereo case in the Supreme Court is in what litigators refer to as the “briefing phase” – the various parties are busy preparing and submitting their written arguments to the Court. The broadcaster-petitioners have already filed their brief; Aereo’s is due shortly.

But newsworthy things are still happening. Indeed, despite the snow storm that shut down Washington, D.C. yesterday, there were two noteworthy developments in the Aereo case.

First and perhaps most important, the U.S. Department of Justice – through its principal appellate mouthpiece, the Solicitor General – weighed in with an amicus brief in support of the broadcaster-petitioners. This is Big News because the DOJ’s opinion tends to be taken very seriously by the Court. And the DOJ’s brief reads like a broadcaster’s dream. (You can read a copy of the brief, posted by, here – props to for tracking this down and getting it up on line so quickly.)

Check out DOJ’s summary of its own argument:

The proper resolution of this dispute is straightforward. Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas . . ., [Aereo] does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals. Rather, [Aereo] operates an integrated systemi.e., a “device or process”—whose functioning depends on its customers’ shared use of common facilities. The fact that as part of that system [Aereo] uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content “to the public.” Like its competitors, [Aereo] therefore must obtain licenses to perform the copyrighted content on which its business relies.

Additionally, anticipating Aereo’s argument that a decision in favor of the broadcasters here would seriously hamper the development of innovative new technologies (including, e.g., cloud computing services), the DOJ assures the Court that that is not the case:

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Utah Judge to Aereo: Not in this Circuit!

As Supreme Court decision approaches, a U.S. District Judge in Utah has enjoined Aereo from rolling out its service in the Tenth Circuit.

Ten days ago we suggested that Aereo aficionados who can’t wait for the Big Show in the Supreme Court (oral argument April 22, decision likely before the end of June) might want to take a look at the U.S. District Court in Utah. That’s where the latest of the broadcasters’ copyright infringement suits brought against Aereo has been poking along.

And looky here. U.S. District Judge Dale Kimball has granted the broadcasters’ motion for a preliminary injunction! This marks the first time that Aereo has been on the wrong end of an injunction ruling; it should send a clear signal to one and all that Aereo may be in for some rough sledding ahead.

Judge Kimball’s decision reads like it was written by the broadcasters. Some sample bits and pieces: 

“The plain language of the 1976 Copyright Act support[s] Plaintiffs’ position.”

“Aereo’s retransmission of Plaintiffs’ copyrighted programs is indistinguishable from a cable company and falls squarely within the language of the Transmit Clause.”

There is “no basis in the language of the Transmit Clause or the relevant legislative history suggesting that technical details take precedence over functionality. In fact, such a focus runs contrary to the clear legislative history.”

And the bottom line?

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In the Supreme Court: Aereo Argument Date Set

It’s official. The big day is April 22, 2014. That’s when the Supreme Court will hear oral argument in the Aereo case. From the calendar released by the Court, it looks like the argument will be the second of two on the card – but that’s subject to change. If you’re planning on attending the argument, expect to get to the Court early in the morning, stand in line for a long time, and probably sit through a case you know nothing about

Or you could just make a point of checking in with us for our post-argument take on things.

While predicting the final result in a case based on oral argument is an unreliable (at best) exercise, the exchanges between the Justices and counsel for the various parties invariably lend themselves to beaucoup speculation. And we here at CommLawBlog plan to be speculating with the rest of the crowd. The difference? We’ll have Swami Kevin Goldberg – no stranger to this kind of this – and his pal the Blogmeister (Harry Cole) doing the heavy lifting for us. Kevin and Harry are planning to attend the argument and to share their observations with our readers promptly thereafter. Stay tuned.

Aereo Update: Side Action in Utah

The Swami weighs in.

[Blogmeister’s Note: If you’ve got the Heartbreak of ALA (that would be Aereo Litigation Addiction) and you’re jonesin’ for some action while you’re waiting for the Big Showdown at the Supreme Court later the spring, you’re in luck. On February 11, the U.S. District Court in Utah is going to be holding a hearing on (a) the broadcasters’ motions for preliminary injunction (here and here) and (b) Aereo’s motion to move the case out of Utah and back to the more Aereo-friendly Southern District of New York. Aereo has also filed a separate motion asking the trial judge to put the Utah case on hold until the Supreme Court acts on the Second Circuit case. The Utah court took that last motion under advisement on February 7.

There are obviously a number of moving parts here, so we called in the Swami for his thoughts on how this might shake out. Here’s his take on the various items on the table – the Aereo transfer motion, the Aereo motion to stay proceedings and the broadcasters’ motions for a preliminary injunction.]

This is pretty hard to put odds on. 

Out of the three pending requests, the easiest to handicap is Aereo’s motion to move the case back the Southern District of New York, which I believe will be denied.  Aereo tried the same thing in its Massachusetts case, where Judge Nathaniel Gorton denied the motion. I think the same will happen here. Depending on what eventually shakes out in the Supreme Court, moving all Aereo-related cases to a single court might make sense someday, but certainly not just now. Look for this case to stay in Utah for the foreseeable future.

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Gold Medal Post - Category: Olympic Trademarks

The Swami shoots and scores!

Oh, I nailed that one. A 6.0 (well, 5.9 from the East German Judge, if there were still an East Germany). 

I’m referring, of course, to my post last month about the use of the trademarked term “Super Bowl®” in ads about events or promotions around that Big Game.

No, I'm not crowing about my Super Bowl® prediction (Broncos 37, Seahawks 24), which I’m man enough to admit I completely missed. And don’t worry, I’ve heard about it from family, friends, acquaintances and random “well-wishers” from the Pacific Northwest. But I gave readers fair warning that I’m no NFL expert. (The World Cup®, on the other hand . . .)

I am, however, pleased that my track record on trademark issues far exceeds my (American) football prediction skills. And you can take this to the bank: I was right on the mark in noting that, when it comes to trademark-related issues (which abound in connection with the Super Bowl®), you need to be aware of similar issues surrounding other similar terms, like “March Madness®”, “World Cup®” and “Olympics®”.

It’s the last of those that triggers my reminder to you today, when the 2014 Winter Olympic Games officially kick off in Sochi.  And if you don’t believe me that a reminder is in order, would you believe the U.S. government if it told you the same thing? (You, over there, wearing the tinfoil hat, you don’t have to respond.) 

Sure enough, earlier this week the United States Patent and Trademark Office tweeted this friendly message:

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Aereo Update: And the Question is . . .

The Supremes opt to use the broadcasters’ formulation of the question to be resolved by the Court.

OK, all you Supreme Court tea leaf readers, you’ve got another leaf to read in the Aereo case. According to the Supreme Court’s website, the “question presented” that the Court has decided to use as the focus for briefing in that case is this:

A copyright holder possesses the exclusive right “to perform the copyrighted work publicly.” 17 U.S.C. §106(4). In the Copyright Act of 1976, Congress defined the phrase “[t]o perform ... ‘publicly’” to include, among other things, “to transmit or otherwise communicate a performance or display of the work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. §101.

Congress enacted that provision with the express intent to bring within the scope of the public-performance right services that retransmit over-the-air television broadcasts to the public. Respondent Aereo offers just such a service. Aereo captures over-the-air television broadcasts and, without obtaining authorization from or compensating anyone, retransmits that programming to tens of thousands of members of the public over the Internet for a profit. According to the Second Circuit, because Aereo sends each of its subscribers an individualized transmission of a performance from a unique copy of each copyrighted program, it is not transmitting performances "to the public," but rather is engaged in tens of thousands of “private” performances to paying strangers.

The question presented is:

Whether a company "publicly performs" a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.

That’s possibly good news for broadcasters, because that’s the way that they perceived the question that the Court should be addressing. 

By contrast, when it advised the Court that it wouldn’t mind if the Court agreed to review the Second Circuit’s Aereo decisions, Aereo said that the appropriate question should be:

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Update: Comment Deadlines Set in Sports Blackout Proceeding

Late last year we reported on a Notice of Proposed Rulemaking (NPRM) casting considerable doubt on the future prospects of the sports blackout rule. The NPRM has made it into the Federal Register, so we now know the deadlines for comments and replies. If you want to toss your two cents’ worth in on the issues raised in the NPRM, you’ve got until February 24, 2014 to file comments and March 25 to file replies. You can do so by surfing over to the FCC’s ECFS electronic filing site and submitting them in Proceeding Number 12-3.

The Bong Bowl, the Super Bowl® and Mr. Joel Rodgers

Our annual reminder about NFL trademark enforcement

This year’s Roy Fox “I Coulda Been Somebody” Award goes to (drum roll, please) – Joel Douglas Rodgers of Tampa, Florida.  Our readers will recall that, last year about this time, I reported that one Roy Fox had applied for a trademark registration covering the mark “Harbowl”, a mark which – had he obtained it – could have been a gold mine for him once the teams for last year’s Super Bowl® were set.  (I’m still waiting for ESPN to call to apologize for not giving me and CommLawBlog our due credit for breaking the story.) Both of last year’s teams – the Niners and the Ravens, for those of you with short-term memory about such things – were coached by gentlemen named Harbaugh, so the desirability and commercial potential of “Harbowl” was obvious.

Also as I reported, though, the NFL made a bunch of threatening noise about Mr. Fox’s application and thereby convinced him to abandon it.  My point was to remind one and all that the NFL is super-aggressive when it comes to asserting control over anything that could conceivably be related to the Super Bowl®.  (Don’t forget that R-in-a-circle!)  Because of the NFL’s strong-arm approach, we annually warn folks to avoid using the term “Super Bowl®” in any way that might likely create an impression that their product or event is authorized or endorsed by the NFL.  (Check out a collection of our Big Game-related posts here.)

So who is Joel Douglas Rodgers?

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Annual Webcaster Wake-Up Call! SoundExchange Reports and Payments Due Soon

If you’re a webcaster, you’ve got until January 31 to wrap up your annual SoundExchange homework.

Webcasters take note: like last year, and the year before that – in fact, like every year starting back in 2009 – the annual January 31 SoundExchange deadline is once again looming.

This should not be news to anybody. We’ve provided an annual reminder about the deadline and all that it entails since 2009. And yet, every year, some webcasters don’t pay attention and miss the filing date. As a result, they may lose the ability to claim the “small broadcaster” or “noncommercial microcaster” status that reduces their obligations for the rest of the year. Worse, they could open themselves up to a very sharply worded letter from SoundExchange advising of potentially significant monetary penalties. Sure, those penalties may not reach the worst-case scenario ($150K per copyrighted work), but they will almost certainly exceed by a long shot what it would cost simply to comply with filing requirements on time.

So this year, let’s try not to be the guy who sleeps through the deadline.

The chores should be old hat to anyone who’s been webcasting for more than a year.

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Aereo: Supreme Court Bound!

Broadcasters' cert petition is granted; Alito recuses himself, Kagan doesn't

The Supreme Court has decided that now would be a good time to consider the arguments arising from the Second Circuit’s Aereo decisions to date – so the Supremes have granted the petition for certiorari filed by the broadcaster parties to the Second Circuit case. While this could ordinarily bode well for the broadcasters – after all, if the Supreme Court thought the Second Circuit got it right, they could just deny cert and let the Second Circuit’s action stand – you can probably expect Aereo to claim something of a victory here because, as we have previously reported, Aereo itself urged the Court to take the case.

As of this writing the briefing and argument schedules haven’t been posted on the Supreme Court’s website. Since the Court will be hearing arguments until the end of April, it seems reasonably likely that the Aereo case will be briefed and argued this term, which would mean that a decision from the Court by the end of June would be a near certainty. 

From the scant information that is currently available, it’s impossible to say how the Court is likely to rule. There are, however, two interesting tidbits that may or may not come into play down the line.

First, Justice Alito recused himself from consideration of the cert petition. As is customary, no reason for his recusal was given, nor did the Court’s order disclose whether he would be recused from the merits end of the case – although recusal there would seem more than likely. If he’s out, that would reduce the number of justices hearing the case to eight, giving rise to the possibility of a 4-4 split. In that case the decision of the lower court – i.e., the Second Circuit’s order upholding the denial of a preliminary injunction against Aereo – would remain in place.

Second, Justice Kagan did not recuse herself.

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Dan Kirkpatrick . . . Online and Shedding More Light on the Blackout

Who knew that the sports blackout question – a relatively esoteric and seldom-visited area of communications law – would catch the public’s attention? That’s probably what happens when three of four NFL playoff games are threatened with local blackouts. (Of course, the reason Lambeau Field wasn’t going to sell out 72 hours before a Pack post-season appearance could have something to do with the fact that, by the time the ref’s lips freeze to his whistle when he blows the two-minute warning in this Sunday's wild card game, the temperature at Lambeau is projected to feel like -25°). While large last-minute corporate ticket purchases and an NFL extension of the deadline appear to have prevented any blackouts for this weekend, the threat certainly drew a lot of attention to some frequently overlooked NFL and FCC rules.

But you already knew about the sports blackout rule because you saw Dan Kirkpatrick’s post about it here. And now’s your chance to see Dan expound further on the subject, including some discussion of pending legislation intended to address the blackout problem more directly than the FCC’s rulemaking processing. In a follow-up to his post, Dan was interviewed by Colin O’Keefe for LXBN TV, a cool service from our friends at LexBlog, the blogging platform that hosts CommLawBlog. Just click on the video below.

CRB Opens the Door on Web IV: The Future of Webcasting Royalty Rates for 2016-2020 Starts Now

CRB notice suggests possible shift in royalty rate calculation method, replacing per-performance mechanism with percentage-of-revenue approach.

The Copyright Royalty Board (CRB) has started on its quinquennial chore of establishing copyright royalty rates applicable to various non-interactive webcasters.  While the to-be-determined rates won’t kick in for another two years – they will apply to the period January 1, 2016-December 31, 2020 – the CRB is required by Congress to get the ball rolling by January 5, 2014, and the CRB has gotten itself in under the wire with a notice in the January 3 Federal Register inviting public participation in a new proceeding (dubbed “Web IV” by the CRB).

Web IV will set the rates for eligible nonsubscription and new subscription services (most of our readers, including just about all broadcasters engaged in webcasting, fall into the former).  And while the rate structure currently in place for the 2011-2015 term has been relatively complaint- and controversy-free, the CRB’s notice suggests that the CRB may be looking to take rate calculations in a different direction.  Rather than simply hit “repeat” and stick with the per-performance basis for rates all players have lived with for more than five years already, the CRB appears to have a percentage-of-revenue model in mind. At least that’s one possible reading of the questions laid out for comment by the CRB.

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RMLC v. SESAC 2014: Nothing Changes on (This) New Year's Day

SESAC dodges injunction, can raise rates for 2014 – but Magistrate Judge’s decision bodes well for RMLC’s odds on the merits of its antitrust case

The New Year.

A time for reflection and looking forward. When some give thanks for the blessings they have been given and others look to make a clean start. 

In the world of contracts, it’s an important time, as many annual agreements renew, often with previously-specified modifications automatically kicking in.

Which brings us to the Radio Music License Committee (RMLC) and its effort to stop SESAC from jacking up its 2014 royalty rates for radio licensees. While, as we shall see, that effort was unsuccessful (at least for the time being), there is some cause for optimism with respect to RMLC’s long-term chances of bringing SESAC under the same type of judicial control as ASCAP and BMI are subject to.

SESAC, ASCAP and BMI, of course, are the three major performing rights organizations (PROs), i.e., organizations which represent song composers and to which broadcasters must pay royalties for the right to perform the musical works of SESAC-affiliated composers over the air and online.

In late 2012 the RMLC sued SESAC, alleging violations of federal antitrust laws. I wrote about the lawsuit when it was filed. The RMLC asking the court to rein in SESAC under a consent decree – similar to decrees to which ASCAP and BMI are already subject – which would require SESAC’s activities to be reviewed and approved by a federal court.

As litigation often does, RMLC’s lawsuit has ground on at a seeming snail’s pace. But as 2014 approached and an anticipated increase in SESAC’s rates loomed, RMLC sought a preliminary injunction barring such an increase until the suit was resolved. In a December 23 report and recommendation, U.S. Magistrate Judge Lynne Sitarski rebuffed RMLC, but in so doing also gave it hope that, even though RMLC may have lost this battle, it stands a reasonable chance of winning the war.

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Aereo Cert Day - January 13, 2014?

Supreme Court docket listing suggests decision on whether or not to take the Aereo case is imminent.

OK, it’s obviously way too early for your office’s Final Four pool or even the Super Bowl® pool, but no problem: the time is just right for organizing an Aereo Cert pool!

Will the Supreme Court agree to hear the broadcasters’ appeal of the Second Circuit’s denial of their efforts to put a temporary kibosh on Aereo’s operations in the Big Apple or not?  According to the Supremes’ docket listings, that question is currently scheduled to be considered by the Justices in their closed-door conference on January 10, 2014 – which means that it’s très très likely that we’ll find out the answer mid-morning on January 13 (the next day on which the Court will be sitting).  So get that pool started because time is short!

Regular readers will recall that, when last we left the Second Circuit phase of the Aereo saga, broadcasters had tried three separate times – first before the presiding U.S. District Judge, then before a three-judge panel of the Second Circuit, and finally before the Second Circuit en banc – to get Aereo shut down at least until their copyright infringement lawsuit against it can be completed.  The broadcasters got nowhere in any of those three fora.

You might think that, having whiffed three times, the broadcasters would be out – but they had one more chance: the Supreme Court.

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Sports Blackout Rules on the Ropes?

FCC proposes to eliminate rules designed primarily to enforce NFL blackout decisions.

Looks like the clock is running out for the sports blackout rules.

In a Notice of Proposed Rulemaking (NPRM) the FCC has proposed their elimination, although the NFL, MLB, NAB and a number of network TV affiliates appear poised to mount a late-game defensive surge to try to save them. The outlook for the rules, however, isn’t brilliant.

The sports blackout rules as they currently stand generally prohibit certain multichannel video program distributors (MVPDs – think cable systems, broadcast satellite services, open video systems) from carrying, within a protected geographical area, a live sporting event not available live on a local over-the-air (OTA) TV station in that area. You can find the rules themselves in Sections 76.111 (cable operators), 76.127 (satellite providers), 76.128 (application of sports blackout rules), 76.1506(m) (open video systems) of the FCC’s rules. Importantly, the rules themselves are not the source of sports blackouts; rather, the respective professional leagues determine the availability of OTA game broadcasts. The FCC’s rules effectively impose league-initiated blackouts across the various MVPD services.

The blackout rules developed in a piecemeal fashion over the course of more than 50 years. Initially applicable to broadcast stations only (since the other video services didn’t exist in the early 1960s), they were gradually expanded and tweaked as necessary to apply to the various MVPD services as those services came online and were embraced by the viewing public.

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Aereo Armageddon Ahead?

Warring parties agree on one thing: the Supreme Court should intervene ASAP – but will the Supremes agree to take the case now?

The Aereo War rages on, fought (like most wars) on several fronts, but always with an eye toward that epic battle destined to change the face of the conflict entirely. Yorktown. Waterloo. Gettysburg. Normandy.

Possibly soon to be added to that list: Washington, likely site of the Aereo Armageddon. More specifically, One First Street, N.E. – where the U.S. Supreme Court sits.

And it could happen sooner than many expected. That’s because the major broadcast networks, having lost their bids to shut Aereo down in New York and Boston, have sought Supreme Court review of the New York decision. And, in an interesting gambit, Aereo has taken the unusual step of agreeing with its adversaries. Aereo says that the Supreme Court should take the case. While that is no guarantee that the Court will agree that the issues are now ripe for resolution at the highest level, such unanimity among the parties certainly doesn’t hurt.

Before we get ahead of ourselves, a bit of history.

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Upcoming Webinar: Goldberg on Aereo

Aereo on the agenda: Where it’s been, where it’s going, where it’s taking the rest of us

If you’re interested in the ongoing Aereo saga – and the impact that it’s likely to have on communications law, copyright law and the video delivery business in general – check this out. FHH guru Kevin Goldberg (regular CommLawBlog readers may know him as “the Swami”) will be sharing his Aereo expertise in a webinar on January 16, 2014. Titled “Will Aereo Case Force a Rewrite of Communications and Copyright Laws?”, the gig is billed as a webinar for folks who advise communications and broadcasting companies, professionals involved in media ownership and regulation and intellectual property practitioners. It may even qualify for continuing legal education in some jurisdictions. Such a deal! The 90-minute affair, which is scheduled to start at 1:00 p.m., is sponsored by Bloomberg BNA.  Consult the registration page for information about admission fees (there are a couple of options), CLE details, other webinar panelists and the like.

Patent and Trademark Applications: File 'Em if You've Got 'Em

United States Patent and Trademark Office Using Reserve Funds to Stay Open for the Time Being 

We've already talked about how the Government Shutdown is going to affect the Federal Communications Commission.  Of course, the Commission isn't actually the center of the universe (it sometimes just seems that way).  While most of our work is focused on the FCC, we also interact with other agencies and offices of the federal government on our clients' behalf from time to time. 

With that in mind, we'll update you as we receive important information on the status of their operations during the shutdown. 

Today:  the United States Patent and Trademark Office (hint:  it's open for business...for now).

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AereoKiller Cuffed Nationwide

U.S. District Judge in D.C. enjoins Aereo-like service everywhere but the Second Circuit.

Score a big one for the broadcasters! A federal district judge in the District of Columbia has enjoined FilmOn X (that would be the folks formerly known as “Aereokiller” who operated at “”) from operating its dime-sized wannabe-MVPD service, much like a judge did in Los Angeles late last year.

But get this – the D.C. judge went way further than the L.A. judge by extending the injunction NATIONWIDE (except for New York, Vermont and Connecticut).

To say that this complicates matters in the overall Aereo/Aereokiller universe would be an understatement.

First things first. The latest decision was issued by Judge Rosemary M. Collyer, of the U.S. District Court for the District of Columbia. FilmOn X had cranked up its service in the D.C. area last spring, which prompted D.C. broadcasters to ask the D.C. federal court to shut it down – essentially the same scenario that had already played out in New York (with Aereo’s similar service) and L.A. (where FilmOn X, but not Aereo, was the defendant). As our readers already know, the Second Circuit judges in NYC declined to enjoin Aereo’s operation, but a U.S District Judge in the Ninth Circuit in L.A. did enjoin FilmOn X. (We’re still awaiting a decision from the three-judge panel of the Ninth Circuit reviewing that latter decision.)

Both the NYC and L.A. decisions were based on the same facts and underlying precedent presented to Judge Collyer, so she had two flatly inconsistent model approaches (in her words, “a binary choice”) that she could use as guidance. She opted to go West Coast, but with a couple of twists.

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Aereokiller in the Ninth Circuit

May it please the court? Maybe, maybe not. YOU be the judge.

Even those practiced in the art of appellate advocacy have trouble correctly guessing, on the basis of oral arguments, how a court will ultimately rule. (Doubt that? Just ask the Swami.)

The post-argument guessing game is particularly hard for the Great Unwashed because appellate arguments tend to be somewhat intimate affairs, not widely publicized beforehand, seldom recorded for extensive public consumption. Any press accounts of arguments tend to shed only limited light on precisely what was said, making it hard for the reader to draw any conclusions.

But things are different in the U.S. Court of Appeals for the Ninth Circuit which, as it turns out, posts audio recordings of its arguments on its website within 24 hours of each argument. Who knew?

So if you’ve got about 45 minutes and want to try to figure out what’s going to happen next in the Aereokiller case, click on this link. (Note: Aereokiller has since re-named itself FilmOn X, even though it’ll always be Aereokiller to us.) Clicking on that link will allow you to download and open the recording of the August 27 oral argument before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (sitting in Pasadena).  See if you can figure which way the court’s going to go.

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Ninth Circuit Tosses Fox into the Hopper . . . For Now

At first blush, the Ninth Circuit decision allowing Dish to continue to offer its “Hopper” service may not look great for broadcasters, but don’t hop to any conclusions just yet.

The TV industry has suffered some setbacks on the copyright front in the Aereo litigation in the Second Circuit and, as we have reported, the industry is keeping its fingers crossed, hoping for support from the Ninth Circuit on the Left Coast (in the pending Aereokiller appeal).

Bad news. In an unrelated case the Ninth Circuit has issued a decision that doesn’t help broadcasters although, much like the Aereo decisions so far, the damage here is by no means catastrophic.

The decision involves the “Hopper” from Dish. 

You may be familiar with the Hopper from its truly annoying commercials. It’s the Dish satellite service’s home DVR system, which includes a feature called “PrimeTime Anytime” (PTA). PTA allows a subscriber to record any and all primetime programming on any of the four major broadcast networks every night of the week. The PTA service defaults to recording all the programming, which (again by default) it saves on the user’s DVR for eight days (although the subscriber can modify these defaults).

As with most (if not all) other DVR systems, the user can start watching PTA-recorded programming right away, but if they can wait until the next morning, they can take advantage of the Hopper’s main selling point: the ability to “AutoHop” over commercials, skipping them entirely, automatically. No need to fast forward through commercials – Dish has taken care of that for you.

The prospect of automatic ad-skipping technology is obviously not something that commercial broadcasters – whose existence depends on the ads being skipped – cotton to.

Enter Fox Broadcasting Company. 

The network that first introduced the world to 21 Jump Street filed suit in the U.S. District Court for the Central District of California, trying to ground the Hopper. Since that’s the same court that has preliminarily enjoined Aereokiller (now known as, you might think that the chances would be good for Fox to Arrest the Development of the Hopper technology. 

Not so fast.

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Mission Abstract Data Update: Broadcasters Eager to Have Digimedia Bring It On

As we reported earlier this week, Digimedia (f/k/a Mission Abstract Data) had asked the judge presiding over its Delaware patent infringement case against a number of broadcasters to lift the longstanding stay on that case. The judge in turn asked the broadcasters to respond to that request. The broadcasters have now done so . . .  and we figured our readers would be interested in seeing what they had to say. Here it is.

Essentially, the broadcasters seem eager to get the case moving, too – because they apparently figure that the USPTO’s actions, and the passage of time, have largely gutted Digimedia’s case. The letter lays out a reasonably clear path forward – a path which takes the broadcast defendants directly to No-Liability-Ville. Of course, whether the case eventually follows that path remains to be seen but, as we ourselves (who aren’t patent lawyers, mind you) mentioned in our post last March, the mere fact that Digimedia may have obtained some kind of ruling from the USPTO does not necessarily mean that Digimedia can or will prevail in its lawsuit. There are still plenty of questions to be answered, and the broadcasters’ letter suggests that the answers aren’t likely to be helpful to Digimedia.

We’ll try to keep you updated as developments warrant. In the meantime, we remind any of our readers who may have been approached by Digimedia to be sure to run all this past knowledgeable patent counsel before deciding how to proceed.

Mission Abstract Data Update: Queen Sacrifice or Path to Broadcaster Checkmate?

Movement on the USPTO front, but will Digimedia actually benefit or is this a last gasp effort in the long-lasting patent chess match?

Today’s metaphor is chess – more specifically, the queen sacrifice, a strategy in which a player gives up a strong piece in the hope of gaining some compensating tactical advantage. What does this have to do with the long-running patent infringement lawsuit being pressed by Digimedia (formerly known as Mission Abstract Data) against a number of prominent radio broadcast groups, or with Digimedia’s related efforts to convince other broadcasters into signing licensing agreements? 

Digimedia may have made its own queen sacrifice . . . or it may just be bluffing to stall for time.

When last we checked in on the Digimedia situation last March, the United States Patent and Trademark Office (USPTO) had issued a Notice of Intent to Issue Reexamination Certificate (NIRC) effectively affirming the patentability of some, but not all, elements of Digimedia’s Patent No. 5,809,246 (the 246 Patent) and a “final rejection” relative to at least some aspects of Patent No. 5,629,867 (the 867 Patent). Lately you may have read that the USPTO on July 8 issued a further NIRC affirming the patentability of some, but not all, elements of the 867 Patent, too. This latest action follows a second reexamination proceeding regarding the 867 Patent.

Sounds like the tide has turned in Digimedia’s favor, doesn’t it? Certainly a number of press accounts have suggested that the USPTO’s latest decision is a blow to broadcasters and a victory for Digimedia. 

We’re not so sure.

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Aereo Update: Second Circuit Nixes En Banc Review

Procedural rejection does not resolve merits of broadcasters’ case.

Put another one in the “W” column for Aereo. The Second Circuit has denied the petition for en banc review filed by the broadcast plaintiffs last April. 

It may be some comfort to the broadcasters that the Court’s decision technically did not address the merits of the case. That’s because of the nature of en banc procedures. As we previously summarized that process, when a petition for en banc review is filed, the petition is circulated to all the active judges on the Circuit. If any of them asks for a vote to be taken on whether or not to grant en banc review, then all the active judges are polled. Note that they’re not polled on the bottom line substantive issue(s) involved; rather, they’re just polled on the limited question of whether the Court should agree to let the parties slug it out before the full Court.

In this case, one active judge (we’re guessing that was probably Judge Chin) did ask for a vote, and the bottom line was 10-2 in favor of not reviewing the earlier panel decision. So there will be no en banc review.

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Porn Troll Wars: The Umpire Strikes Back!

[Blogmeister’s Note: We haven’t heard much about porn copyright trolls in a couple of years, but a recent decision by a federal judge in California caught our eye. The judge slammed a troll operation, and he did it with flair – his opinion opens with a quote from a Star Trek movie (“The Wrath of Khan”) and proceeds to riff off the Star Trek theme throughout its 11 pages. Our colleague Tony Lee volunteered to report on the decision because – or so we thought – he had been involved with porn copyright trolls in the past (defending against them, he assures us). What he didn’t tell us is that he is a major league Star Trek fan. The result: the following homage to both Star Trek and the federal judge who mind-melded with the Trekker universe. Tony has graciously prepared a separate, annotated version of his post – accessible here – for anyone who might be interested. And yes, we know that the title of this piece conjures Star Wars, not Star Trek – it’s the best the headline-writing department here at could come up with.]

In Star Trek-infused opinion, a federal judge beams copyright trolls to Planet Loser.

In a decision chock-full of Star Trek references, U.S. District Judge Otis D. Wright, II has levied planet-wasting (or at a minimum, career-ruining) sanctions against a collective of porn copyright trolls looking to assimilate the pocketbooks of alleged porn downloaders. 

The trolls incurred the Wrath of Wright by weaving a complicated Tholian web of deceit using the court as an unwitting but crucial element of their nefarious scheme. As the Judge put it: “[W]hen the Court realized [the trolls had] engaged their cloak of shell companies and fraud, . . . the Court went to battlestations.”

Before delving into the hull-breaching sanctions resulting from the Judge’s full volley of photon torpedoes, a little background. 

The case began as porn troll cases generally do.

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Bungled Bundle Bill? McCain Introduces the "Television Consumer Freedom Act"

Proposed law looks to address multiple aspects of TV in the MVPD era, including bundling, broadcast abandonment and blackouts.

True to his reputation as a maverick, Arizona Senator John McCain has authored a bill seemingly designed to please nobody, while arguably disserving just about everybody. Dubbed the “Television Consumer Freedom Act of 2013”, it consists of clumsily crafted legislative language that mashes together in one bill three disparate and contentious aspects of the current video delivery system. In only one of those three areas does McCain’s proposal come to remotely practical terms with the problem it seeks to address.

McCain’s bill aims to: (1) promote “a la carte” program availability for MVPD subscribers; (2) discourage broadcasters from removing their programming from over-the-air availability (in response to the success that Aereo has recently enjoyed); and (3) eliminate broadcast blackouts of sports coverage in certain situations.

Promoting “A la Carte” MVPD offerings

McCain has long been an advocate of an a la carte approach to program availability. Under that approach, cable and satellite TV subscribers would be able to sign up for only those channels they want to watch – no more required “bundles” or “tiers”, i.e., packages of channels including some really desirable choices and a bunch of others that probably won’t be watched much, if at all. 

The practice of “bundling”, of course, is not unique to the MVPD operator/MVPD subscriber relationship.

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The Swami gets McBURNeyed by the Supremes

Thoughtful prediction of 6-3 vote for petitioners proves wrong, big time, as 9-0 Court upholds Virginia citizens-only FOIA provision.

[Blogmeister’s Note: Paging Dr. Heimlich! A couple of months ago, our Supreme Court Haruspicator Extraordinaire, the Swami (a/k/a Kevin Goldberg) confidently predicted that the petitioners in McBurney v. Young would win, 6-3, in the Supreme Court. That’s the case involving a constitutional challenge to Virginia’s FOIA law, which is available only to Virginia citizens.  The decision is now out and, oops, the Court went 9-0 the other way. When we were finally able to track the Swami down for a follow-up post on the decision, his initial response was to send us a tear-stained resignation letter expressing his sense of commitment, his pride, his dedication to process, etc., etc. Upon closer examination, however, the letter turned out to be a transparent semi-plagiarism of Richard Nixon’s 1974 resignation speech. We talked the Swami off the ledge, leaned on him a bit, and he has now provided the following take on the Court’s decision.]

Yep, I was wrong, but seriously, nobody – and I mean NOBODY – saw this coming. Sure, plenty of folks might have thought the Court would uphold the law. But none of them would have put their own hard-earned money on a 9-0 verdict.  Not even the most accommodating bookie would have given odds on a unanimous verdict in this one.  And even knowing the final result, I stand by my earlier words that “Justices Ginsburg, Sotomayor and Kagan seemed clearly to favor Messrs. McBurney and Hurlbert”. 

So I’m shocked – not only by the result, or the Court’s unanimity, but by the overwhelming and radical antipathy toward open records laws expressed by the entire Court through Justice Alito’s pen. And I’m angry at the Court’s liberal block for signing onto that position (more on that below).

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Aereo Update: Next Stop, En Banc?

Broadcasters ask full Second Circuit to review panel’s decision allowing Aereo to continue to operate pending trial of infringement claim

We told you the Aereo saga wasn’t over. 

Having lost the most recent (but certainly not the last) round in their litigation war with Aereo, the broadcast plaintiffs have filed a “petition for rehearing en banc” with the U.S. Court of Appeals for the Second Circuit. In that petition, the broadcasters are asking the full 13-member court to review the 2-1 decision of a three-judge panel that affirmed a lower court ruling allowing Aereo to continue to operate while the trial of the case moves ahead.

[Before we get into the nitty-gritty of the petition, let’s take a brief introductory side trip into the world of appellate procedure. Each of the 13 federal courts of appeals consists of between six (in the First Circuit, covering New England) and 29 (in the Ninth Circuit, which sprawls across nine western states and a couple of territories) judges. When an appeal is filed, it is normally heard by a panel consisting of three judges from the particular circuit court where the appeal is filed. 

After the panel issues its decision, if the losing party believes that that decision was wrong, the loser has three options. It can ask: (1) the three judges to re-think their disposition of the case; (2) all the judges in the circuit, sitting “en banc”, to review the panel’s decision; or (3) the Supreme Court to look the case over. Supreme Court review is usually the longest of long shots. Similarly, since the panel has just deliberated over the issue and come up with the result at hand, it’s usually a pretty good bet that the panel won’t be eager to reverse itself. But en banc review brings a bunch of different judges into the mix, so it presents at least some source of hope to the party unhappy about the panel decision.

But the rules are set up to make en banc review hard to get.

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Aereo in the Second Circuit: Wha' Happened?

Fox seems to think that the Second Circuit’s decision was a Big Deal. We’re not so sure.

So Aereo recently kept its winning streak alive with a favorable ruling from the U.S. Court of Appeals for the Second Circuit . . . and the next thing you know, the Fox Network is making noises about kissing good-bye to its over-the-air operations and moving to some alternative delivery system, possibly as a subscription service.

If you were to buy into Fox’s over-the-top reaction, you might get the impression that the Second Circuit’s decision marks a major, and possibly irreversible, turning point in the struggle between broadcasters and the proponents of various Internet-based programming systems. But that’s why you read CommLawBlog, right?

 As Mike LaFontaine might say, “Wha’ happened?”

Correct answer: Very little, at least as far as we can tell from the Second Circuit decision.

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Mission Abstract Data: Developments Aplenty, Clarity Not So Much

Delaware judge, USPTO take actions in long-running patent matter, but it’s hard to say what it all means.

Talk about mixed signals! March 25 very likely marked a crucial turning point in the up-and-down, back-and-forth tug of war between Mission Abstract Data (MAD) and many radio broadcasters, but it’s hard to tell for sure which way it turned and in whose favor.

On the one hand, in the federal court lawsuit in Delaware, on March 25 the judge denied MAD’s motion to lift the stay that has held that case in suspended animation for more than a year already. But in the same order the judge held that the stay would be lifted “upon the issuance” by the U.S. Patent and Trademark Office (“USPTO”) of “Notices of Intent to Issue Reexamination Certificates” (NIRCs) with respect to MAD’s two patents. As our loyal readers know, those patents have undergone not one, but two separate reexaminations at the USPTO over the last year or two.   Indeed, it appears that the judge in Delaware has held his case in abeyance until the USPTO reaches some final conclusion about the nature and validity of the patents.

But in a remarkable coincidence, also on March 25 it appears that the USPTO issued an NIRC relative to Patent No. 5,809,246 (the 246 Patent) and a “final rejection” relative to at least some aspects of Patent No. 5,629,867 (the 867 Patent). (The term “final rejection” appears in the PTO’s online description of the document.)

If you weren’t confused already, hang on.

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Will ivi Wither on the Vine?

Supreme Court rejection may be the end of the road for the upstart, Internet-based MVPD wannabe.

It looks like the Supreme Court may have dumped a final, fatal treatment of Roundup on ivi, Inc.  In a standard nine-word order (“The petition for a writ of certiorari is denied.”), the Supremes unceremoniously rejected ivi’s last-gasp effort to get out from under the preliminary injunction imposed by the federal District Court in NYC two years ago.  As a result, ivi is still barred from operating in the Second Circuit, and its future prospects are decidedly dim.

We’ve reported on several occasions on ivi.  It’s one of a handful of companies seeking to revolutionize television viewing by making broadcast signals available to viewers via the Internet.  ivi’s approach involves a liberal interpretation of the Copyright Act that would allow it to stream television programming directly to your computer, tablet or smartphone.  

ivi claims that its Internet-based streaming operation is the equivalent of a cable system as defined in Section 111 of the Copyright Act.  Under that theory, it has argued that it’s entitled to retransmit broadcast programming without the prior consent of the broadcasters as long as it pays applicable copyright royalties.  The broadcast industry has disagreed, naturally; in 2010, even before ivi started operation, broadcasters peppered ivi with cease and desist letters.  Undaunted, ivi went on the offensive, filing a lawsuit in the U.S. District Court for the Western District of Washington seeking a declaratory judgment that ivi is a cable system under the Copyright Act.  The broadcasters promptly countered with their own suit (alleging copyright infringement) in New York.

ivi’s Washington case was tossed by the judge there in January, 2011.  The following month, the broadcasters convinced the judge in the New York case to preliminarily enjoin ivi from operating pending the outcome of the case.  ivi appealed that ruling to the Second Circuit, to no avail.  In its trip to the Supreme Court it was trying to get the Supremes to lift the injunction.

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Cell Phone Unlocking: Mitchell Lazarus Sheds More Light

See and hear Mitchell Lazarus bypass his limited typing skills with a short video interview on cell phone unlocking.

Following up on his recent post on the cell phone unlocking ban, our colleague, Mitchell Lazarus, had the opportunity to speak with Colin O'Keefe of LXBN on the matter.  Happily, the interview was recorded and is now available for all to see - just click on the video below.   In the brief interview, Mitchell explains the latest developments and offers his thoughts on why Congress is likely to take action on the ban soon. 

Why It's Suddenly Illegal to "Unlock" Your New Cell Phone

White House, FCC gang up on Librarian of Congress, seek reversal of recent rule.

If you buy something, it’s yours, to do with as you want. Right?

Don’t be silly.

We first encountered the concept of limited ownership with purchases that lacked any physical existence, like e-books and online music. If I buy an online movie from Amazon, I can watch it on my Kindle Fire forever – but I can’t donate it to my local library. I can buy a book for my Kindle reader, but having read it, cannot pass it on to my wife. We don’t fully own these things because they’re not really things. They are made of bits, not atoms. What we buy is only a license for particular uses.

But when we buy an actual thing, made of atoms, then it’s ours, and we can use it in any way that we want.

Not any more. Not if the thing is a cell phone.

Most people buy a phone at much less than the real price. I paid Verizon $200 for mine, which actually costs more like $700. Over the next two years Verizon will recoup the difference out of my monthly payments. If I leave Verizon before the two years are up, they will charge me an “early termination fee” to make up the shortfall. That’s part of the deal that got me a $700 phone for $200.

But now let’s say my two years are up. The phone is paid for. My contractual obligations to Verizon are satisfied. Now I can walk away from Verizon and use the phone with Sprint-Nextel’s service instead. Right?

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Mission Abstract Data: Once More Unto the Breach!

If at first you don’t succeed, try, try again. Faced with what appeared to our non-expert eyes to have been a pretty negative ruling from the U.S. Patent and Trademark Office (USPTO) last December, our friends at Mission Abstract Data (MAD) have responded to that ruling with the submission of more materials to the USPTO. Their lawyer apparently also had a chat with the patent examiner on February 12.

Again, we won’t try to divine the precise meaning of MAD’s latest materials – we’re not patent lawyers, after all. But in the interest of putting those materials out there for everyone to take a gander at, here they are, fresh from the USPTO’s website: the documents filed by MAD in connection with its “246” and “867” patents. (Note that the “Electronic Acknowledgement Receipt” listing the submissions about the “867” patent indicates a number of materials that aren’t included in the linked document. Our link is to a compilation of all the documents that were showing up on the USPTO website relative to the “867” patent as of noon on February 20. We’ll try to circle back around to that site every now and then and may update this post if the other listed documents surface there.)

We won’t begin to speculate on the interrelationships of (a) this filing and the February 14 lawsuits initiated by MAD (through DigiMedia) or (b) those lawsuits and the February 12 conversation between MAD’s lawyer and the patent examiner or (c) any of this and the upcoming hearing in the federal District Court in Delaware relative to the possible lifting of the stay in that litigation. Obviously, there appear to be a number of moving parts at work here. We’ll try to keep track of as many as possible and report on developments that might be of interest. Check back here for updates.

Mission Abstract Data: Shut Up and Deal!

Texas Hold ‘Em or Texas Hold Up? MAD goes all in in East Texas.

Like that gambler who just doesn’t know when to quit, always looking for the big score, our friends at Mission Abstract Data (MAD) – through their latter-day identity, DigiMedia – are back at the table.  On February 14, DigiMedia filed lawsuits against four radio companies with stations in Texas, arguing that the companies have engaged in patent infringement. (You can find links to the complaints, sans attachments, here, here, here and here.) The allegations are essentially identical to those advanced by MAD in federal court in Delaware against seven large radio companies back in March 2011.  The fact that the new lawsuits aren’t markedly different from those earlier, still pending, suits actually raises some questions.

We’ve been dutifully following and reporting on the Mission Abstract Data (now “DigiMedia”) patent saga for nearly two years.  (Standard disclaimer: we are NOT patent attorneys, and make no claim to special familiarity with patent law in general or as it might apply to MAD’s arguments.) As of late December it looked like the saga was nearing its end. That’s when the United States Patent and Trademark Office (USPTO) – for the second time – reexamined the patents underlying MAD’s claim and appeared to narrow the scope of those patents dramatically. 

Despite that apparent setback, MAD has now come roaring back, suing four separate licensees with FM stations in Tyler, Greenville, Denison and Palestine, all in Texas.

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Annual Webcaster Wake-Up Call! Some Things DO Change on New Year's Day

Webcasters have until JANUARY 31 to file Statement of Account forms, pay annual fees to SoundExchange

According to famed lyrical poet Paul Hewson (“Bono” to his millions of friends), “nothing changes on New Year’s Day”. He reportedly started writing the song as a love paean to his wife, although it eventually morphed into a political statement inspired by the Polish Solidarity Movement. Regardless of the song’s broader political statement (or anybody’s personal notions about the significance of New Year’s Day), the plain statement isn’t true: things do change on New Year’s Day. 

Compliance with the statutory license applicable to webcasting is one of those things. 

When the ball drops in Times Square, webcasters are faced with updated forms to fill in and submit, a new cycle for reporting, and a clock ticking down the 31 days until the annual minimum fees of $500 per channel must be sent to SoundExchange. 

Thankfully, much like last year, the changes from 2012-2013 are pretty minor. The rates have increased slightly. The forms have changed a little (with a new look and feel), although that shouldn’t be anything to worry about if you’ve done this before. And, in perhaps the most noteworthy change, there are actually fewer forms for some webcasters to file. Here’s an overview of what will be expected of webcasters in 2013.

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Harbowl, Super Bowl® and Mr. Roy Fox - A Lesson to be Learned, Again

Yet again, the NFL provides evidence of its aggressive efforts to protect both trademarks it owns and trademarks it doesn’t own.

With four minutes to go in the AFC Championship game and the Ravens looking good for a trip to Super Bowl XLVII®, I noticed that the hashtag #Harbowl was already blowing up on my Twitter feed.  That’s because a Ravens victory would mean that, for the first time in NFL history, two brothers – those would be John and Jim Harbaugh, of the Ravens and Forty-Niners, respectively – would be facing each other as head coaches in the Super Bowl®.  Look for “Harbowl” to become the unofficial moniker for the game.

Being a trademark lawyer geek, I immediately flashed on two thoughts: (1) how quickly could  I get an application on file with the U.S. Patent and Trademark Office (USPTO) to register “Harbowl” as a trademark (for hats, shirts, bumper stickers, temporary tattoos and all the other impulse items that NFL fans will be craving for the next two weeks); and (2) what are the chances that I could get that application granted?

Answer to Question One: I might be able to have an “intent to use” application on file before the game is done – it’s just that easy to file for trademark protection.  (Tip to readers: The ease of filing for such protection is a reason all of you should consider protecting your call signs, program names, slogans and other important brands by filing applications for federal trademark registrations.)

Answer to Question Two: “slim” and “none”, since – thanks to federal trademark law – I’d probably need the permission of the Harbaugh brothers to trademark something referencing their names. 

And that’s before the NFL has its say.

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Judge Puts the Cuffs on AereoKiller

Disagreeing with the Second Circuit, a district judge in the Ninth Circuit has enjoined Aereokiller from transmitting its opponents’ over-the-air programming.

Remember Aereo, the Barry Diller-backed startup seeking to revolutionize the way we watch television? (Hint: It’s the video delivery service that uses rooms full of dime-sized antennas, each assigned to a different subscriber, enabling said subscriber to watch broadcast television via any mobile, Internet-based device.) As we reported last summer, Aereo won a key legal battle in New York in July, when a federal judge OK’d the continued provision of Aereo’s service at least temporarily. (Technically, the judge refused to issue a preliminary injunction requiring Aereo to shutter its service while it’s being sued by a number of broadcasters claiming that the Aereo service infringes their copyrights.) 

You may also recall Alki David, the owner of several services providing online distribution of over-the-air television (and other) programming. The most relevant for our purposes are and Aereokiller

David’s Aereokiller service seems to have drawn inspiration (not to mention its name) from Aereo’s service. While not absolutely identical to Aereo, Aereokiller rests on the same general technology and the same basic legal principles as Aereo. (In its court filings, Aereokiller argues that it is not only technologically analogous to Aereo but, in fact, “better and more legally defensible”). And further highlighting the influence of Diller’s Aereo service on David’s Aereokiller service, the latter was originally launched via a website found at (though it has now migrated to David’s site and is available via an Aereokiller app); it appears to be operated by the David-owned “Barry Driller Content Systems, PLC”. At least I think I’ve got that corporate structure right (there’s clearly a lot going on here). 

In any event, it’s easy to suppose that David may have Aereo and Barry Diller in his sights, at least competitively. But a recent decision by a federal judge in Los Angeles could deep-six both Aereokiller and Aereo: Judge George Wu from the United States District Court for the Central District of California has issued a preliminary injunction against at least some aspects of Aereokiller’s operation.

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A Large Lump of Coal in Mission Abstract Data's Stocking

USPTO rejects validity of most of MAD’s patentability claims, undermining MAD’s assertions that many radio broadcasters may be liable for patent infringement.

Holiday cheer came a little early for many radio broadcasters this year: Santa Claus (disguised as patent examiners at the U.S. Patent and Trademark Office (USPTO)) issued two “Detailed Actions” with respect to challenges that had been directed to the two patents held – and vigorously brandished – by Mission Abstract Data (MAD). Both of those “Detailed Actions” (one related to Patent No. 5,629,867, the other to Patent No. 5,809,246) rejected multiple claims to the patentability of MAD’s technology.

As a result, the likelihood that MAD (or its successor, Digimedia, or its licensing agent, IPMG AG) might receive a significant damage award in any patent infringement litigation which it has broadly hinted at has been reduced substantially.

Regular CommLawBlog readers should be familiar with the MADness that has afflicted the radio industry since 2011. (New to the subject? Get a refresher course by checking out our archives on the subject here.)

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Final NCE Royalty Rates Set For 2013-2017

The Copyright Royalty Board (CRB) has announced its final determination of the rates and terms for use of copyrighted works by noncommercial educational (NCE, a/k/a “public”) broadcasters for 2013-2017.  This wraps up the proceeding I’ve kept readers up to speed on through a couple of posts over the eight months.  (You can check them out here and here.)  The new rates and terms will be in effect from January 1, 2013 through December 31, 2017.

So now all NCE broadcasters – small community stations, educational institutions and large scale public radio and television stations) – know exactly how much they’ll be paying to ASCAP, BMI and SESAC for the right to use the underlying music and lyrics in all songs included in their over-the-air broadcast programming for the next five years.  (As I have previously mentioned, the new rates/terms technically also cover the use of pictorial, graphic and sculptural works, but the reality is that it’s all about the music.)  

Important note: the CRB’s determination does not relate to the use of sound recordings for webcasting purposes.  The current webcasting royalties, for both commercial and noncommercial webcasters, were set back in 2010, as I described in my post back then.  (As to webcasting royalties, NCE stations should not forget that their annual reports, payments and (in some cases) elections will be due in January, 2013.  Check back here for additional reminders on that score -- although I'll be sending out reminders to many of our clients starting next week.)

The proceedings leading up to the adoption of the 2013-2017 royalties could not have gone more smoothly (even though it did take almost two years to reach this point).

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SESAC in RMLC's Litigation Sights

Antitrust lawsuit looks to bring SESAC under federal court supervision, like ASCAP and BMI.

The Radio Music License Committee (RMLC) has sued SESAC in an effort to bring SESAC within the same general judicial constraints as the other two major performance rights organizations (PROs), ASCAP and BMI. According to the RMLC, SESAC (initially founded as the “Society of European Stage Authors and Composers”, but since officially shortened to just “SESAC”) is violating a number of antitrust laws.

The case pits two somewhat misunderstood organizations against each other. 

SESAC, of course, is a PRO, i.e., an organization which represents song composers and to which broadcasters must pay royalties for the right to perform the musical works of SESAC-affiliated composers over the air and online.  (In fact, unlike ASCAP and BMI, which are not-for-profit entities, SESAC is a for-profit PRO).  Comments I’ve received about SESAC from a number of broadcasters have tended to be negative, if not flat-out vitriolic. That may be because of significant royalty rate hikes in recent years, or possibly SESAC’s perceived reluctance to negotiate or otherwise deal with broadcasters when problems arise. Or maybe it’s the fact that SESAC requires radio broadcasters to get a separate license when engaged in webcasting (ASCAP and BMI incorporate webcasting into the existing radio license).

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Congressional Resolution to Copyright Disparities Sometime Soon?

Dueling bills to modify calculation method for some royalties could level the playing field among music media . . . or not.

Most people don’t think about how copyright royalties are calculated – they just think that whatever they’re paying (or receiving) is too high (or too low). That’s true regardless of who you are or what you pay.

The recording industry thinks that recording artists don’t get enough compensation for their copyrighted works – especially from broadcasters who have always enjoyed a full exemption from paying royalties for over-the-air performance of sound recordings (i.e., the version of a song you’re actually hearing at that particular moment). 

Each of the various services that provide recorded music to the public – broadcasters , stand-alone Internet radio operators and even Sirius XM – seems to believe that they’re getting a raw deal compared to the way the other such services are treated. For instance, Sirius XM doesn’t like that they have to pay for all their transmissions – both via satellite and the Internet – while broadcasters get that over-the-air exemption. Broadcasters think the per-performance rate for online streaming is too high, especially given online advertising hasn’t increased at a similar rate, which means that increased listenership increases costs but not revenues. And Pandora feels as though it’s at a disadvantage to both, because it, too, pays a rate higher than Sirius XM and doesn’t enjoy any exemption like broadcasters do.  

The disparity in the royalties each of the services get tapped for is the fault of Congress, which has established distinct approaches to royalty calculation for each.

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.RADIO - A Look at the Four Contenders for Control of the TLD

As ICANN processes applications for new top level domains, four applicants are in the running for the .RADIO TLD.

We recently reported that the Internet Corporation for Assigned Names and Numbers (ICANN) received 1,930 applications for new top level domains (TLDs) – including dozens of applications for broadcast- and media-related applications including .MEDIA, .MUSIC and .VIDEO.

But the four applicants for .RADIO caught our eye. They seek to offer services to radio broadcasters around the world, and may well change the way radio broadcasters operate, both on the Internet and offline. Their applications merited a closer look.  

Before diving in, we need to define a number of terms that are central to the TLD system.

First, “Registry”. In ICANN parlance, a registry is an entity which, under contract to ICANN, provides the authoritative master database of a single TLD and manages all “second-level” domain names registered within that TLD. Example: “.COM” is a TLD, and “FHHLAW.COM” is a second-level domain name registered with the “.COM” TLD.  Verisign is the Registry for .COM. Registries may not generally sell directly to the public. Each of the four .RADIO applicants is seeking to be the registry of .RADIO.

Next, “Registrar”. A registrar is an entity accredited by ICANN and under contract to a Registry.  The registrar adds, deletes, updates and transfers second-level domain names. Registrars are the “salesmen” of domain names. GoDaddy is the largest registrar in the world.

When it comes to new TLD applications, there are two types:

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Update: USPTO Orders Re-exam of Second Mission Abstract Patent . . .

. . . and the broadcasters have notified the Delaware judge of the USPTO orders

When last we visited the Mission Abstract Data (MAD) fracas, the U.S. Patent and Trademark Office had ordered that one of MAD’s patents be re-examined.  (That would be  Patent No. 5,629,867.)  Two days later, a similar order was issued with respect to the other patent (i.e., Patent No, 5,809,246) that MAD is relying on in its efforts to convince radio licensees to sign up with MAD for the right to utilize technology that MAD claims is covered by those patents. (If you’re new to L’Affaire Mission Abstract, you might want to check out our previous posts on the subject, which may be found at this link.)

We’ll leave the process of dissecting the USPTO’s orders to the patent mavens although, as we previously observed, those orders are probably not welcome news chez MAD.

By contrast, the USPTO orders were probably greeted with open arms by the broadcasters who MAD sued in U.S. District Court in Delaware. They have wasted no time in bringing the orders to the court’s attention in a supplement to their opposition to MAD’s motion to lift the stay which is currently in place, effectively freezing the litigation. (Note that copies of the two USPTO orders are included as attachments to that supplement.) As we suggested in our previous post, the fact that the patents underlying MAD’s lawsuit are being re-examined could convince the judge in the lawsuit to keep the case on ice a little while longer (i.e., probably at least until the USPTO review is resolved). Why, after all, would the court insist on forcing the parties through extensive litigation about alleged patent infringement if the patents in question are still being re-examined?

If we were betting bloggers, we’d guess that the next thing we’ll see will be a response from MAD to the court, probably trying to explain why the USPTO re-examinations shouldn’t make any difference. Check back here for updates.

Court Approves RMLC/BMI Deal

It’s official! Royalty agreement now fully in place through 2016.

We notified you last June that BMI and the RMLC had reached an agreement in principle regarding the rates to be paid by broadcasters for the right to publicly perform musical works. At that time, we were able to lay out the basic agreement but cautioned that it was subject to approval by the United States District Court for the Southern District of New York.

The RMLC has now announced that, on August 28, Judge Louis Stanton of that District Court approved the agreement, making the rates and terms specified in the deal effective through 2016. The highlight from our perspective is not just a presumed lowering of the rates for most stations (due in no small part to an industry-wide $70.5 million credit against 2010-2011 payment), but a simplified calculation method based on gross revenue. That puts an end to the old calculation method that was tied to a base fee, a method that many in recent years considered to be way out of date and extremely cumbersome. As indicated in the RMLC announcement, radio stations should already have reaped the benefit of the 2010-2011 credit, as it was being applied to their BMI accounts starting in June 2012.

Kudos once again to Bill Velez and his crew for great work in representing radio broadcasters.

ivi TV Loses Round Two

Second Circuit affirms injunction preventing would-be online “cable system” from carrying over-the-air content.

ivi TV, the company that burst onto the video delivery scene two years ago with a business plan based on an innovative reading of Section 111 of the Copyright Act, has suffered a major setback at the hands of the U.S. Court of Appeals for the Second Circuit. The court has upheld a lower court’s order enjoining ivi TV from infringing the copyrights of the broadcast networks that sued ivi TV back in 2010. 

The lower court’s injunction effectively put ivi TV’s operation on life support. The Second Circuit’s decision may have pulled the plug entirely.

ivi TV’s idea was relatively simple, if outside the box. ivi TV wanted to stream broadcast stations online in real time. It wasn’t a cable company in the traditional sense: no headend, no wires, no set top box. But according to ivi TV, it was entitled to retransmit over-the-air broadcast signals, without the broadcasters’ permission, because ivi TV’s operation was essentially a “cable system” as that term is used in Section 111. Section 111 gives “cable systems” the statutory right to such retransmission, provided they pay governmentally-established royalties (which ivi TV said it was willing to pay).

The district court disagreed with ivi TV’s reading of Section 111 back in 2011. And now the Second Circuit has piled on, concurring with the district court that Congress “did not intend for § 111 licenses to extend to Internet retransmissions”. That conclusion largely guts ivi TV’s claims.

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Update: USPTO to Take Another Look at Mission Abstract Patent

Reexamination of Patent No. 5,629,867 ordered as further questions of “patentability” surface.

Our friends at Mission Abstract Data (and, in turn, their friends at Digimedia and IPMG AG – as is our custom, we’re refer to them all collectively as MAD) got some disappointing news from the U.S. Patent and Trademark Office (USPTO) on August 21. A USPTO Patent Reexamination Specialist has issued an order granting a request for reexamination of one (i.e., Patent No. 5,629,867) of the two patents on which MAD has been relying in its efforts to convince radio broadcasters to enter into licensing arrangements with MAD in order to avoid patent infringement liability.

[We expect to have a link to the USPTO order available soon. It’s already available through the USPTO website, but getting to it through the USPTO’s, um, unusual system takes a lot of effort and some guesswork. Check back here over the next couple of days. UPDATE: Here is the promised link to the USPTO's order.]

We won’t revisit the history of MAD’s efforts. You can get a reasonably good idea from our past posts collected here. And in keeping with our repeated disclaimer about our acknowledged lack of patent law expertise, we also won’t delve deeply into the nitty-gritty of the order.

But we have read the order, and were struck by the fact that the USPTO specialist concluded that “substantial new question[s] of patentability” have been raised as to all ten claims comprising the ‘867 patent.

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Out of the ashes of one MVPD wannabe rises another.

To paraphrase T.S. Eliot, this is the way the MVPD wannabe ends, not with a bang but a whimper. . . and a $1.6 million settlement payment.

You remember They’re the folks who were going to revolutionize the video biz by legally delivering broadcast signals via the Internet . . . until they got immediately sued for copyright infringement by the major broadcast networks. 

“Oh, you mean Aereo, right?”, you reply. 

That would be the Barry Diller-financed entity that captures broadcast signals via a series of individual antennas, stores them on individually assigned remote DVRs and allows subscribers to watch programming in (almost) real time or via delay over the Internet. But, no, they’re not who we’re talking about here. Aereo still exists and has even won the first round in its legal battle against the broadcasters, surviving a motion for preliminary injunction.

“Oh, right . . . you’re talking about ivi TV?”, you protest, referring to the wannabe “first online cable system”. No, not them either (but you’re close).

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Update: Aereo Allowed to Continue Operation During Copyright Challenge

 Judge denies broadcasters’ request for injunction.

In the Aereo v. the Broadcasters smackdown, Round One has gone to Aereo. In a thorough 52-page opinion, Judge Alison Nathan, U.S. District Judge in the Southern District of New York, has rejected efforts by the broadcaster plaintiffs (i.e., the major broadcast networks) to get the court to enjoin Aereo’s operation. That means that Aereo can continue to serve its subscribers while the broadcasters’ various substantive claims against Aereo (consisting of claims of various flavors of copyright infringement) are litigated.

That’s bad news for the broadcasters. But what’s worse is how Judge Nathan got to that result. 

(If you’re fuzzy on just what the Aereo litigation is all about, take a look at our initial post about the case.)

Judge Nathan concluded that Aereo’s system is, for purposes of copyright law analysis, essentially the same as the Remote Storage DVR (RS-DVR) system that, according to the U.S. Court of Appeals for the Second Circuit, does not infringe copyrights. While her opinion grants a number of points to the broadcasters, her conclusion about the similarities between Aereo and the RS-DVR system deals the death blow to the broadcasters’ injunction request – and, looking down the line, very likely also to its overall claims of infringement.

We’ll delve into Judge Nathan’s decision a bit more below. But first, a brief primer on litigation procedure may give readers not versed in the Litigation Arts an understanding of what has happened thus far and what it means going forward.

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TV Stations' Cable and Satellite Copyright Royalty Claims Due July 31

As July slips into August, it’s time again to remind television broadcasters that Copyright Royalty Claim forms – for cable retransmission copyright royalties and/or satellite copyright royalties earned during 2011 – are due at the Copyright Royalty Board by 5:00 p.m. on Tuesday, July 31, 2012.  (The CRB's site doesn't specify that that's 5:00 p.m. Eastern Time, but it's probably best to assume that that's what they mean.)  This is your opportunity to lay claim to a share of the annual fund from which television broadcast stations get paid for their programming that is retransmitted by cable and satellite service providers outside of their respective service areas.

In general, TV stations that are carried on cable systems as a distant signal, and those stations that provide programming to other stations that are carried as a distant signal, are entitled to royalty payments.  A cable system is “distant” vis-à-vis a station if the system is: (1) outside the station’s DMA; and (2) at least 35 miles from the station’s city of license; and (3) outside the station’s predicted Grade B contour.  Stations whose programming is carried on satellites to subscribers outside the station’s DMA are also entitled to royalty payments.

The Copyright Office encourages stations to file their Claim Forms online.  The forms can be found at:

If you would like assistance in the preparation and filing of royalty claims, please contact Davina Sashkin at or (703) 812-0458.

Update: Mission Abstract Replies

Arguing again for lifting of stay, MAD claims it’s the victim of a “sophisticated”, “multi-pronged”, “coordinat[ed]” effort to “attack” and “derail” MAD. 

In keeping with our commitment to try to keep our readers on top of ongoing developments in the Mission Abstract Data (MAD) patent litigation in Delaware, here’s the latest: a link to MAD’s most recent pleading in its effort to get the stay of that litigation lifted. Attentive readers will recall that the U.S. District Court in Delaware put a hold on the litigation last year at the request of the defendants, a number of Big Broadcasters. Last month MAD petitioned the court to get things moving. Not surprisingly, the Big Broadcasters opposed that petition, and now MAD has replied to that opposition.

Since (as we have repeatedly acknowledged) we here at CommLawBlog are not patent experts, we won’t opine about MAD’s various arguments. They look pretty much like what you might expect. MAD generally belittles the litigation claims of the Big Broadcasters (and BEI, which has challenged MAD’s patents in the U.S. Patent and Trademark Office) and bemoans the fact that its case hasn’t progressed. Folks familiar with litigation probably won’t be surprised by anything in MAD’s reply.

Perhaps most interesting is MAD’s repeated insistence that continued delay has been and continues to be prejudicial to its “licensing program”. That “licensing program”, of course, is the repeated, insistent effort by MAD (and its cohort, including DigiMedia and IPMG AG) to browbeat radio broadcasters into agreeing to pay for the right to use MAD’s patented technology, whatever that may be. (MAD reads its patents very broadly; others disagree with MAD’s interpretation. That’s where the USPTO and the Delaware court come into the picture.)

MAD’s business – which it describes as “non-litigation intellectual property licensing” (points for making this argument in the context of litigation with a straight face) – will be prejudiced by continued delay, according to MAD, because:

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The CRB Dodges an Appointments Clause Bullet

From unconstitutional to constitutional in a couple of pages, the Copyright Royalty Board has dodged a bullet, thanks to the D.C. Circuit.

The U.S. Court of Appeals for the D.C. Circuit has concluded that the structure of the Copyright Royalty Board (CRB) violates the Appointments Clause of the Constitution. As a result, a CRB rate determination under appeal has been vacated and the matter remanded to the CRB for further consideration. 

But wait, you say – why remand it to the CRB if the CRB is unconstitutional? In a deft demonstration of judicial legerdemain, the court also concluded that CRB’s unconstitutionality could be remedied if the court were simply to write some inconvenient language out of the governing CRB statute – and that’s just what the court did. So while the CRB may not have been constitutional before the court’s decision, it will be constitutional as of that decision, as will CRB determinations made after the court’s decision.

The case involves a challenge to the CRB’s 2011 decision setting copyright royalty rates for certain noncommercial webcasters. Intercollegiate Broadcasting System, Inc. (Intercollegiate), an association of noncom webcasters unhappy about the decision, appealed.

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Update: Mission Abstract Opponents Make Their Case for Keeping Stay in Place

Broadcast defendants shed useful alternative light on current status and future prospects for MAD claims. 

It’s Mission Abstract Update Time! In the lawsuit brought by Mission Abstract Data (MAD) against a bunch of Big Broadcasters, those Big Broadcasters have recently filed a pleading that radio broadcasters should take a look at. You can check out a copy here.

Alert readers will recall that, in its suit, MAD claims that the defendant radio broadcasters have infringed patents that MAD bought up a year or two ago. And with that suit making headlines, MAD (along with its pals DigiMedia and IPMG AG) has been putting the hard sell on other radio broadcasters, trying to get them to sign onto “license” agreements authorizing them to use MAD’s patents. 

That hard sell campaign (which features hefty FedEx packages full of impressive-looking documents, followed up by insistent sales calls from slick salesmen) had died down somewhat after the Delaware court put the lawsuit on hold last fall. But the campaign flared back to life recently, rattling the nerves of the targeted radio stations. (Who was targeted? Based on a conversation I had with a MAD rep, I gather that they’re going after radio stations that play music and have a website. Those two factors, apparently, are evidence that the station has a computer, which leads MAD to figure that the station is using technology which violates the patented technologies.)

We’ve tried hard to keep our readers updated on the lawsuit and related matters.

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PBS/NPR Proposed 2013-2017 Copyright Royalty Rates Out for Comment

 CRB seeks input on last piece of NCE royalty rate puzzle for next five-year period.

A couple of months ago, we reported that the Copyright Royalty Board (CRB) had invited comments on a number of proposals to govern copyright royalties owed by noncommercial (NCE) broadcasters to ASCAP, BMI and SESAC from 2013 through 2017. The various proposals covered a substantial portion of the NCE universe, with one important exception. As we noted, the CRB’s notice did not mention proposed rates for NPR or PBS stations.

Now we know why.

It appears that NPR and PBS were still working on their proposed rates. But that work has now been concluded. In joint comments filed in May with the CRB, NPR and PBS have outlined their proposed approach, which would require payment based on the use of the musical work (or piece of art), the type of station performing it, and the manner in which it is performed. And now the CRB wants to know what everybody else thinks of the NPR/PBS proposal.

As in our earlier post, we’ll forego a detailed listing of all fees in favor of a general overview:

The overall structure would be unchanged from the 2008-2012 period. Unlike non-NPR, non-PBS stations – which will pay a blanket fee to ASCAP, BMI and SESAC (with a reduced fee option available to stations that favor news/talk/sports over music) – NPR and PBS stations would pay for the use of each individual piece of music.

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ICANN Publishes List of Requested New Top Level Domain Names

The 1,930 “strings” include brand names, famous place names, and generic words.

ICANN (Internet Corporation for Assigned Names and Numbers) has published the list of 1,930 “strings” people around the world have requested for new top level domain names. On “Reveal Day,” June 13, the Internet Community paused for a moment from its busy activities to stop and look at the nearly 2,000 new words and letters submitted by companies and organizations as possible additions to the Internet’s global nomenclature. None have yet been accepted, but the formal process of evaluation and objection has begun.

At 8:15 a.m. ET, ICANN sponsored a press and public event in London with its CEO Rod Beckstrom and Senior VP Kurt Pritz, featuring a big-screen scroll through the requested names, followed by questions from the press. The list has brand names, including .DELOITTE and .NOKIA, famous place names, including .ISTANBUL, .PARIS, .OSAKA and .LONDON, and generic words, including .RUGBY, .VIP and .KETCHUP.

I’ve been intimately involved in helping to negotiate the rules of new generic top level domain names for four years. What I will remember most about this event is the non-English new gTLDs that jumped off the screen, written in Chinese, Arabic, Japanese, and Cyrillic.  These foreign script new gTLDs represent a range of companies, geographic regions, and generic uses – such as BAZAAR.  Although they are only 116 of the 1,930 new applications, they represent a huge step forward, because they open the previously English-oriented Internet domain name system to a range of languages and to a majority of the world -- a key reason many of us worked so hard on this process.

The formal objections – based on legal rights, public interest, and possible confusion – will soon fly.  Some will involve fights among those who spent money in applying for the same new gTLDs, including seven applicants for .WEB, five for .FREE, and four for .RADIO. 

But before that happens, it’s good to take a moment to pause and celebrate. ICANN issued an invitation to the world to apply for new gTLDs. They were expensive, and the application process was difficult. Frankly, we weren’t sure who would show up. But the world responded. Just as many of us suspected, there is a global need for growth and innovation in domain names.

To celebrate Reveal Day, I’ll share some of the strangest new gTLDs that I found. The rest are posted on the ICANN website:

.FOO      .BOO     .GOO



.AND     .ARE       .OOO


RMLC and BMI Announce Royalty Deal

Similar to ASCAP deal inked earlier this year, new arrangement sets rates through 2016

Earlier this year, the Radio Music License Committee (RMLC) and ASCAP reached a deal setting the royalty rates to be paid, through 2016, by broadcasters to perform musical works by composers repped by ASCAP.   The major components of the deal were (a) a simplified payment process and (b) a basic licensing fee equal to 1.7% of gross revenues.

We had since heard through the grapevine that RMLC and BMI had reached a deal, also running through 2016, for use of BMI-represented musical works. Good news – on June 11 RMLC and BMI issued a joint press release confirming the deal, and providing a summary of the details. Though the agreement must still be formally approved by the United States District Court for the Southern District of New York (because of some antitrust litigation involving ASCAP and BMI that goes back several decades), the prospects for approval are generally good. And that’s welcome news for broadcasters, because the BMI deal is very similar to the ASCAP deal.

Here are the high points:

Most importantly, the old “benchmark fee” based computation system is gone. It’s being replaced by a much simplified percentage of revenue payment rate, with broadcasters paying the same 1.7% of gross revenues to BMI that they are paying to ASCAP. 

Broadcasters can also take a standard deduction of 12% for revenue derived from terrestrial/analog and HD multicasting broadcasts and 25% for revenue attributable directly to new media.

The “per program” option reducing a news/talk station’s royalties by at least 50% from its blanket license is being retained. There is a base fee of 0.2958% of gross revenue with the same deductions as above.

There is also expanded rights coverage to accommodate new media uses.

This translates into a $70.5 million credit across the industry which will be reflected in broadcasters’ June, 2012 statements.   So what we have here are lower rates and a simplified computation mechanism that will apply to both ASCAP and BMI. 

That’s what is known in legal circles as a “win-win”.  Kudos to Bill Velez and his team over at RMLC for their great work.

Update: Mission Abstract Tries to Get Its Case Moving

MAD files motion to lift the court-imposed stay of its patent infringement suit

As expected, on June 6, Mission Abstract Data (again, we’ll refer here to the company and its cohorts as “MAD”) filed a motion with the United States District Court in Delaware requesting that the stay in its lawsuit against a number of Big Broadcasters be lifted. (Note: our link here is to the Memorandum in support of the motion. As is customary, the motion itself is bare-bones in nature; the gist of MAD’s argument, such as it is, is set out in the memorandum.) Secondarily, the motion also asks that the court substitute DigiMedia Media Holdings Group, LLC (DigiMedia) as the plaintiff/counterclaim defendant in that suit.  

We’ve been waiting for this, hoping that MAD’s request (and the broadcasters’ response, which will probably be filed in a couple of weeks) would shed useful light on what the recent actions at the USPTO might mean.

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Mission Abstract Data Resurfaces

 Claiming recent victory at the USPTO, patent troll again seeks to get radio broadcasters to license automated programming system – but questions still remain

They’re baaaaaack!

Mission Abstract Data – or, more accurately, its successor (Digimedia), its licensing agent (IPMG AG), and a bunch of very aggressive reps (for simplicity’s sake, we’ll just refer to them all collectively as MAD) – are back, trying to convince radio broadcasters that they should be signing licensing agreements covering certain technology for which MAD claims to be the patent holder. While MAD’s materials do not expressly threaten that non-signing broadcasters will be sued, recipients might still feel the cold chill of potential litigation as they consider MAD’s pitch.

The technology in question involves automated programming systems. MAD itself didn’t create the systems or get them patented. (That honor goes to a gentleman named Robert J. Goldman, who obtained the two patents in 1997.) But MAD acquired the patents and has, for more than a year, been seeking to extract licensing deals from the radio broadcast industry. In March, 2011, MAD sued a passel of very large broadcast groups for patent infringement; soon thereafter it began peppering radio operators large and small with mailings and phone calls.   You can read our previous posts about MAD’s activities here.

As we reported last fall, the MAD lawsuit (pending in the U.S. District Court for the District of Delaware) was stayed pending further review of the underlying patents at the United States Patent and Trademark Office (USPTO). The stay made sense, particularly in view of the apparently impermanent nature of the USPTO’s determinations relative to the validity of the patents in question. Those patents were originally approved back in 1997. But then approval of major elements of them was withdrawn in October, 2011.

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Are You Using 20th Century Contracts for 21st Century Transactions?

[Blogmeister’s Note: Recently, the CommLawBlog Contracts Guy, Steve Lovelady, conferred with Kathy Kleiman, Fletcher Heald’s Internet Maven, in the preparation of transaction documents involving the sale of a broadcast station, a sale which involved a number of important Internet-related assets. The two concluded that 20th Century asset sale/purchase agreements – even agreements that contracting parties still use, often out of force of habit – don’t include adequate provisions for 21st Century intellectual property issues. They prepared the following post based on that experience. The Contracts Guy is especially grateful for the Internet Maven’s extensive familiarity with the Internet, which came in handy in identifying and capturing the substance, and value, of a station’s online intellectual property assets.]

 Contracts for the purchase/sale of broadcast stations are a bit like recipes. Particular broadcasters and their lawyers tend to have their favorite versions which include provisions that they happen to like. Maybe they drafted those provisions themselves. Maybe the other party to some deal they did a long time ago drafted them and our particular broadcasters (and their lawyers) liked the way the provisions worked. Who knows?

Whatever may be the case, when a new deal pops up, those broadcasters (and their lawyers) normally don’t waste time creating a brand new asset purchase agreement from scratch. No. More often than not they rummage through their file of previous deals. When they find a contract that comes close to the outlines of the new deal, they tweak the old contract as necessary to make it work for the new deal – just as a chef, in assembling a new meal, starts off with tried-and-true recipes that can be tweaked here and there to accommodate the guest’s tastes and the ingredients available.

That approach tends to work well. It’s efficient and economical. And it affords contracting parties the psychological comfort of using documents they’re familiar with.

But reliance on the old can cause problems. Contracts handed down from year-to-year and deal-to-deal may need to be freshened up, just like old recipes. And that’s particularly true with respect to broadcast deals in the 21st Century.

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ICANN Slams Door on Applications for New Internet Top-Level Domains

List of applicants to be disclosed on June 13.

The universe of Internet addresses will soon be expanding. On June 13, the Internet Corporation for Assigned Names and Numbers (ICANN), the organization formed in the late 1990s to oversee the global domain name system, will unveil the 2000+ applications for a host of new “Generic Top Level Domains” (gTLDs). Once in place, these will change how all of us use the Internet.

First things first. A top level domain (TLD) is the term that appears “to the right of the dot” in Internet addresses. It comes in two flavors: a “country-code” top level domain, or ccTLD (e.g., “.US”, “.FR”, “.UK”) and a “generic” top level domain (or gTLD), including most of the ones we use every day, such as “.COM”, “.ORG”, and “.GOV”.

Since ICANN took over domain name management in 1999, it has added a few gTLDs, but there are only 21 now available for the world to use. Each gTLD is entrusted to a Registry which is responsible for the TLD’s technical management, including proper operation of the registry zone servers and dissemination of the TLD zone files. Registries play a role key in the technical management of Internet infrastructure and in stability and security of the Net.

Registries do not sell domain names to the public. That task is reserved for “Registrars,” who handle the retail side of the domain name operation. They register “second level domain names” to the left of the dot, e.g., “fhhlaw” in GTLD Registrars, like gTLD Registries, are under contract to ICANN, which encourages competition among them. GoDaddy, famous for its Super Bowl commercials, is the largest of these.

ICANN is now introducing competition to the top level as well.

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FHH Welcomes Back Kathy Kleiman

Internet expert returns to co-head Internet Law and Policy Group.

Fletcher Heald & Hildreth, P.L.C. is pleased to welcome Kathy Kleiman back into the FHH fold.  Kathy was an associate with the firm in the 1990s, but she left to explore the then-just-developing world of Internet Law (but not before she had co-founded the firm’s Internet Law Group, one of the first of its kind).  She now returns as FHH’s Internet Counsel to co-lead its Internet Law and Policy Group. 

To say Kathy is well-suited for the job is an understatement.  She helped found the Internet Corporation for Assigned Names and Numbers (ICANN), the organization that coordinates the domain name system without which the Internet wouldn’t be the Internet.  Kathy was a key drafter of the domain name dispute policy everyone uses today, and an editor of many sections of the rules governing new top-level domains.  She has traveled to ICANN meetings in more than a dozen countries on six continents and spoken on Internet Free Speech, intellectual property protections, fair use, privacy and due process around the world.

Kathy is Beantown-educated – Harvard undergrad, BU law (both with honors, thank you very much).  She currently lives in Falls Church, Virginia, where she dabbles in community leadership and politics when she’s not tending to her two kids.  In what passes for free time chez Kleiman, she is also producing a documentary about the six women who programmed ENIAC, the world’s first modern computer, and thus founded the field of modern programming. (Want to know more about Kathy’s background? Check out her extensive résumé here.)

Kathy will be working with clients on a wide range of projects relating to: domain name conflicts; challenges and opportunities likely to be encountered in connection with new top level domains; website protections; and Free Speech and intellectual property issues in the Internet age.  And, if the Blogmeister has anything to say about it, she’ll be a regular contributor here.

She can be reached at 703-812-0476, by email at, or at Skype ID Kathy.kleiman.

CRB Announces Proposed NCE Copyright Rates for 2013-2017

Comments, objections, due by May 25, 2012

If you’re a noncommercial educational (NCE, a/k/a “public”) broadcaster, heads up. The Copyright Royalty Board (CRB) has issued proposed rates and terms for the use of various copyrighted works by public broadcasters from January 1, 2013 through December 31, 2017. You’ve got 30 days – to May 25, 2012 – to sift through the complex series of rate schedules the CRB has put on the table.

So just what’s on the table? The rates that NCE broadcasters will have to pay to copyright holders (through those holders’ agents, including ASCAP, BMI and SESAC) for the right to broadcast, during 2013-2017, the underlying music and lyrics in all those copyright holders’ songs. (Technically, the CRB proposal also covers the use of pictorial, graphic and sculptural works, but those tend to have less impact on broadcasters.) For the CRB’s purposes, the universe of NCE broadcasters encompasses all entities treated as NCE licensees by the FCC, including educational institutions and large scale public radio and TV licensees.

The proposed rates are the product of an arcane ratemaking process that began on January 5, 2011. First, the CRB invited potentially interested parties to, in effect, sign up to participate. Who showed up? The usual suspects. For the copyright holders, there were: ASCAP; BMI; SESAC; the National Music Publishers Association and the Harry Fox Agency; and the Church Music Publishers’ Association. Broadcasters on board included: the Educational Media Foundation; NPR/PBS/CPB; the National Religious Broadcasters Noncommercial Music License Committee; the Catholic Radio Association; and the American Council on Education. 

The CRB then turned all the players loose for a three-month negotiation period. The goal was to see if the parties could come to agreement on the rates to be applied to the various subsets of noncommercial broadcasting.  Some specific agreements were reached between specific public broadcasting entities and specific copyright owners (or their representatives). Those were not, and will not be published, in the Federal Register, as their reach is limited to the particular parties to the various agreements.

The more generally applicable agreements are submitted to the CRB for its approval.

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Royalty Battle Royal: SiriusXM vs. SoundExchange

 One monopoly sues another -- for antitrust violations!  Is this a great country or what?  The Swami weighs in.

In some confrontations, it’s tough to say who to root for. Godzilla vs. Mothra, for instance. Or Duke vs. UNC. Or Liverpool vs. Manchester City.   (For the record, I’m going with (1) Godzilla, (2) UNC and (3) a draw with a number of red cards and several non-career threatening injuries thrown in for good measure.)

And now we have SiriusXM vs. SoundExchange.

SiriusXM – the monopolistic satellite radio provider that many radio broadcasters view as an archenemy – has sued SoundExchange – the monopolistic digital music licensing agency that many radio broadcasters view as an archenemy. SiriusXM’s claim is that SoundExchange (along with a co-defendant, the American Association of Independent Music (A2IM)) has engaged in antitrust violations and tortious interference with prospective economic advantage.

(The notion that SiriusXM, an entity created by the merger of the only two satellite radio providers, would complain that somebody else is violating the antitrust laws is rich with irony. But I digress.)

It’s still way too early for me, the Swami, to try to predict how this suit might eventually end up. But I don’t think it’s too early to imagine who the overall winners and losers might be as this litigation plays out. We’ll get to that in a minute.

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Access of Evil? FCC Unveils NOITALS

Don’t be surprised when Broadband the FCC Cat pops up on your screen.

The Commission has long bemoaned the fact that the Great Unwashed are “woefully ignorant” of the nitty-gritty details of their Internet access. Not for long. That bell you just heard was signaling the start of classes at the University of FCC, Online Division. Attendance is required. Prepare to get schooled.

In a surprising move – made all the more surprising by the low-key way in which it was disclosed – the Commission is taking aggressive steps to correct the rampant problem of high tech know-nothingism.

Meet NOITALS – the Nationwide Online Information Tracking and Logistics System. (Apparent pronunciation: “KNOW-IT-ALLS”.) In a public notice announcing, among other things, an expansion of the 2012 Measuring Broadband America Performance Study of Residential Broadband Service in the U.S., the Commission mentions NOITALS, pretty much in passing, without any fanfare at all. The Commission plans to use NOITALS to measure everybody’s Internet access speed, along with other parameters of Internet performance). 

How’s it going to do that? 

It seems that NOITALS enables the Commission to see what’s going on in each individual computer, nationwide, without the intervention of the computer’s user.

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Copyright Office: We Have a List . . .

“Specialty station” list updated; MPAA objections rejected

As we reported last November, the U.S. Copyright Office (CO) was then in the process of updating its list of “specialty stations”. Those are stations that, when carried on cable systems as “distant signals”, trigger lower royalty burdens for the cable operator than other “distant” stations do. (Check out our earlier post for a more detailed explanation of how that works.) 

The CO has now completed its updating process. In a Federal Register notice, it has announced that all stations that had claimed to be “specialty stations” will be included in its official listing. This should not come as much of a surprise, since the CO has long accepted self-certifications from stations looking to get on the list.  Think of it as a kind of honor system.

That didn’t stop the Motion Picture Association of America (MPAA) from objecting to several of the proposed additions to the list. MPAA’s members receive distributions from the copyright royalty pool generated by (among other things) distant signal royalty payments. So MPAA’s members benefit more from distant signal carriage charged at full copyright rate, rather than carriage at the discounted “specialty station” rate. In its objections, MPAA urged that the CO both can and should wade into – and independently resolve – disputes concerning “specialty station” status. Needless to say, MPAA also argued that some of the claims of “specialty” status were just self-serving noise.

Sorry, the CO has now ruled – we stand by the position we’ve always taken, which is that we don’t have any legal authority to resolve disputes of that kind. We will maintain our self-certification honor system. Here’s our new specialty station list, which includes the stations whose status was contested.

What happens now?

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Aereo vs. the Broadcasters

Another day, another way to move video to the Internet . . . and another set of lawsuits.

Welcome to the latest bout in the Alternate Video Delivery System Smackdown Series. In this corner, the upstart challenger, Aereo (formerly known as Bamboom Labs, Inc.); in that corner, pretty much every major broadcast network.

Aereo is the latest innovator seeking to bring video content from one source (in Aereo’s case, over-the-air broadcasting) to subscribers in some alternate fashion – a fashion that ideally makes it attractive enough to cause consumers to fork over $12/month to Aereo. Aereo plans to deliver a full (or at least nearly full) array of over-the-air broadcast programming to you through the Internet. That, of course, means that you would be able to access that programming through whatever Internet-accessible device you might choose – tablet, smartphone, desktop, big screen TV in your living room, etc. The programming could be streamed as it is being broadcast, or it could be accessed on a delayed basis, just like shows you might otherwise save on a DVR.

And that’s Aereo’s angle: as Aereo sees things, its service “enables consumers to access broadcast television via a remote antenna and DVR”. Actually, make that “cloud DVR”, a term Aereo slips into its on-line response to the two lawsuits brought against it by the major TV networks.

What exactly is a “cloud DVR”? It’s a quasi-imaginary device – actually, a combination of devices – that affords the user the ability to access streamed or recorded content from broadcast stations through the Internet. A crucial element of the technology is a teeny-weeny antenna – about the size of a dime (see illustration, above, taken from the Aereo website) – that Aereo uses to receive OTA broadcasts. When you subscribe to Aereo, you are assigned one such antenna – it’s yours and (supposedly) nobody else’s. It’s hooked to “massive amounts of storage and super-fast Internet connections”. You are then given an “elegant interface” with which to “control your antenna”. You can pick a channel to watch or you can tell it to record for later viewing.

So it’s just like sitting in your living room, fiddling with your cable remote, right?

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RMLC-ASCAP Party Like It's 2009

New deal sets ASCAP rates through 2016

The Radio Music License Committee (RMLC) and the American Society of Composers, Authors and Publishers (ASCAP) have announced a deal regarding the rates and terms to be paid by radio stations for the right to perform musical works through 2016. You may recall one of our earlier discussions of this topic; if you do, you're already aware that setting these rates and terms is a rather extensive process, since ASCAP (and BMI) must have its agreements approved by a United States District Court for the Southern District of New York, a condition of a consent decree which settled a lawsuit back in the 1940s.   

This particular go-round seemed pretty intense, even by RMLC-ASCAP standards. After the prior agreement expired at the end of 2009, a "bridge fee" was set as both sides began dual sets of negotiations -- first working on an interim rate that would be in place until this permanent deal was reached. 

We've heard rumors for a few weeks that the final deal was reached but, of course, nothing is final until the Southern District says it is final. The Southern District has spoken and we think broadcasters will like what they hear. 

According to a press release issued by RMLC, the broadcast industry will pay rates closer to those paid in 2009 than what they'd expect in 2012. In fact, broadcasters are getting a rebate! Part of the deal involves a $75 million credit against amounts paid in 2010 and 2011, which will be instituted in increments of $ 15 million per year (and is on top of $ 40 million in industry-wide rebates implemented when the interim rate was approved in 2010). So check your statements, there should be an immediate fee decrease of about 30% per station starting this month!

Other aspects of this deal that broadcasters will find attractive:

Those using the “blanket license”" (most stations and probably all music stations) will be especially happy to know that the calculation and reporting process will be simplified: you'll now pay a straight 1.7% of gross revenue. The icing on the cake is the ability to deduct 12% for revenue from multicasting sources and a 25% for revenue from new media.

Those using the “per program” option (mainly news and talk stations) will also pay a straight percentage of gross revenue, in this case its 0.2958% with the same deductions as above.

Finally, agreement will allow for greater innovation in terms of expanding into new media

Radio broadcasters should look for new license forms to be available within a month and should also hope that this will spur a similar resolution in the RMLC's negotiations with BMI.  They should also thank Bill Velez and the folks over at RMLC for some great representation on their behalf.

Super Bowl® Trademarks: By the Numbers

[Blogmeister’s note: Kevin Goldberg, our resident Swami when it comes to predicting Supreme Court decisions, is also our guru (Swami? Guru? Yes, he’s that multicultural) for all things trademark. Since it’s That Time Of The Year, we asked him to re-visit the NFL’s perennial effort to control the use of the term “Super Bowl®”. The Swami initially larded his response with tons of references to Tim Tebow in a transparent attempt to attract all kinds of hits to his post. But we’re obviously above the kind of cheap ruse that would depend on repeated use of the name “Tim Tebow” to improve CommLawBlog®’s hit stats. Accordingly, we have edited out of Kevin’s post the name “Tim Tebow” (who plays for the Denver Broncos® – who aren’t even playing in the Super Bowl® this year. Everybody knows it’s the New York Giants® and the New England Patriots®, featuring Tom Brady).]

Football is a game of numbers. Here are some interesting Super Bowl®-related numbers for you:

455      The number of trademark applications that have been filed listing the “National Football League” as the applicant/owner

141      The number of federally registered trademarks owned by the “National Football League”

9          The number of trademarks containing the word “Super” that are owned by the National Football League

11        The number of international classes in which these trademarks exist

Ideally you’ve figured out by now that this post serves as our annual reminder – for the fourth year running – that the National Football League takes its trademarks very seriously. The league uses those marks to protect its exclusive right to use the term “Super Bowl®”. As the NFL®  sees it, that right extends not only to the game itself, but also to a mind-numbing range of stuff from clothing to jewelry to party invitations/napkins/decorations/posters to sporting goods to a concert series to things like . . . television broadcasting services.

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Webcaster Wake-Up Call! SoundExchange Reports and Payments Due Soon

Meet the new year, same as the old year, as webcasting royalty regimen remains largely unchanged.

“Evergreen” stories – The kind of stories that recur regularly. Stories like “NFL reminds non-paying universe never to utter the words ‘super bowl’”.  You’ve seen them before.

And if you haven’t yet figured it out, you’re reading one right now.

Welcome to the annual reminder materials that have to be filed with SoundExchange under the statutory license applicable to the digital transmission of sound recordings. This applies to webcasters and streamers.

The fact that this is an evergreen, of course, doesn’t mean you should stop reading right now. Quite the contrary. An evergreen – well, at least this evergreen – comes back every year because it relates to stuff that merits attention every year. 

And the webcasting requirements are especially right for the over-and-over-and-over evergreen treatment because I know that, no matter how often I expound on the subject – here on CommLawBlog, at broadcast conferences, in e-mail outreach – there are broadcasters out there who still don’t get it. Maybe they’re unaware of the requirements, maybe they’re aware of but confused by them – or maybe they regard the requirements as something less than “real law”, despite the fact that those requirements have become more and more ingrained into the fabric of the radio industry with each passing year.

Whatever. My mission is to do what I can to lay out the annual SoundExchange filing requirements so that everybody that has to comply with them can know what to do. 

Let’s get to it.

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ICANN's New Uniform Rapid Suspension System

A new way to put the quick kibosh on cybersquatters – but it will help if you’ve registered your trademarks first

For years I’ve urged readers to register their major identifiers – corporate names, slogans, call signs, etc. – as federal trademarks. (Check out a couple of my posts dating back to 2007 and 2009 if you doubt me.) And now the time has come to beat that drum again, with the impending roll-out of a new “Uniform Rapid Suspension System” (URS) designed to make it easier to protect such marks against cybersquatters. 

Cybersquatters are folks who register Internet domain names based on recognizable trademarks or tradenames belonging to others. Their goal might be to use the familiarity of the underlying mark to attract a lot of traffic to their site, or it might be to try to sell the domain name to the owner of the trademark/tradename, usually at a ridiculously inflated price.

The Internet Corporation for Assigned Names and Numbers (ICANN) – the international body that regulates domain names, among other things – has a system in place to help rightful holders of trademarks targeted by cybersquatters. That’s the Uniform Domain Dispute Resolution Policy (UDRP),which provides initiate a reasonably quick arbitration process aimed at squelching unauthorized use the mark and transferring control of the infringing domain name to the trademark owner. (Additionally, trademark owners can also sue for infringement in federal court – if they have the time, money, patience and masochistic inclination to undertake a serious piece of litigation.)

But ICANN is reportedly on the verge of implementing the URS.

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Update: Mission Abstract Infringement Suit Stayed

Patent infringement lawsuit put on hold while Patent Office decides whether there were any patents to infringe

Mission Abstract Data (previously, now, and always, to us: “MAD”) has been dealt another setback. MAD is the company trying to hold pretty much the entire radio broadcast industry accountable for alleged patent infringement. Now, less than a month after the United States Patent and Trademark Office (PTO) rejected several of the claims underlying MAD’s patents (those would be Nos. 5,629,867 (the 867 patent) and 5,809,246 (the 246 patent), the U.S. District Court for the District of Delaware has granted a stay sought by radio broadcasters who are on the wrong end of MAD’s patent infringement suit. As a result, that case is now on hold pending final resolution of the PTO’s reexamination.

But broadcasters might want to hold off on the celebrations just yet.

While many figured that a stay in the Delaware infringement action would effectively resolve that litigation in favor of the defendant broadcasters (and secondarily kill off MAD’s efforts to extract licensing fees from the rest of the industry), we’re not convinced that you can read that much into the court’s opinion. Sure, it’s a blow to MAD, which could have used a victory to put further pressure on the defendants and potential licensees to settle rather than litigate.  But it’s not the slam dunk that many expected.

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Copyright Office: Making a List, Checking It Twice

CO seeks comments on latest “specialty station” list

Like Santa Claus, Oskar Schindler, David Letterman and Joe McCarthy, the Copyright Office (CO) has a list. The CO’s list consists of TV stations which claim to be “specialty” stations, a desirable status for some in the copyright world (more on that below). The CO is in the process of updating its list, and it has invited comments on some possible changes.

Not that the CO is in the business of deciding who should or shouldn’t be on the list. 

But before we get into all that, a bit of history may be in order. Back in the 1970s, the FCC’s regulation of the cable TV industry included limits on carriage of TV stations beyond the reach of their over-the-air service (known as "distant signals"). Those rules had been adopted against the background of a continuing policy debate about the implications of extended-area cable carriage for copyright owners, who like to be able to restrict distribution of their product, and the public, which likes to be able to watch more stations. Generally speaking, if a cable system carried a distant signal, the system had to pay more in copyright fees. But the FCC recognized that cable carriage of certain “specialty stations” might be desirable even if they originated far away from the cable system, because specialty stations are usually not locally available outside the largest markets. Accordingly, the Commission established a regulatory classification for such stations, which were defined as stations that

generally carrie[d] foreign language, religious, and/or automated programming in one-third of the hours of an average broadcast week and one-third of the weekly prime-time hours.

With the enactment of an overhaul of the copyright law in 1976 that largely eliminated prohibitions on distant signal carriage while imposing a higher royalty premium for such carriage, the need for Commission involvement waned, and in 1981 the FCC repealed its distant signal carriage rules and generally stopped worrying about “specialty stations”. A station’s self-identification as a “specialty station” may still come into play in some limited circumstances before the FCC – for example, if such a station seeks to be added to a DMA for must-carry purposes, its burden might be a tad lighter – but for the most part it’s a dead issue at the FCC.

Not so in Copyright Land.

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Mission (Abstract) Impossible?

PTO Office Actions threaten to gut MAD claims of patent infringement

Bad news for Mission Abstract Data (whom we’ll once again dub “MAD”). They’re the folks claiming to own two patents supposedly being infringed by almost every radio broadcaster in the country. (Unclear on the background here? Read our last two posts on the subject. We’ll wait for you.)    

In this, our third installment of “As the Patent Turns”, there’s been a major development in MAD's quest for broadcast domination. Those patents it claims to own? Turns out MAD may have spoken too quickly. 

When last we left MAD and its targets, the United States Patent and Trademark Office (PTO) had just announced that it would be reexamining the underlying patents, raising the possibility that the foundation of MAD’s whole approach is nothing but, well, nothing.

We told you to stay tuned for the next exciting installment, and now here it is.

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PTO Taking Second Look at Mission Abstract Data Patents

“Reexaminations” could put the kibosh on MAD patent infringement claims against radio stations

Has the United States Patent and Trademark Office (PTO) upended a litigation strategy threatening to upend the radio broadcast industry? It’s still too early to tell, but word out of the PTO could be bad news for Mission Abstract Data. You remember the folks at Mission Abstract – they’re the ones looking to obtain “licensing fees” from radio broadcasters using automated programming software (which at this point can be defined as “all radio broadcasters”).

I wrote about Mission Abstract (we called them “MAD” back then – we’ll keep doing it here) a couple of two months ago. To recap: MAD claims that it has patents covering pretty much any kind of computer-based radio program automation. Wielding that impressive claim, MAD filed a patent infringement lawsuit against several of the largest radio broadcast groups in the country. The case is still in its early stages. 

But MAD may be looking to invite a lot more folks to its little party. As I reported, MAD had already been contacting a “second round” of broadcasters, mainly smaller station groups, to offer a “licensing agreement” containing a release from any legal action. And more recently, we understand that yet a third round of broadcasters have lately been receiving similar come-ons from MAD. (The third round includes smaller broadcasters, even some single station licensees.) While no overt threats of new lawsuits are made, it’s not too hard to get the impression that declining the offer of a licensing agreement could get you a seat at the defendant’s table if another round of lawsuits gets filed.

Best I can tell, none of the “second round” broadcasters have signed the proffered licensing agreement.  (I’d have expected a MAD-issued press release issued by MAD if that had happened – what better way to spur others to go with the flow?)  

Meanwhile, the patent infringement lawsuit against the really big broadcast groups has inched forward with no real surprises or important action points: discovery’s gotten started, some court-ordered settlement conferences, too – but there’s been no indication that either side has gained any advantage.

Until now.

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We’ve told you before and we’re telling you again: federal trademark registration of your call signs, slogans and other identifiers is a GOOD IDEA. Here’s yet another reason.

As any right-thinking broadcaster should know by now, it’s important to register – in the federal trademark system – your call signs, slogans and the other station identifiers you’ve used to create your station’s identity. It’s not like I haven’t harped on that before – not once, not twice, but three times. Still, I suspect that there are some of you out there who resist my urging – so this time, I’m going to turn to one of the oldest tricks in the book to get your attention:


Sorry about that, but this is really important, because yet another reason for registration has entered the scene: you don’t want your call sign associated with an adult-oriented website, do you?

It could happen.

The organization responsible for the system used in naming Internet sites – that would be the Internet Corporation for Assigned Names and Numbering (ICANN) – recently established a new “top level domain”, i.e., the last part of your basic internet web address. Think “.com”, “.org”, “.gov”, “.edu”.

Now you can add “.xxx”, a domain that will be reserved for “adult-oriented websites”.

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TV Stations' Cable and Satellite Copyright Royalty Claims Due August 1

As July slips into August, it’s time again to remind television broadcasters that Copyright Royalty Claim forms – for cable retransmission copyright royalties and/or satellite copyright royalties earned during 2010 – are due at the Copyright Royalty Board by August 1, 2011 (since July 31, the normal deadline, falls on a weekend this year). This is your opportunity to lay claim to a share of the annual fund from which television broadcast stations get paid for their programming that is retransmitted by cable and satellite service providers outside of their respective service areas.

In general, TV stations that are carried on cable systems as a distant signal, and those stations that provide programming to other stations that are carried as a distant signal, are entitled to royalty payments.  A cable system is “distant” vis-à-vis a station if the system is: (1) outside the station’s DMA; and (2) at least 35 miles from the station’s city of license; and (3) outside the station’s predicted Grade B contour.  Stations whose programming is carried on satellites to subscribers outside the station’s DMA are also entitled to royalty payments.

The Copyright Office encourages stations to file their Claim Forms online.  The forms can be found at:

If you need our assistance in preparing the forms, please let us know.

AstroTurf ® Filings Condemn AstroTurf ® Filings

Group that decries hidden interests keeps its true interests well hidden.

Here in Washington, we’re used to a certain amount of hypocrisy. It’s part of the atmosphere, like exhaust fumes from the high school tour buses.

But once in a while even we get taken aback. No, not about the debt-limit debate, although that also strains our tolerance. We are referring to an unusual spate of filings in one of the FCC’s rulemaking dockets.

The rulemaking itself is an inside-the-Beltway matter. The FCC allows interested parties to file views on its proceedings even after the published comment schedule has expired. These late submissions are called “ex parte” filings, from the Latin for “one-sided,” which they generally are. In the past, they offered a way to put useful technical and policy information before the FCC staff. With the advent of electronic filing, the ex parte process has also become a way for special interest groups speaking through complaisant individuals to flood the FCC with dozens, sometimes hundreds, of nearly identical statements.

The rulemaking in question asks for comment on whether groups filing ex parte statements should have to identify who they really are. After all, an organization called “Citizens for Better Phone Service” may in fact be a telephone company seeking relief from regulation. “Coalition for a Free Internet” may be a front for a cable company opposed to network neutrality rules. And so on. Such groups are often called “AstroTurf®” entities: an artificial construct masquerading as a grass-roots organization. (AstroTurf ® is a registered trademark, even if the registration doesn't cover this particular use of the term.)

In addition to the usual suspects – lobbying groups that make frequent ex parte filings with the FCC – this rulemaking has attracted well over 200 identical submissions signed by individuals. They all read as follows:

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Patent (Claims) Pending

Mission Abstract Data is asserting patent rights to automated radio programming systems – but its claims remain to be validated

Here’s a quick quiz for radio broadcasters: Mission Abstract Data. Ever heard of them? Does business as “DigiMedia”. Maybe that rings a bell.

You’ve probably never heard of them under either name. They don’t own a single radio station. Yet they might just become the most influential company in radio broadcasting this year.

That’s because Mission Abstract Data (MAD) is trying to enforce its rights in two patents granted in 1997. According to MAD, those patents are crucial to the automation of radio programming. So if you happen to be one of the many stations relying to any degree on program automation, you might be hearing from these folks sooner rather than later.

The patents in question are Numbers 5,629,867 and 5,809,246. They are very similar, with nearly identical descriptions of a system for “retrieval of music from a digital database”. They cover:

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Update: Felony Streaming Bill Steams Ahead

S. 978 passes Senate Judiciary Committee, heads to full Senate

Just last month we reported on the introduction of S. 978, the bill that would impose felony penalties for some unauthorized streaming of copyrighted audio or audiovisual content. We opined that the bill was likely be getting some attention and movement.

Right we were.

On June 16, S.978 passed the Senate Judiciary Committee by a simple voice vote, less than one month after introduction. Maybe not the fastest legislative action we’ve ever seen, but certainly fast enough to suggest strong prospects for passage in a Congress where any forward motion is news. It’s also worth noting that a “related” bill cracking down on copyright infringement – S. 968, the PROTECT IP Act of 2011 (short for “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011”, but you probably already had that figured out) – made it through that same Committee three weeks ago, so there’s a good chance that both could go to the Senate floor at the same time.

Check back here for updates – we’ll keep you posted.

More Trolls On A Roll

Four more decisions from U.S. District Judge Beryl Howell, thousands more disappointed "John Doe" defendants.  Welcome to Washington, DCT (District of Copyright Trolls)!

To paraphrase Chief Brody, they’re gonna need a bigger courtroom down at the U.S. District Court for the District of Columbia. That’s because Judge Beryl Howell has been at it again. As we reported last month, in March Judge Howell hung out the welcome sign in a big way for plaintiffs seeking to bring “John Doe” lawsuits alleging copyright infringements by 1,000+ unnamed defendants. And now she’s issued four more similar decisions in cases with as many as 5,000 defendants! (Check them out here, here, here and here.)

Welcome to D.C., your go-to spot for BitTorrent litigation. Troll out the red carpet!

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S.978: Sending Illegal Streamers Up The River?

Senate bill would criminalize unauthorized streaming.

The White House and Congress have finally managed to agree on something. We’ll concede that it’s a relatively minor issue . . . unless you’re engaged in the illegal streaming of copyrighted content, in which case you could be looking at up to five years, maybe even ten, in the Big House and a hefty fine to boot.

In March we reported on a “White Paper” in which the President’s U.S Intellectual Property Enforcement Coordinator laid out a number of “Intellectual Property Enforcement Legislative Recommendations”.   One of those recommendations: Congress should “clarify that [copyright] infringement by streaming . . . is a felony in appropriate circumstances.” 

The White Paper wasn’t clear whether the recommendation applied to music, video, or both. Nor did it say exactly what standard of culpability would apply. For instance, would innocent mistakes – the streaming of audiovisual content for which you thought you had cleared all copyrights – be subject to the felony penalty? We surmised that the Administration was mainly concerned with illegal streaming of video, which is occurring with increasing regularity but not technically punishable under existing law. (Federal criminal law currently applies to illegal file sharing or downloading, but not to instantaneous streaming.)

A bipartisan trio of Senators has now acted on the White House’s recommendation. On May 12, 2011, they introduced S. 978, which would amend 18 U.S.C. §2319 and 17 U.S.C. §506 to include streaming within the definition of felonious criminal conduct. (For those of you who keep track of such things, Minnesota Democrat Amy Klobuchar is technically the bill’s sponsor, but she is joined by fellow Democrat Christopher Coons from Delaware and a Republican from Texas, John Cornyn.)

The bill makes two fundamental changes involving 17 U.S.C. §506 (the section of the Copyright Act that defines “criminal infringement”, i.e., the kind of copyright infringement that can result in jail time) and 18 U.S.C. §2319 (the section of the federal criminal code that spells out the potential penalties for criminal infringement).

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Some More Observations About Copyright, Content Distribution And Technological Innovation

More signs of the need for a fresh approach to copyright licensing for audiovisual content

In recent months I’ve suggested – here and here, for example – that changes in the video delivery landscape around us demand a good, hard look at the various laws which govern transmission and, especially, retransmission of audiovisual content usually seen on television.   It’s fair to say that, while I don’t advocate any particular approach, I support change that brings the various laws in this area into line with the viewing habits of an increasing amount of television watchers.   

But that would entail a herculean effort involving potential changes to the regulations of two major government agencies: the FCC and the Copyright Office. The FCC would be looking, or re-looking, at such things as the definition of an MVPD as well as rules governing must carry, retransmission consent, fin/syn and program exclusivity. The Copyright Office would have to examine its regs covering cable and satellite compulsory licenses. Changes there and elsewhere would have to be justified in light of actual evidence that the media delivery landscape is changing.  (I’m sold on this, but – if you can believe this – the Administrative Procedure Act requires more than my personal stamp of approval).

So that’s why I’m happy to see signs of serious inquiry on two fronts.

 One such sign is the FCC’s Further Notice of Inquiry in the Matter of Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming (FNOI), released on April 21.   On its face, this is a pretty mundane request by the FCC for information relating to competition in the video marketplace. In fact, it’s the Commission’s 14th annual review since Congress first directed the FCC to conduct such reviews back in the 1992 Cable Act.

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Copyright, Content Distribution And Technological Innovation: The Need To Re-Think The Compulsory Licensing System

Signs point to tensions between the laws of the past and the technology of the present and future

Not to go all chicken little on you, but the world may be coming to an end – the world of copyright and compulsory licensing as we have known it for the past several decades, that is. I’ve been following the evolution of content delivery across all platforms (including the legal systems which underlie content delivery), and have in recent months noted a recurring theme: the legal rules governing delivery of content – and audiovisual programming, especially – are falling farther and farther behind the state of the technological art. Traffic rules developed during the horse-and-buggy days don’t really help anybody in an age of superhighways and high-performance cars. So maybe it’s time for legislators and regulators to roll up their sleeves and get to work developing a copyright licensing system for the 21st Century.

Examples? How about online streaming providers ivi, Inc. and, who have been trying to cram the square peg notion of an “on-line cable system” into the round hole system of traditional compulsory licensing. They’re clearly outliers making long shot attempts to revolutionize television viewing. From a legal standpoint they’re still on the outside looking in, as both have been told by federal courts that they are not acting within the boundaries of the Copyright Act. Yet, as we reported on these cases, we prophesied that ivi.Inc and may simply be ahead of their time.

Our predictions weren’t far off the mark.

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Trolls On A Roll

With decision from D.C. judge, copyright trolls may have found a new go-to jurisdiction

Score one for the trolls . . . the copyright trolls, that is. A recent preliminary decision by U.S. District Judge Beryl Howell may lead those trolls to funnel much if not most of their litigation through the U.S. District Court in Washington, D.C. Judge Howell’s decision will almost certainly make it easier for the trolls to pressure their defendants – including even purely blameless defendants – into pre-trial settlements favorable to the trolls.

Disclosure: I know Judge Howell. It’s not like we’re friends or anything, but I did meet her when she was working on FOIA legislation with the Senate Judiciary Committee. She’s extremely smart, well-intentioned and easy to work with. 

But as the newest addition to the U.S. District Court in DC, she has certainly not endeared herself to those interested in First Amendment rights – which clearly includes me – with her recent ruling in Call of the Wild Movie, LLC, v. Does 1-1,062.

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Update: Comment Deadlines Set In Retransmission Consent Rulemaking

Three weeks ago we reported on the release of a Notice of Proposed Rulemaking (NPRM) addressing the thorny issue of retransmission consent.  With the publication of the NPRM in the Federal Register, the deadlines for comments and reply comments have now been set. Comments are due by May 27, 2011; reply comments are due by June 27, 2011. Additionally, if you would like to comment on the “information collection” aspects of the Commission’s proposals (in connection with the Paperwork Reduction Act), you have until May 27, 2011. Check out the Federal Register notice for details.

White House On Copyright: PRA, Yes! Illegal Streaming, No!

Administration white paper urges creation of performance right for broadcast of sound recordings

Last June, the White House officer charged with protecting “the ideas and creativity of the American public” – that would be the U.S Intellectual Property Enforcement Coordinator – issued a Strategic Plan on the enforcement of Intellectual Property. Prepared in coordination with a wide range of Federal agencies, the Strategic Plan examined existing laws to identify (among other things) “deficiencies that could hinder enforcement” of intellectual property (IP) rights. Following up on that initial effort, the White House has now issued the Administration's White Paper on Intellectual Property Enforcement Legislative Recommendations (White Paper), in which it offers suggestions for legislation to beef up IP enforcement.

Much of the 20-page report – which addresses such esoteric as corporate espionage, drug counterfeiting and criminal sentencing standards – is probably of limited direct interest to our readers. But two items in the White Paper do warrant attention here.

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Contemplating Life Without Compulsory Licenses

At Congress’s direction, Copyright Office opens inquiry on alternatives to compulsory licenses

While much attention in the MVPD/broadcaster world has recently been focused on the FCC’s inquiry into possible changes to the retransmission consent process, a separate proceeding is cranking up over at the Copyright Office that could eventually lead to far more fundamental changes to the must-carry/retrans system. The Copyright Office is exploring the possible elimination of the compulsory copyright licenses that form the core of the system that determines how, and by whom, over-the-air broadcast programming can be retransmitted. So while the FCC may be contemplating various changes, significant or otherwise, within the existing box, the Copyright Office is not just thinking outside that box; rather, it’s contemplating a situation in which that box no longer exists at all.

Are we surprised? Not at all (and not just because we have predicted eventual changes in this area as television delivery methods continue to evolve). Anyone familiar with the minutiae of STELA (i.e., the Satellite Television Extension and Localism Act of 2010) has seen this coming, because a provision (Section 302, if you’re looking) in STELA ordered the Copyright Office to report on possible “mechanisms” or “methods” that might be used to “phase-out” compulsory licensing requirements.  Are we scared? Not really, since this is just a very preliminary step in a process that might go nowhere.

Nevertheless, when a majority of both Houses of Congress makes noises about “phasing-out” the compulsory licenses, attention should be paid.

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Revising Retrans: The Process Starts

FCC proposes modest – but possibly significant – changes to rules regulating MVPD/broadcaster retransmission consent negotiations

The long-awaited Notice of Proposed Rulemaking (NPRM) addressing the thorny issue of retransmission consent has been released. When it comes to the ebb and flow of the on-going debate about the retrans system, some had hoped that the Commission might jump into the deep end while others had hoped that it would stay comfortably high and dry in the lifeguard’s chair – but it looks like the FCC isn’t inclined toward either of those options. Instead, it proposes, in effect, to dip its toe, maybe even roll up its pants to wade in a bit. In other words, even if some change in the retransmission consent negotiation process is possible, the likely scope of the change on the immediate horizon appears limited. 

Then again, the Commission has invited comments, so who knows where this may end up?

Retransmission consent is one component of the perennial tug-of-war between television broadcasters and multichannel video program distributors (MVPDs, i.e., cable, satellite systems, and the like) relative to carriage of broadcast programming on MVPD systems. Broadcasters periodically elect either “must carry” or “retransmission consent” status. Must carry status more or less guarantees carriage within the stations’ local markets, but without compensation to the broadcaster for such carriage. 

By contrast, retransmission consent allows broadcasters to negotiate for compensation for carriage, the risk being that carriage must cease if the parties can’t come to terms. Occasionally a broadcaster and a cable operator fail to reach an agreement; in that case, the cable operator must cease carriage of the station at issue, which in turn deprives cable subscribers of cable-fed access to the programming (including, in some instances, high profile items like the World Series, football play-offs, special award shows and the like). This typically results in a burst of consumer outrage, a bout of finger pointing between the cable operator and broadcaster, and a round of concerned statements from elected officials and the FCC.

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Goldberg On Webcasting On-Line

Webinar recording now available at SoundExchange site

Hey, it’s good news for all you webcasters who didn’t tune into the SoundExchange webinar on January 27 to catch FHH guru Kevin Goldberg address such useful issues as protecting one’s business and the nitty-gritty of sound recording licensing! You’ve got a second chance, because SoundExchange has posted a recording of the session on its website. You can find it here. Check it out. (And next time, try to catch Mr. G live – we can’t promise you’ll get lucky like this every time he strews his pearls of wisdom hither and yon.)

Coming Soon: The Event-Of-Overriding-National-Importance-That-Shall-Not-Be-Named

 Heads up – the NFL is watching you . . .

It’s time for that most evergreen of January stories: the annual reminder that you have to be careful about using the words “super” and “bowl” together in any way. That’s because the NFL is on the look-out for “unauthorized” uses of its registered trademarks, and one of those trademarks happens to be “Super Bowl®”. We put “unauthorized” in quotation marks here because the No Fun League has a somewhat (how can we say this delicately?) expansive view of its own ability to prevent anybody from uttering those two words – a view which is not universally shared.

The League’s position, as far as we can tell, is that pretty much any non-news use of the Two-Word-Phrase-That-Shall-Not-Be-Spoken necessarily implies an affiliation with the NFL. To the NFL, this in turn apparently means that the NFL is absolutely entitled to control who can utter the Unutterable Phrase and when It can be uttered. Whether that view is supported by, say, the law is far from clear. (But, as Gene Pitney once cogently observed, in some instances “a law book [does] no good.”)

However the law might stack up on this, it’s probably best to view the NFL as you would the obnoxious loud-mouth jerk down at the other end of the bar who’s had a few and is loudly insisting that his knowledge of sports trivia is superior to everybody else’s. Maybe he’s right, maybe he’s not – but who wants to bother to find out?

So here’s what you need to know.

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Webcaster Wake-Up Call! A To-Do List For NONCOMMERCIAL Webcasters

New year brings filing deadlines for noncommercial webcasters

The beginning of another year brings renewed obligations for all broadcasters who are operating a non-interactive webcast (as opposed to an on-line service that provides interactive downloads or podcasts). That universe is populated by three separate and distinct types of webcasters, each of which has slightly different obligations from the others. Those three types are: (1) commercial webcasters; (2) noncommercial webcasters; and (3) noncommercial educational webcasters.

Important definitional note: For purposes of webcasting royalties, the distinction between commercial and noncommercial is not based on the nature of the underlying broadcast license. Rather, it’s based on the reporting entity’s status under Section 501 of the Internal Revenue Code. If a webcaster is exempt from taxation under Section 501, it is deemed to be NONcommercial when it comes to webcaster royalty matters. And if a noncommercial webcaster’s operation is substantially staffed by students, it is a noncommercial educational webcaster. This post is addressed to noncommercial licensees. (Simultaneously with this item we are also posting similar items for the other two types of webcasters – so if you happen to be commercial webcaster or a noncommercial educational webcaster, look elsewhere here on for a post addressed to your own particular situation.)

If you are engaged in the NONCOMMERCIAL WEBCASTING of one or more streams, your first filing of the new year – primarily consisting of an annual minimum fee statement of account with payment of $500 per channel – is due on January 31, 2011.  But your obligations continue throughout the year with statements of account and playlist reports of use required on a monthly basis. 

Noncommercial webcasters (unlike their commercial and educational counterparts) have several decisions to make. The eligibility requirements described below should be reviewed carefully.

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Webcaster Wake-Up Call! A To-Do List For NONCOMMERCIAL EDUCATIONAL Webcasters

New year brings filing deadlines for noncommercial educational webcasters

The beginning of another year brings renewed obligations for all broadcasters who are operating a non-interactive webcast (as opposed to an on-line service that provides interactive downloads or podcasts). That universe is populated by three separate and distinct types of webcasters, each of which has slightly different obligations from the others. Those three types are: (1) commercial webcasters; (2) noncommercial webcasters; and (3) noncommercial educational webcasters.

Important definitional note: For purposes of webcasting royalties, the distinction between commercial and noncommercial is not based on the nature of the underlying broadcast license. Rather, it’s based on the reporting entity’s status under Section 501 of the Internal Revenue Code. If a webcaster is exempt from taxation under Section 501, it is deemed to be NONcommercial when it comes to webcaster royalty matters. And if a noncommercial webcaster’s operation is substantially staffed by students, it is a noncommercial educational webcaster. This post is addressed to noncommercial educational licensees. (Simultaneously with this item we are also posting similar items for the other two types of webcasters – so if you happen to be commercial webcaster or a noncommercial (but not an “educational”) webcaster, look elsewhere here on for a post addressed to your own particular situation.)

If you are engaged in the NONCOMMERCIAL EDUCATIONAL WEBCASTING of one or more streams, your first filing of the new year – primarily consisting of an annual minimum fee statement of account with payment of $500 per channel – is due on January 31, 2011.  But your obligations continue throughout the year with statements of account and playlist reports of use required on a monthly basis. 

Here’s a list of the routine filing obligations facing a noncommercial educational webcaster:

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Webcaster Wake-Up Call! A To-Do List For COMMERCIAL Webcasters

New year brings filing deadlines for commercial webcasters

The beginning of another year brings renewed obligations for all broadcasters who are operating a non-interactive webcast (as opposed to an on-line service that provides interactive downloads or podcasts). That universe is populated by three separate and distinct types of webcasters, each of which has slightly different obligations from the others. Those three types are: (1) commercial webcasters; (2) noncommercial webcasters; and (3) noncommercial educational webcasters.

Important definitional note: For purposes of webcasting royalties, the distinction between commercial and noncommercial is not based on the nature of the underlying broadcast license. Rather, it’s based on the reporting entity’s status under Section 501 of the Internal Revenue Code. If a webcaster is exempt from taxation under Section 501, it is deemed to be NONcommercial when it comes to webcaster royalty matters. And if a noncommercial webcaster’s operation is substantially staffed by students, it is a noncommercial educational webcaster. This post is addressed to commercial licensees. (Simultaneously with this item we are also posting similar items for the other two types of webcasters – so if you happen to be noncommercial webcaster or a noncommercial educational webcaster, look elsewhere here on for a post addressed to your own particular situation.)

If you are engaged in the COMMERCIAL WEBCASTING of one or more streams, your first filing of the new year – primarily consisting of an annual minimum fee statement of account with payment of $500 per channel – is due on January 31, 2011.  But your obligations continue throughout the year with statements of account and playlist reports of use required on a monthly basis. 

Any commercial webcasting service operating as a broadcaster (that is, operating an FCC-licensed AM or FM station simulcasting at least one channel on the Internet) will fall into one of the two categories outlined below.

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Upcoming Appearance: Webcast Copyright Maven Kevin Goldberg To Participate In SoundExchange Webinar

 Hey all you Webcasters – Listen up! Kevin Goldberg, FHH’s resident expert on all things webcasting, will be participating as a “special guest” in a webinar conducted by (drum roll, please) SoundExchange.  SoundExchange, of course, is the non-profit performance rights organization that collects statutory royalties from webcasters (as well as satellite radio operators like SIRIUS XM, cable TV music channels and similar platforms for streaming sound recordings).  It offers free webinars to provide the webcasting community insight into the requirements of the Copyright Act.  Kevin will be discussing some “frequently encountered problems or questions" that he receives from webcasters across the country. The webinar is scheduled for Thursday, January 27 at 2:00 p.m. (ET). 

If you’re a webcaster and want to hear the real deal from the people that matter, you'll want to be on the line for this event. (Did we mention that it’s FREE?)  You can register here. (When you sign up, you can also submit questions that you’d like Kevin to answer during the webinar.)

The Webcasters' Next Five-Year Plan

Copyright Royalty Board announces webcast royalty rates for 2011-2015

Yo, all you non-interactive webcasters thinking about your budgeting for, say, the next five years: the Copyright Royalty Board (CRB) has announced the rates and terms that will apply to your operations for the period January 1, 2011-December 31, 2015. Check out the table below for details of the CRB’s “Initial Determination of Rates and Terms in the Matter of Digital Performance Rights in Sound Recordings and Ephemeral Recordings” (Webcasting III).

In getting this decision out as quickly as it did, the CRB has managed to do two things this time around that it failed to do in the ratemaking proceeding for 2006-2010.  First, it managed to crank out a final result in a timely fashion. (By way of contrast, the deecision setting the rates for 2006-2010 (“Webcasting II”) wasn’t published in the Federal Register until May, 2007, at which point it had to be applied retroactively to the preceding 16 months or so.)  And second, the CRB appears to have achieved relative consensus. (Again by way of contrast, Webcasting II resulted in both a two-year court challenge and an attempted legislative response).

As some psychologists tell us, even a worm can learn. And that adaptive phenomenon may be at work here as well. The CRB’s ability to achieve a quick and seemingly harmonious result almost certainly derives from its previous experience. Recall that the Copyright Act mandates that royalty rates for non-interactive webcasters be based on a “willing buyer/willing seller” standard, a standard that calls for rates that “most clearly represent the rates and terms that would have been negotiated in the marketplace”.  The rate system adopted in Webcasting II was attacked as contrary to that statutory mandate.   But eventually a series of webcaster settlement agreements were struck among various sectors of the webcasting industry (including both commercial and noncommercial broadcasters), so the heavy lifting was done: those agreements, negotiated by the private parties at arms’ length, provided a mutually agreeable resolution between willing buyers and willing sellers.

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TRO Slows Down

But (some of) the show still goes on at Internet cable operation

Bad news for On November 22, a federal judge in New York ordered it not to “infring[e] by any means, directly or indirectly”, any copyrights owned by CBS, NBC, ABC or Fox. Judge Naomi Reice Buchwald made sure that the scope of her order included (but wasn’t limited to), the “streaming over mobile telephone systems and/or the Internet of any of the broadcast television programming in which any plaintiff [that would be any of the networks] owns a copyright”.

The order – technically termed a Temporary Restraining Order or (among the cognoscenti) a TRO – will be in effect pending a full hearing on the nets’ related request for a preliminary injunction against

This isn’t necessarily the end of the road for, though.  As we pointed out when we first described to our readers last month, there are many moves to be made on the various litigation chessboards already in play.  And even in this particular case, a TRO is just a first step in the process. The networks have asked for more permanent relief – in the form of an injunction – against’s allegedly infringing activities. But before an injunction can issue, the court will let all the parties submit written arguments and then hold a hearing. The hearing date hasn’t been set yet, but the judge’s order specifies that all papers must be filed by December 13, so it doesn’t look like there’s going to be much foot-dragging here.

Nor does the fact that a TRO has issued necessarily mean that the court will issue an injunction. It just means that the judge was satisfied that the networks had a good enough case to warrant putting a hold on’s activities until a hearing could be held to sort everything out.

According to a statement issued by, it has “temporarily ceased retransmission of free network television” on its service. It’s still “open for business”, though, relying on its own “library of content” along with several independent broadcasters who have apparently signed up with it. Check back here for updates.

Beware The Copyright Troll

Aggressive litigants may pose problems for the careless and unwary

There’s a new monster on the prowl, and you or your business could be its next victim. Don’t bother looking over your shoulder, because you won’t see it coming. The first you’ll know about it will be when the threatening letter arrives, or perhaps the notice of the Federal lawsuit, or the subpoena. 

And at that point, it may be too late.

We’re talking about the Copyright Troll, a recent unfortunate phenomenon of the Internet Age identified several years ago and recently brought into clear focus through the vigilant efforts of the Electronic Frontier Foundation (EFF), in particular, as well as other protectors of our civil liberties.

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NAB Term Sheet: Roadmap To Performance Right?

A hard bargain: Proposal would accept new performance right burden for broadcast while easing burden on non-broadcast side.

The NAB has endorsed a “Term Sheet” which, IF fully adopted and implemented by all concerned (note the big “if”), would establish the existence of a “performance right” requiring radio licensees to pay royalties to musical artists (in addition to composers). 

And from that I think it’s safe to conclude that, while we have a ways to go before this becomes reality, there will one day be a performance right adopted into copyright law.  Despite the NAB’s continued insistence that it opposes the concept of a performance right – and despite the fact that the Term Sheet is, at least for the time being, still just a unilateral proposal and not a universally-embraced agreement – I’m convinced that a performance right will happen. This isn’t an endorsement or repudiation of the concept. It’s just a gut feeling of inevitability. My real questions involve “when” and “how much”.

The NAB’s Term Sheet, issued and delivered to the musicFirst Coalition on October 25, 2010, is couched as a “take it or leave it” offer to jointly move the Performance Rights Act (PRA) through Congress. As I’ve said before, taking affirmative steps to resolve the long-running/long-rancorous PRA issue in Congress may not be a bad thing. That’s especially true as long as the NAB (a) continues to hold the upper hand on the Hill vis-à-vis the PRA, and (b) takes care to ensure that all of its members, big and small, are satisfied that their interests are being adequately protected.

For now, the NAB must feel it does have that upper hand: the Performance Rights Act is not likely to pass in 2010, so if the music industry wants some performance right sooner rather than later, it will have to work with, not against, the NAB.  But is the NAB’s offer a show of strength or a retreat in the face of inevitability? 

Let’s take a look at the major provisions of the Term Sheet, which amounts to an outline of performance rights legislation that the NAB (and, if it signs on, musicFirst) would seek to push through Congress.

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Another Online Service Hoists "Cable" Flag Of Convenience joins ivi TV in claiming status as cable carrier, streams OTA broadcast content online 

Online service = cable company? The concept has yet another proponent –, Inc. (FilmOn).  Launching an online service featuring over-the-air content (in late September, just in time for the start of the new TV season), FilmOn has joined ivi TV in the fray over the alleged right of the upstart online companies to webcast broadcast programming to subscribers. And already FilmOn is on the wrong end of a lawsuit brought by folks looking to nip that claim in the bud.

The result could accelerate a final and authoritative disposition of the issue, one way or the other.

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Poison ivi?

Would-be Internet cable service causes irritating rash among broadcasters and programmers

A Seattle-based Internet company – ivi TV (ivi) – has popped up with a novel theory: ivi thinks that its online-only service is the functional equivalent of a cable TV system. Relying on that theory, ivi is claiming that it has a statutory right to retransmit over-the-air broadcast programming. Suffice it to say that, if validated, that theory could radically alter the broadcast carriage landscape as contemplated by the Copyright Act.

Coming out of nowhere with a bold stance, a strong message and, it seems, at least moderate funding, ivi has managed thus far to irritate major networks, broadcasters and even sports leagues. Not surprisingly, it has found itself on the receiving end of several “cease and desist” letters. 

But rather than fold, ivi has upped the ante. It has effectively gone “all in”, asking a Federal District Court in Washington State for a declaratory judgment that ivi hasn’t infringed anybody’s copyrights and that it is, in fact, entitled to retransmit over-the-air programming. 

The question is whether the company can cash out even if it wins this hand.

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Déjà Vu All Over Again

The Copyright Royalty Board (CRB) has announced that noncommercial webcasters must pay a $500 per channel annual minimum fee to perform copyrighted sound recordings during the 2006-2010 rate term.  Big deal? Not really. Why not? Several reasons:

  1. The 2006-2010 rate term is ending in about three months, with a ratemaking proceeding ongoing to determine the rates applicable to webcasting during 2011-2015 rate term.   So this “new” annual per channel minimum may change sooner rather than later (though we actually doubt it). 
  2. We’ve put “new” in quotation marks above because the original decision of the CRB, adopted back in 2007, set the annual minimum fee for both commercial and noncommercial webcasters at $500 per channel per year – so it’s not like anybody should really be surprised at the concept of such a fee.
  3. When the CRB’s 2007 decision was challenged in federal court, the only aspect of the decision remanded to the CRB for more consideration was the amount of the annual minimum payment – at which point we predicted that the CRB would simply reinstate the $500 per channel annual minimum fee.
  4. Before the CRB could validate our prescience, SoundExchange (representing the copyright owners) entered into settlement agreements with several types of webcasters – and each of those agreements provided for a $500 per channel annual minimum fee. This is important not only because it made the most recent CRB ruling easy to predict but also because it means that, technically, that ruling applies only to those noncommercial webcasters who hadn’t already entered into one of the three noncommercial webcasting settlement agreements.
  5. When the CRB did wrap up the initial phase of its post-remand chores – relative to the fee to be applied to commercial webcasters – it reinstated the $ 500 per channel annual minimum.

So the re-imposition of the $500 fee for noncommercial webcasters is not really an earth-shattering or completely unexpected surprise.  In fact, its actual impact may be extremely limited, since most noncommercial webcasters probably assumed they were on the hook for a $500 annual minimum payment for each channel anyway, budgeted for it accordingly, and made the 2010 payment without a second thought.

Why bother to post about the CRB’s decision then? Because it does provide a couple of points to consider.

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The NAB And The PRA: What's Up With That?

Brilliant stratagem or craven sell-out? It’s too soon to tell – so concentrate and ask again later.

Despite the fact that things on the Performance Rights Act (PRA) front remain quiet down on Capitol Hill, talk about the PRA has been burning up the trade press and the blogosphere lately. The reason? Reports that the National Association of Broadcasters (NAB) sat down with representatives from the music industry to discuss, among other things, the question of performance rights. Throw in a statement from an NAB spokesman alluding vaguely to “possible alternatives to pending legislation” (i.e., presumably, the PRA), and you’ve got the grist for a blog-tastic free-for-all in which anybody and everybody has an opinion, even though most lack a complete picture of exactly what might be going on.

CommLawBlog has done its fair share of writing on the PRA, but it’s been a while. In the midst of the sturm und drang, I think it might be useful to clarify what we know and what we don’t know before the chatter gets out of hand (and if you know something that we don’t, feel free to chime in in the comment section). 

Here’s what we know:

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Image Rights Litigation Update: Former Buccaneer Claims EA Raided his Rights

Tony Davis says video giant owes him for using his 1979 persona in Madden ’09

It’s an annual occurrence. Like when the circus comes to town. Only more lucrative. The release of a new version of EA Sports’ popular “Madden NFL” video game. 

And just as the circus brings with it a certain amount of mess to clean up and (at least these days) controversy and litigation, so too does Madden NFL. It seems that each new release triggers an inevitable lawsuit by one or more current or former athletes who feel that their rights are being violated by the makers of this video game (or other similar media). So prevalent are these lawsuits that it’s almost impossible to keep track of things, or know who all the players are, without a scorecard. (Fortunately for you, we’ve prepared a scorecard showing where most of the major currently-pending image rights cases stand. Check it out here.) 

The list includes suits filed by former college football and basketball players against EA Sports, by former pro football players against NFL films, by current pro football and baseball players against fantasy sports websites. So that’s former pro athletes, former college athletes and current pro athletes suing video game makers, fantasy sports purveyors and filmmakers, in almost every combination. Has this genre of lawsuit finally run its course?

Apparently not.

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BMI's Interim Fee Sinks In Sync With ASCAP's

At last, another piece of the ongoing ASCAP/BMI ratemaking puzzle has fallen into place – at least for a while. Last month the good folks at the Radio Music License Committee negotiated a final interim deal with BMI, good until a final non-interim deal is worked out and approved. The new interim arrangement – which replaces the old interim deal (which apparently is properly referred to as a “provisional interim” deal) – should stabilize things for the foreseeable future.

And the good news is that the new interim deal is better than the old one, so life is good for the time being.

The ASCAP/BMI ratemaking proceedings will determine just how much radio broadcasters will be paying in royalties ASCAP and BMI for performance of musical works for the period beginning January 1, 2010. We’ve been following the goings-on closely, so closely, in fact, that we think we finally understand what’s going on.

Let’s review the bidding so far.

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TV Stations' Cable and Satellite Copyright Royalty Claims Due August 2

As July slips into August, it’s time to remind television broadcasters that Copyright Royalty Claim forms -- for cable retransmission copyright royalties and/or satellite copyright royalties earned during 2009 -- are due at the Copyright Royalty Board by August 2, 2010.  This is your opportunity to lay claim to a share of the annual fund from which television broadcast stations get paid for their programming that is retransmitted by cable and satellite service providers outside of their respective service areas.

In general, TV stations that are carried on cable systems as a distant signal, and those stations that provide programming to other stations that are carried as a distant signal, are entitled to royalty payments.   A cable system is “distant” vis-à-vis a station if the system is: (1) outside the station’s DMA; AND (2) at least 35 miles from the station’s city of license; AND (3) outside the station’s predicted Grade B contour.  Stations whose programming is carried on satellites to subscribers outside the station’s DMA are also entitled to royalty payments.

The Copyright Office encourages stations to file their Claim Forms online.  The forms can be found at:

If you need our assistance in preparing the forms, please let us know.

Could Website Operators Be Their Own Worst Enemy?

CDA Section 230 shelters operators from liability for third-party posts; Fall-out from well-intentioned promises by the operators themselves is another matter.

Section 230 of the Communications Decency Act (CDA) is a statute we’ve written about on several occasions.   For website operators, it’s akin to the Gardol Invisible Shield: Section 230 effectively immunizes website operators from liability arising from most (but not all) of the bad things that visitors to their sites might say or do. (Cautionary note: Section 230 does not help you when you’re accused of copyright or trademark infringement based on third-party posts to your site.) (Promotional note: we can offer tutorials on both Section 230 of the CDA and Section 512 of the Digital Millennium Copyright Act, which covers the copyright/trademark area. Let me know if you have any interest.)

If you like your Internet a bit raucous, you can thank Section 230. Its immunity provisions are directly responsible for the virtual absence of any decorum on most Internet discussion boards, chat rooms and comment areas.  Those provisions relieve website operators of the hassle and expense involved in extensively moderating their sites for improper comments – and that, in turn, opens the doors for robust exchanges of often controversial views that might otherwise go unexpressed, or at least unposted for fear of potential litigation. Section 230 has proven to be a rock solid protector of website operators (and, many would say, free speech).

But in a couple of recent cases from the U.S. Court of Appeals for the Ninth Circuit, website operators have been less than invulnerable to the reach of courts prodded by individuals unhappy about third-party-posted content. What happened to Section 230?

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Interim ASCAP Fees Take Temporary Dip

Court ruling reduces aggregate interim annual fee due to ASCAP, but specific details are still in the works

Late last week a judge in the U.S. District Court for the Southern District of New York threw an interim bone to radio broadcasters in their quest for lower royalties paid for performance of musical works.  Before you start setting off the fireworks, though, know that the precise effect on individual stations is still unknown. And it will in any event be limited because of its interim nature. Oh yeah, and it’s subject to retroactive adjustment at some point down the line.

But, hey, take ’em where you can get ’em, that’s what we always say.

We previously wrote about the need for interim royalty rates to be paid by radio stations to ASCAP and BMI for the performance of musical works (the underlying music and lyrics in each song transmitted over-the-air and on the Internet). The previous rate-setting arrangement expired on December 31, 2009, and rates for the next term are still in negotiation – so interim rates needed to be established to “ensure a reasonable flow of funds” to ASCAP and BMI. We thought the interim rate was going to amount to a seven percent reduction in the rates previously paid by radio stations to ASCAP. Our thinking was based on an agreement announced between the Radio Music License Committee (RMLC) and ASCAP in January. But now Judge Denise Cote has issued a Memorandum Opinion and Order which supersedes that agreement and further reduces the amount paid across the board

Judge Cote’s decision is short on analysis – in fact, at three pages (and two lines), it’s just plain short. She offers no details at all. Instead, she points out that she has read the submissions of the various parties and has heard their arguments, and without further ado she announces that “the interim fee payable by the RMLC is $192,413,111 per year” – a figure that amounts to $40 million less than that which was paid in 2009.

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Proposed 2011-2015 Webcasting Rates Up For Discussion

CRB takes path of least resistance, bases proposal on privately-negotiated settlements

When it comes to setting the royalty rates and related terms governing webcasting, the Copyright Royalty Board (CRB) rules.   It does so through formal proceedings which result in rates/terms applicable for five-year periods. This time around, the CRB appears to be acknowledging that the private sector might have a better handle on things than does the CRB. Rather than propose a new, CRB-developed structure for 2011-2015, the CRB is looking to impose overall terms and conditions identical to those reached in privately-negotiated settlement agreements developed in 2009.

The CRB’s approach is a concession to the shortness of life and the difficulties of the rulemaking process. Last time around, the CRB’s proceedings dragged on so much that its ultimate decision didn’t make it into the Federal Register until May, 2007, almost a year and a half after the term to which that decision applied (i.e., 2006-2010) applied. When it finally was issued, the decision was almost immediately panned by just about all concerned.  It was appealed (without much success)Legislation aimed at deep-sixing it was introduced (also without much success).

And eventually, the parties to whom the CRB’s ruling was meant to apply took matters into their own hands. In 2009 they negotiated alternative royalty rates and playlist reporting requirements which allowed them to effectively side-step the ruling.

This time around it looks like the CRB has learned from its last experience. The first step of the 2011-2015 ratemaking process required a three-month negotiation period between all parties. The idea, presumably, was that the CRB will encounter far less resistance if it adopts an approach to which those subject to the approach have already agreed. They appear to have hit the nail on the head, as these initial negotiations have borne fruit for some webcasters.

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Retransmission In Transition?

Consumer-friendly (?) Big Cable seeks Big Cable-friendly overhaul of retransmission consent process

A group consisting of some of the major multichannel video program distributors (MVPDs) has run to the Commission asking for changes in the retransmission consent rules. The group – for convenience, let’s refer to them collectively as “Big Cable”, although they include (in addition to major cable operators) non-cablers DirecTV, Dish, a couple of phone companies, and even some supposedly independent advocacy/think tank groups – is concerned that Big Cable’s ability to call the shots when it comes to carriage of broadcast signals has gone away, and Big Cable understandably wants it back. Who wouldn’t?

In a Petition for Rulemaking, Big Cable declares that the retransmission consent system is “broken”. Not surprisingly, Big Cable had this particular epiphany immediately after several very public sets of carriage negotiations in which, e.g., Fox and ABC demonstrated their negotiating acumen, and clout, in facing down some very major cable operators. Who “won” or who “lost” those negotiations is, of course, a matter of opinion and spin. But Big Cable is now urging the FCC to impose a mandatory arbitration process and to require that MVPDs continue to carry stations when parties can’t reach a deal.

Sure sounds like Big Cable may be thinking that, nowadays at least, the broadcaster-MVPD negotiation process isn’t exactly what it was cracked up to be . . . at least for Big Cable.

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Department of the Inferiors? Copyright Royalty Board Judges Are OK With That.

Judge denies Live365 preliminary injunction request based on constitutional challenge to CRB

Inferiority never felt so superior. By successfully painting themselves as “Inferior Officers”, the judges of the Copyright Royalty Board (CRB) have dodged a preliminary bullet. And while the odds seem pretty good that they’ll make it through to the end of this particular round, there’s plenty of reason to believe that the fight won’t be over for some time to come.

The main issue: is the CRB unconstitutional? As we reported last summer, in a CRB-related appeal decided by the U.S. Court of Appeals for the D.C. Circuit, Judge Brett Kavanaugh issued a concurring opinion in which he questioned the CRB’s constitutionality. When a U.S. appeals judge goes out of his way to opine that an agency may be unconstitutional, people take notice.

Live365 did just that. Live365 is an aggregator of digital radio stations which is subject to the compulsory copyright license scheme overseen by the CRB. In particular, Live 365 must suffer through the prolonged trial-type rate-setting proceedings CRB uses to set rates and establish terms, and Live365 must live with the (expensive) results of those proceedings.  

Sensing an opportunity, Live365 took the initiative to file a complaint in the U.S. District Court for the District of Columbia (not coincidentally, the court whose rulings are reviewed by Judge Kavanaugh and his D.C. Circuit colleagues) seeking a determination that the CRB is unconstitutional. Needless to say, if Live365’s suit were successful, it would throw the entire rate-making process into massive disarray, possibly scuttling for an extended period the collection and distribution of copyright royalties for webcasting. 

We outlined Live365’s September, 2009 presentation, deeming it “a very good initial argument”, but cautioning that you really can’t put too much stock on a complaint without first checking out what the other side has to say. 

Truer word was never spoken.

Judge Reggie Walton has recently denied Live365’s request for a preliminary injunction. But Judge Walton also rejected motions to dismiss Live365’s case, so it lives on as Live365 presses for a permanent injunction and a final declaration that the CRB is unconstitutional. And while Judge Walton’s denial of the preliminary injunction must be disappointing to Live365, the Judge acknowledged that the law in this area is not at all clear. What is clear is that we probably haven’t heard the last of this matter.

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Image-Rights Litigation: Former College Athletes Stay On Offensive

Federal judge rejects motions to dismiss, allows videogame suits against NCAA, Electronic Arts to proceed

Update Time! For those of you wondering what ever happened with the efforts of Ed O’Bannon, Sam Keller and Craig Newsome – former college athletic stars all (but you probably knew that already, didn’t you?) – to protect their right to control the use of their images, the answer is: Lots. While none has yet emerged victorious over the NCAA, Electronic Arts (EA) and other various foes, progress has been made recently.

As loyal readers of this blog know, the field of “image rights” has been the subject of extensive litigation over the last couple of years. Former professional athletes (including no less a luminary than Jim Brown) and their college counterparts have sued a range of defendants in an effort to protect their ability to control, and profit from, the use of their images. And while Jim Brown’s attempt was stopped at the line of scrimmage, recent rulings in the cases of O’Bannon, Keller and Newsome may provide a path to victory for them (and other similarly situated celebs).

Keller and Newsome were big-time college football players, while O’Bannon played hoops. Since I happen to be partial to b-ball – as opposed to football (in large measure because of my distaste for the whole BCS ridiculousness) – here’s some background on O’Bannon. Originally recruited to play basketball at UNLV, he ends up at UCLA when UNLV’s program is put on probation. He gets injured bad (ACL) as a frosh, but fights back and, as a senior in 1995, is named college player of the year, stars when the Bruins win it all at the NCAA’s Big Dance, gets his UCLA number retired, the works. As college careers go, it doesn’t get more Story Book. Pro-wise, not so much: he went high (9th) in the NBA draft, but lasted only two seasons, followed by some play in the foreign leagues, and then retirement to a new career as a pretty successful car salesman.

Fast forward a decade or so. As the story goes, O’Bannon notices a friend’s son playing a video game featuring the 1995 UCLA Bruins. The video team includes an unnamed player startlingly similar – actually pretty much identical – to O’Bannon: same position, same number, same stats, same shooting hand, etc. His friend remarks, “You know what’s sad about this whole thing? You’re not getting paid for it.” O’Bannon thinks, “Wow, you’re right.” He lawyers up and sues.

O’Bannon and Newsome went after the NCAA. Keller, in a separate suit which was ultimately joined with the O’Bannon/Newsome action, named the NCAA and EA as defendants. The gist of the suits is that somebody – maybe the NCAA, maybe EA, maybe others – is making a boatload of cash from video games which depict (without specifically identifying) real people who are readily identifiable through various aspects – stats, player numbers, years, etc. Why should those real people not be entitled to share in the profits since their images are central to enterprise?

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Meet The New Fee, Same As The Old Fee

As expected (and as we predicted here), the Copyright Royalty Board (CRB) has reinstated the $500 per channel annual minimum fee for both commercial and noncommercial webcasters. The great irony, of course, is that it has taken until the final year of the current five-year royalty term to confirm these annual minimum payments. 

The official reinstatement of the fee is likely to have no more than a minimal effect on many, if not most, broadcasters. The final rule, published by the Copyright Royalty Board on February 8 (but technically not effective until March 10), applies only to those commercial or noncommercial webcasters who elected to continue webcasting under the terms and conditions of the March, 2007, Copyright Royalty Board decision.

Many broadcasters have signed on to one of the webcasting settlement agreements available to commercial or noncommercial webcasters – and, in so doing, they agreed to the same annual minimum fee of $500 per channel. We expect that those who didn’t sign on to one of the settlement agreements probably assumed the $500 per channel annual minimum would be reinstated and went ahead and paid it by January 31 (or at least have already factored it into their webcasting budgets).

If you (a) are webcasting, (b) did not sign on to one of the settlement agreements, (c) did not already make a minimum payment to SoundExchange for 2010, and (d) would like more information about how to make that payment, feel free to get in touch with us.

NOLA to NFL: Who Dat ® Your Daddy?

NFL backs off trademark claim to "Who Dat"

We weren’t the only ones who weighed in on the NFL’s questionable decision to claim trademark rights in “Who Dat”. As we reported, Senator David Vitter was all over the issue like a cheap suit, as was Louisiana Governor Jindal and his Attorney General Buddy Caldwell, according to reports here and here (among others). And the winners in the beat down are: common sense, reason, the Who Dat Nation, and just about everybody but the NFL.

Of course, the NFL couldn’t just cowboy up and fess up to a mess up. No, it sniffed that it wasn’t really trying to stop the widespread use of “Who Dat” – rather, it was just trying to prevent use of that phrase “only if a Who Dat item also contained NFL or Saints trademarks or if it is falsely claimed that an unauthorized item is affiliated with the Saints or NFL”, according to an MSNBC report.

Wait a minute. The Wall Street Journal’s reported that in late January the NFL had filed in Florida to register (under Florida’s local trademark laws) the expression “who dat” on apparel. And the Journal quoted the NFL’s blunt instrument cease-and-desist letter as saying that using “who dat” is likely to “confuse the purchasing public into believing” that items with the slogan are sponsored by the NFL. The Journal also quoted an NFL rep as saying that for 20 years the NFL has been “using and enforcing its rights in the ‘who dat’ mark to refer to Saints football”.   So the latest spin they’re trying to apply to their problem appears to be, well, spin.

Be that as it may, reason has apparently prevailed here, so now we can get back to the matter at hand: getting ready to stuff ourselves beyond belief on food and alcohol while a bunch of overly large men beat each other senseless.

And, we’ll remind you yet again, that the NFL does have a valid, registered trademark in the term “Super Bowl” and will, if prior experience is any indication, continue to prosecute unauthorized uses of that term to the fullest extent possible.

Who Dat ® Own Dat Trademark?

The NFL illustrates our point, again.

A couple of days ago we ran our annual alert about the fact that some folks – large professional sports organizations in particular – seem to be trying to take control of our language by registering as trademarks just about every word or phrase in sight . . . and then telling us we have to pay to use those words and phrases. For those who may not have believed us, check this out: reports out of New Orleans indicate that the NFL is claiming that “Who Dat” – long the catch-phrase of the Super Bowl-bound (oops, make that Super Bowl ®-bound) Saints, and before that a staple of minstrel shows and vaudeville acts back into the 1800s – is a registered NFL trademark. 

According to those reports, the NFL has gone after local Big Easy tee-shirt vendors, trying to get them to stop selling their own home-grown “Who Dat” tees. Seems a bit heavy-handed, particularly in view of the hard times folks in N’awlins have suffered in recent years. (That’s what Senator David Vitter thought, at least. He fired off a letter to the NFL advising that he is printing up, for sale, a bunch of tee shirts emblazoned with the message “WHO DAT say we can’t print Who Dat!” His message to the NFL: “Please either drop your present ridiculous position [asserting control of “Who Dat”] or sue me.”)

“Ridiculous” seems about right to describe the NFL’s practice of going after local business owners for something like this. That’s especially so when any rational person would understand that this is one of those situations where you're better off cultivating support for one of your more hard-luck franchises, even if it costs you a few bucks here or there.  

But for our purposes here at, it helps us make our point: if the NFL is willing to swim against the tide of goodwill that’s flowed into New Orleans since Hurricane Katrina, you should figure that the NFL will be perfectly happy to go after you for misuse of “Super Bowl” – darn, we messed up again – “Super Bowl ®”. Who dat ® say you haven’t been warned?

"Super Bowl ®" - Emphasis on the "®"

Our annual cautionary reminder about trademark protection

Hmmmm. Rumour has it that there’s some kind of important football game coming up in a week or so, down in Miami (the anglicized spelling is another nod to the fact that I don’t consider this “real football”). 

That means it’s time for the obligatory reminder that the term “Super Bowl ®” has been registered as a trademark by the NFL, so using the term without the NFL’s permission . . . yadda, yadda, yadda, serious financial penalties for infringement.

There’s a term for this type of recurring annual story in the journalism world: “evergreen”.   Rather than waste your time and ours, we’ll simply link to the story we posted on this issue last yearJust substitute “Colts” and “Saints” for “Steelers” and “Cardinals”. The legal principles remain exactly the same.

We should also point out that the NFL is not the only organization which has managed to stake a claim to particular words or phrases that get considerable public attention periodically. For example, just over the horizon but closing in fast we have the “Olympics ®”, the “Oscars ®”, and the “FIFA World Cup ®” (you know, the real football). And there are lots more where these came from. Some trademark owners are more obnoxious than others about enforcing their rights in the mark against every little Tom, Dick or Harry – the NFL’s hard-nosed efforts along those lines are quasi-legendary. Still, the fact is that, by jumping through the trademark registration hoops, these folks have obtained the right to control the use of their marks to a significant degree. They have also obtained the right to sue anyone who infringes on their marks. You should contact us if you have any questions as to whether a term by which you might ordinarily refer to a major event – sporting or otherwise – is a registered trademark subject to these limitations.

The preceding has been brought to you as a public service by CommLawBlog ®.

Reminder to NONCommercial Webcasters

January 31 brings deadlines for payment of annual minimum fees and filing of election notices

Attention NONcommercial webcasters. January 31, 2010 brings deadlines for you just as it does for your commercial counterparts.  But the January 31, 2010 deadline – for making the annual payment and, if appropriate, filing a Notice of Election to participate in one of the available Noncommercial Webcasting Settlement Agreements – is perhaps more important to noncommercial webcasters. That’s because most noncommercial webcasters, whether or not they have elected to participate in a settlement agreement, will end up paying the $500 per channel annual minimum payment and nothing more (unless the webcaster exceeds the allowable 159,140 aggregate tuning hour monthly maximum triggering additional payments). So there’s no reason that you’d be late with this lone payment.

Timely filing of a Notice of Election to participate in either the General Noncommercial Webcasting Settlement Agreement or the Noncommercial Educational Webcasting Settlement Agreement is equally important, as it can alleviate some of the onerous playlist filing requirements the webcaster must make through the year. 

What follows is a summary of the immediate and ongoing filing and payment obligations applicable to noncommercial webcasters for 2010. Note that, for webcasting purposes, the commercial v. noncommercial distinction rests with the webcaster’s status under Section 501 of the Internal Revenue Code, not the webcaster’s FCC license (if there is one). 

If you are (a) a webcaster exempt from taxation under Section 501 of the Internal Revenue Code (or have applied for that status) or (b) a government organization operating your webcast consistent with your public purpose, read on. If none of these apply, you should go here for our similar summary applicable to commercial webcasters.

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Reminder to COMMERCIAL Webcasters

The January 31 deadline for payment of annual minimum fees and filing of election notices is fast approaching

This the first, last, and,  possibly, only reminder to all commercial webcasters that January 31 is the deadline for filing the first of what will be many Statements of Account to SoundExchange with payment of copyright royalties for performance of sound recordings over the Internet during 2010. For some of you, there is a concurrent requirement to file a Notice of Election to obtain or retain the special status offered under one of the many webcasting settlement agreements. 

If you are a noncommercial webcaster (determined not by your FCC license but by whether the webcasting entity is exempt from taxation under Section 501 of the Internal Revenue Code), click here for a similar guide laying out your deadlines

Set forth below is a summary of the immediate and ongoing obligations for every commercial webcaster in 2010. And guess what? It's now in 3D! On Ice! Well, not exactly, but we do offer a direct link to every form as it appears on the SoundExchange website.

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Copyright Royalty Board Tries, Tries Again

At Court’s insistence, CRB runs the $500 annual minimum payment for non-interactive webcasters back through the rulemaking machine – Comment deadline is January 22, 2010

Today we’re playing “Copyright Jeopardy!”. The category is “Annual Minimum Payments”, and the answer is: $500.

Contestant No. 1: “What is the amount required to be paid by non-interactive webcasters at the beginning of each year for the right to perform sound recordings over the Internet?”

Host: “No, I’m sorry. That would have been the right answer, except the United States Court of Appeals declared that required payment to be arbitrary and capricious earlier this year.”

Contestant No. 2: “What is the amount that will probably soon be required to be paid by non-interactive webcasters at the beginning of each year for the right to perform sound recordings over the Internet?”

Host: “Correct!”

A subtle but important distinction: the $500 fee is not now in effect, but the Copyright Royalty Board (CRB) is working to change that.

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RMLC and ASCAP/BMI Agree to Continue to Disagree

Back before the end of the year, we suggested that broadcasters who had not already signed up with the Radio Music License Committee (RMLC) might look into doing so pronto. The RMLC, you will recall, represents broadcasters in negotiating with ASCAP and BMI relative to copyright royalty rates.  You can be part of the RMLC team, but you have to expressly sign up with them. 

There’s even more reason to check into doing so now that we have turned the corner into the New Year.

In the waning days of 2009, the RMLC agreed to terms with both ASCAP and BMI covering the “bridge” period between expiration of the last agreement (which technically went away on December 31) and the approval of new terms by the U.S. District Court which oversees the RMLC/ASCAP/BMI ménage à trois. The interim deal may have some appeal. According to Radio Ink, royalties due to ASCAP and BMI from radio stations will be discounted seven percent per month starting on January 1, 2010. The discount (which should be reflected in the latest round of bills being sent out by ASCAP and BMI) will be in effect until RMLC and ASCAP and/or BMI come to terms for the period beginning 2010 – or until the supervising Court steps in because the parties can’t manage to reach an agreement. (Call us crazy, but we suspect that the latter is the more likely scenario, what with the RMLC Chair being quoted in the trades as saying that “the gap in [the parties’] respective positions was so vast that it made it virtually impossible to reach a voluntary agreement.” That could just be a negotiating ploy, though.)  

Once the rate for the next term is set, it will be retroactively applied to January 1, 2010, so depending on how things shake out, stations could end up having to payback all of the cash saved through the interim seven percent discount.  But that might not happen for a year or more – meaning that the cash will stay in the stations’ pockets, rather than the ASCAP/BMI coffers, at least for the time being.

Again, stations which have already authorized RMLC to negotiate on their behalf – and thus agreed to be bound by any eventual deal that gets approved (along with the seven percent discount for the bridge period) – don’t have to do anything. But stations that (a) have not authorized the RMLC to rep them (or stations that aren’t certain if they have done so) but (b) still but want to be subject to these terms, can still opt in by completing this form and sending it to the RMLC.  (Note: the third major performing rights organization, SESAC, engages in separate negotiations with the RMLC not subject to court oversight).

RMLC/ASCAP/BMI - Letters All Over The Place!

With existing royalty arrangement expiring at year’s end and negotiations for new deal underway, parties notify radio broadcasters of opportunities to participate

Some of you radio broadcasters out there might have received letters recently from one or more of the following:

The American Society of Composers, Authors, and Publishers (ASCAP)

Broadcast Music, Inc. (BMI)

The Radio Music License Committee (RMLC)

It’s our understanding that these letters are being sent to broadcasters who have not already authorized RMLC to negotiate licensing arrangements on their behalf with ASCAP and BMI. RMLC is already engaged in such negotiations for a lot of broadcasters, and when those negotiations are completed, the agreed-to arrangements will set the terms on which participating broadcasters will be able to transmit – over-the-air and by internet webcast – musical works owned by songwriters represented by ASCAP and BMI.  The letters which have been arriving recently provide to anybody who hasn’t signed up yet an opportunity to take advantage of those arrangements.

First, a little background.

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In Your Face(book), Defamation Plaintiffs

Judge comes down for Facebook in defamation action

We've previously written about Section 230 of the Communications Decency Act (CDA), a statute which immunizes an “interactive” content provider or other computer service from most liability for content posted to the site by third parties. To the gazillions of people whose feelings have been hurt by something that got posted about them somewhere on the Internet, Congress said in effect: “If you can find the people who actually wrote the stuff that upset you, feel free to sue them. But don’t bother to sue the host services which those people used to get their words out onto the Internet.”

Where’s the fun in that? After all, it’s darn near impossible to pull back the dark and heavy curtain of Internet anonymity and ID any particular poster. And even if you happened to find the right person, odds are that he/she doesn’t have any money. By contrast, many Internet hosts – large, recognizable, deep-pocketed household names like AOL, or MySpace, or Craigslist – are (a) easy to find and (b) seemingly flush with cash.

No wonder a significant number of people still try to shoot the messenger, regardless of what Congress said.

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It's ALIVE!!! Performance Rights Bill Approved By Senate Committee

But the odds are still against PRA enactment

The American public is seriously into zombies just now – how else to account for the fact that Zombieland took in some $25 million during its first weekend, and Pride and Prejudice and Zombies has spent considerable time on many best seller lists? So we should not be surprised that, on October 15, the Senate Judiciary Committee passed S.379, the Senate’s version of the Performance Rights Act (PRA), by a 21-9 vote. 

Yes, that means that S.379, like its House counterpart, H.R. 848, is still alive and kicking, in an undead sort of way. And either version could, theoretically, become law – if, that is, it survives a floor vote in its own chamber, gets approved by the other chamber, and is eventually signed by the President. Should all those stars happen to align, broadcasters would for the first time be required to pay copyright royalties for over-the-air performance of sound recordings.

No, we still don't know how either bill will actually survive. After all, 250 members of the House have co-sponsored the “Local Radio Freedom Act”, a nonbinding statement of opposition to the performance right embodied in H. R. 848 and S.379. Since 250 votes would constitute a majority of the House, the defeat of H. R. 848 in the House would still seem to be a mortal lock, thus pounding a stake through the PRA’s heart.  (For the record, we’re not surprised at all that S.379 passed the Senate Judiciary Committee, since that Committee’s Chairman, Patrick Leahy – like his House counterpart, John Conyers – is a supporter of the legislation, and that alone can be enough to get legislation through a committee.)

That’s all we feel the need to say on the matter right now.

Dear CRB: Thanks for Nothing

Final playlist reporting requirements for webcasters announced

After years of proposals and deliberations and interim policies, the Copyright Royalty Board (CRB) has at long last published “final rules” dictating the playlist reporting requirements for webcasters. But like so many things in this day and age of fast-paced technological and regulatory development, the “new” rules, which take effect on November 12, 2009, are likely to be of little more than academic interest to many. That’s because intervening events – including multiple separate agreements among various webcaster groups and SoundExchange – have largely marginalized the significance of the CRB’s role in this aspect of webcasting.

The rules won’t be of particular interest to

  • “smaller” Internet-streaming broadcasters, i.e., operators with such a small on-line listenership that they never exceed the $500 annual minimum payment in a given year, to whom the full-time “census” reporting of playlist information does not apply; or
  • broadcasters who have elected to participate in one or more of the agreements (general noncommercial and noncommercial educational or CPB or commercial broadcaster) to settle outstanding appeals of the March 2, 2007 decision of the CRB to institute rates and terms for the statutory license for the period 2006-2010. 

Still, if you are in the dwindling universe of webcasters who remain subject to the CRB’s reporting requirements, you should familiarize yourself with the “new” rules.

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Jim Brown Downed At The Line Of Scrimmage

Federal judge rejects former NFL star’s Lanham Act claim of “false endorsement” by EA Sports

In recent months we have focused a LOT of attention on the issue of the image rights of athletes. That issue has popped up in lawsuits filed by former college football and basketball players seeking to get their hands on some of the money generated by the very popular – and lucrative – video games produced by EA Sports. Recently, a similar effort has been made by some retired NFL players looking for a cut of the cash from the NFL’s film operations.

These suits are based in several different causes of action, but they all generally boil down to the fundamental claim that the defendant is engaging in the unauthorized use of the player’s likeness in some way (even though that use often does not always identify the player by name or team or number).

In late September a new opinion was issued by a Federal District Judge in California. The case involved a former NFL player, and it’s a big one – “big” referring both to the player and the decision.  The player in question is one James “Jim” Brown.  Yes, that Jim Brown. The core of the Cleveland Browns’ offense from 1957-1965.  The player often considered the best pure running back in NFL history, who retired after just eight seasons as the NFL’s all-time leader in career rushing yards – a record which stood for more than two decades.   (He was also one helluva lacrosse player, if you didn’t already know that.)

Much like Jim Brown himself, the District Court’s opinion plowed through any opposition, but still left you begging for more.

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"Interactive Webcasting"? The Second Circuit Weighs In

“Interactive”. For webcasters, it’s a word that makes a huge difference. Webcasters who provide non-“interactive” music services avoid a world of bureaucratic hurt when it comes to copyright royalties. Those lucky souls get to take advantage of the statutory license, which means that copyright clearance is essentially automatic – all they have to do is jump through some hoops established by the Copyright Royalty Board. But “interactive” webcasters? They have to negotiate separate copyright clearance deals with each copyright holder of each recording that they might want to play.  Ouch!

Historically, it hasn’t been easy to determine precisely when a webcast service crosses the line between non-interactive and interactive. But here’s the good news: the U.S. Court of Appeals for the Second Circuit has recently become the first U.S. appellate court to consider, and shed definitive light on, the meaning of “interactive”. 

Many webcasters have a very limited view of what constitutes an interactive service. They’d have you believe a service is “interactive” only if it lets a listener choose the exact artist and song to be heard, much like an iTunes download.  In this pleasant, if not entirely realistic, view, anything else – including services offered by the likes of or Pandora, where the listener can identify an artist, or even a song, and find an entire channel with similar music – is viewed as "non-interactive".

The Second Circuit has now provided us all with some guidelines to help sort this all out.

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Live365 v. CRB

Internet radio network seeks ruling that CRB is unconstitutional

“Billions of dollars and the fates of entire industries can ride on…decisions [by the Copyright Royalty Board (CRB), which] exercises expansive executive authority analogous  to…FERC, the FCC, the NLRB, and the SEC [even though] unlike those similarly powerful agencies…[CRB Judges] have not been nominated by the President and confirmed by the Senate.”

If these words seem familiar to you, then you're either a regular reader of CommLawBlog or a fan of Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia. He wrote them in a concurring opinion (which we discussed here back in July) in which he -- without provocation – questioned the constitutionality of the CRB.

Those words are also found in the opening paragraph of a complaint filed in the U.S. District Court for the District of Columbia this week by Live365 which seeks:

  • a declaration that the statute providing for appointment of the CRB’s judges is unconstitutional and, therefore, they really have no power or authority at all; and
  • a preliminary and permanent injunction staying all further proceedings before the CRB – including the proceeding to set webcasting rates for the years 2011-2015 which is just starting up before the CRB. 

Neither Judge Kavanaugh nor Live365 pulled this one out of thin air. We had that story for you, too, back in July. There we pointed out how, in the course of rejecting challenges to the CRB’s March, 2007 decision setting the 2006-2010 webcasting rates, the D.C. Circuit pushed aside one party’s challenge to the overall constitutionality of the CRB.   But the Court slid past that argument, saying that the thorny constitutional issue needn’t be addressed because it hadn’t been raised soon enough.

So the table was set for this type of challenge; Live365 was just the first to answer the dinner bell.

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Retired NFL'ers Seek Their Cut of the Marketing Pie

We have previously reported about the burgeoning field of litigation involving the use of athletes’ images, personal information and statistics by various secondary industries, such as fantasy sports, video games and other marketing endeavors. Good news. That field continues to burgeon with the recent suit filed by several former NFL starts against (and here’s a twist) the NFL itself. Don’t bother to stay tuned for film at 11 – read on!

As the old saying goes, you can't tell the players without a scorecard.  So let’s recap the lawsuits that are already on the books.

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Noncommercial Webcasting Royalties: The Nitty Gritty

Latest SoundExchange agreements published in Federal Register, Election dates now set

Last week we reported that SoundExchange had reached a couple of agreements affecting non-CPB noncommercial webcasters. The terms of those agreements have now been published in the Federal Register. Our summary follows. If you are subject to these agreements, pay attention: your opportunity to opt in may be subject to a September 15, 2009, election deadline.

One of the two agreements – we’ll call it the “General Agreement” – covers all noncommercial webcasters. (This is noteworthy because the agreement was negotiated with a committee of National Religious Broadcasters. Despite that, the agreement is not limited solely to religious webcasters.) The second agreement covers only noncommercial educational entities, who have the best of all possible worlds: they can elect to be subject to the terms of the noncommercial educational agreement or they can elect the General Agreement instead.

Interested in the details?  Read on.

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Impaired Transparency?

Where’s the FCC’s copy of the MusicFIRST Request been hiding?

As we reported recently, the FCC has invited comment on the Request for Declaratory Ruling filed by the MusicFIRST Coalition. For the convenience of our readers, we provided a link to a copy of the Request. Good thing that we did. Apparently the FCC has been having quite a time trying to track down any copy in its files reflecting a “received” stamp from the Secretary’s office. 

As an apparent result, as of 5:00 p.m. today (August 12, 2009) no copy at all of the Request had been posted in Docket No. 09-143 on ECFS, even though the public notice inviting comments was supposedly released five days ago – so anybody who (a) might have wanted to read the Request between then and now and (b) hasn’t thought to look for it on would have had a bear of a time finding it. 

We’ve heard from one source who suggested that it’s not clear that the Request ever made it to the Secretary’s office. To be sure, the copy of the Request that we have in hand (no thanks to the FCC) includes a certificate of service indicating that it was being filed at the appropriate FCC filing address – but ordinarily, when things are filed at that address, stamped copies are made and retained by the Commission for future reference. So if it did pass through the Secretary’s office, it’s unclear why it didn’t get stamped in . . . and if it did get stamped in, it’s unclear why it’s taking so long to get a stamped copy posted for public review.

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The Fourth Webcasting Settlement: SoundExchange/CPB Deal Is Extended

The mystery of the fourth SoundExchange settlement agreement has been solved.

As we reported last week, SoundExchange announced that it had entered into four agreements establishing webcasting royalty rates. The terms of three of those agreements were described in our blog last week, but SoundExchange withheld details about the fourth . . . until now. As it turns out, the fourth agreement is with the Corporation for Public Broadcasting (CPB), and it extends through 2015 (with some tweaks) the terms of the SoundExchange/CPB agreement reached months ago.

Under the original deal, which covered the years 2006-2010, the nearly 500 eligible stations make their royalty payments to NPR Interactive, which then makes a $1.85 million lump sum payment to SoundExchange on behalf of the participating stations. To be eligible, a station must:

  • Be licensed by the FCC;
  • Originate programming (that is, it can’t be solely a repeater station);
  • Be either (a) a member or affiliate of NPR, American Public Media, Public Radio International, Public Radio Exchange, the National Federation of Community Broadcasters or (b) a public radio station that is qualified to receive funding from CPB;
  • Qualify as a “noncommercial broadcaster” under the statutory licensing rules; and
  • Webcast as part of the mission that entitles the owner to be exempt from taxation under Section 501 of the Internal Revenue Code, or, if it is owned by a government entity, operate for a public purpose.

The new deal extends the original deal an extra five years – through 2015 – which provides certainty about future royalty rates for participating stations. (Adopting an end-date of 2015 also brings the CPB deal into conformity with other SoundExchange royalty agreements.) In 2011 there will be another lump sum payment – this time to the tune of $2.4 million (although that may increase based on increased listenership at the covered stations). Most stations will continue to enjoy the more relaxed requirement pertaining to the reporting of information about songs played (two seven-day periods per quarter), although more music-oriented stations will get stuck with census reporting.  

Again, CPB is providing the lump sum payment, so eligible stations need to keep an eye out for more information from CPB or NPR which should be arriving in the near future.

Responding To A False Alarm?

FCC invites comments on alleged improprieties in Performance Rights Act debate

A new front has been opened in the on-going struggle over the Performance Rights Act (PRA). The new battleground is the FCC, which has invited comment on a “Request for Declaratory Ruling” filed by MusicFIRST Coalition back in June.

As we have previously reported (here and here, for example), the PRA would require radio stations to pay for the on-air performance of copyrighted sound recordings. That would be over and above the royalties broadcasters already pay to the composers of the underlying works (through ASCAP, BMI and SESAC). Historically, of course, radio has provided on-air exposure to recording artists for free, just as the artists have made their recordings available to broadcasters for free. That quid pro quo arrangement has served everybody – artists, broadcasters and the listening public – well for decades. The artists – well, at least some of the artists, and certainly the record companies for which they work – now want to change the deal.

Whether the proposed change makes much sense is a matter of considerable (to put it mildly) debate. (See our colleague Peter Tannenwald’s post here for an interesting take on the situation.) But thus far, the debate has been thrashed out in Congress, in connection with various bills which would either impose a new performance rights royalty obligation or not. (While no final votes have been taken, some observers – including our colleague Kevin Goldberg – have concluded that the PRA is doomed to failure in this Congress.)

Perhaps sensing a need to expand the battlefield, MusicFIRST – a “partnership of artists and organizations in the music community who support compensating performers for their work when it's played over the air” – has tried to lure the FCC into the fray. 

And the FCC has taken the bait.

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A Virtual Clown Car of Webcasting Settlements

Last month we wrote about a settlement that established the royalty rates to be paid by so-called “pureplay webcasters” for performance of sound recordings solely via the Internet.  This was one more in a series of such settlements designed to provide alternatives to the royalty rates established by the Copyright Royalty Board (CRB) in March, 2007. Since the “pureplay” settlement seemed to cover the last corner of the webcasting universe left uncovered by the earlier settlements (which related to non-commercial radio stations that are part of the public radio/CPB system, and commercial radio stations), we referred to the “pureplay” settlement as the “final piece” of the webcasting puzzle.

 Our bad.  Turns out there were more settlements – four separate ones, to be exact – still to be completed.

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Senate Judiciary Committee: Ignoring the Magic Number

Hearing on doomed Performance Rights Act scheduled anyway

The Senate Judiciary Committee has scheduled a hearing on the Performance Rights Act for 2:30 pm on August 4.   No idea yet on who will be testifying for and against the bill, but we wonder if it even matters, given the clear message from the House that this legislation WILL NOT PASS.

There are now over 240 House co-sponsors of the "Local Radio Freedom Act", with more signing on earlier this week.  Shoot, there are now 22 co-sponsors of the Senate version of the Local Radio Freedom Act (S Con. Res 14).  If the House members are good to their word, HR 848, the House version of the Performance Rights Act is -- and we believe this is the mathematically accurate  term -- dead in the water. 

Is holding a hearing on a bill that has virtually no chance of being enacted into law a good use of the Committee's time (especially when they still haven't passed the Free Flow of Information Act, among other, more pressing and realistic pieces of legislation)?    Committee Chair Patrick Leahy apparently doesn't think so, as he won't even be presiding over this hearing.  Instead, he has passed that task on to Senator Dianne Feinstein (D-CA). 

A Strong Reminder to Register Your Copyrights

A decision from a Federal judge in New York should spur copyright owners to register their copyrighted works (“copyrighted works” meaning just about anything your create).    Those who fail to do so may lose the ability to recover valuable statutory damages if they end up having to go to court against an infringer.

The decision was issued in a class action lawsuit brought by several foreign and domestic copyright owners – largely broadcasters and television/movie producers alleging copyright infringement – against YouTube and parent company Google. The plaintiffs claimed that YouTube/Google failed to prevent repeat instances of infringement when works were posted to the YouTube site without permission and not taken down in a timely manner.

There are at least three ways to put a dollar figure on the damages that a party claiming copyright infringement can seek from an infringer. First, and most obvious, is “actual damages” – which are determined by the amount of actual, demonstrable profits gained by the infringer, or lost by the plaintiff, as a result of the infringement. The trouble with this measure is that it tends to be difficult – sometimes impossible – to prove what such “actual damages” amount to.

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Court Affirms Most Webcasting Royalty Rules

Issue of CRJs’ constitutionality is again raised but, again, left unresolved

Decision deferral is one of the practiced arts in Washington. Decisions may need to be made, but often they aren’t. Instead, the particular situation is left to simmer, perhaps because other matters are of a higher priority, perhaps in the hope that, in the end, things will work themselves out and no decision will need to be made after all. And sometimes that’s how things work out.

It is hard to imagine a better illustration of this phenomenon than recent activity on the webcasting royalty front – activity which, coincidentally or not, occurred after the underlying issues had largely been resolved privately.

The backstory here may best be told with a simple timeline:

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Final Piece of the Webcasting Puzzle Settled

Pureplay webcasters nail down royalty rates through 2015

It’s only been a few weeks since the Webcaster Settlement Act was enacted and already it’s working! A settlement agreement reached under that Act covers webcast royalty rates for “pureplay” webcasters for the years 2006-2015. (“Pureplay” webcasters provide non-interactive web-only service. A broadcaster who simulcasts on the Internet is not a pureplay ‘caster.)  This pretty much brings to a close the legislative and litigious efforts to overturn the March, 2007 decision of the Copyright Royalty Board (CRB) that was seen as a harbinger of the Death of Internet Radio – or at least the death of popular sites like Pandora.

As a result of the latest settlement, royalty rates for almost every aspect of the webcasting community are now covered by negotiated agreements. Many (but not all) public radio stations are subject to the terms of the agreement between SoundExchange and the CPB. Commercial broadcasters simulcasting on line are subject to the SoundExchange/NAB agreement. The only major class of webcasters still subject to the terms of the March, 2007 CRB decision consists of noncommercial broadcast stations that are not part of the SoundExchange/CPB deal.

The settlement for pureplay webcasters is retroactive to 2006. Going forward, it covers not only the 2006-2010 period encompassed by the March, 2007 CRB decision, but also the 2011-2015 period that is the subject of a newly-commenced CRB ratemaking proceeding.  Any pureplay webcaster can, but does not have to, choose the terms of this agreement over the terms of the March, 2007 CRB decision.

The terms of the pureplay settlement are as follows:

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Court Affirms Sat Radio Performance Royalty Rates