22001155 –– wwaasshhingtoingtonn uuppddaattee · roundtable on music licensing study. ......

2015 – Washington Update2015 – Washington Update

Thompson Coburn LLPThompson Coburn LLP

Jim BurgerJim Burger

Washington UpdateJim BurgerFebruary 11, 2015

Introduction

Congress? Intellectual Property - Copyright

• Aereo• The Hopper• Cindy Lee Garcia v. Google Inc.

Communications - FCC• Net Neutrality• OTT MVPD• Spectrum Auctions

FAA• Drones

Hearings, Hearings & More Hearings

Multi-Industry Talks on DMCA. The Department of Commerce is hosting a set of talks between tech companies and content creators onimproving the “notice and takedown” system under the DMCA.

House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet copyright hearings continued. Thesubcommittee held another in the series of copyright hearings. This March 13th hearing focused on the notice and takedown provisions ofSection 512 of the Act. Both ISPs and content providers complained about responding to and the burden of filing multiple noticesrespectively.

First Sale. The House Judiciary Committee’s Subcommittee on IP held a field hearing on June 2nd in New York, NY on first sale issues Roundtable on Music Licensing Study. The Copyright Office held a roundtable on its Music Licensing on June 4th and 5th

Roundtable on Copyright Internet Policy Topics. On May 21, the USPTO and NTIA held the First Roundtable on Statutory Damages,Digital First Sale and Remixes in Nashville, TN at Vanderbilt University Law School. Further roundtables will be held in July

Roundtable on Notice and Takedown. On May 8, the USPTO held its second multi-stakeholder forum on “Improving the Operation of theDMCA Notice and Takedown System”

Making Available Study. On May 5, the Copyright Office hosted a roundtable on the state of U.S. law regarding “making available” and“communication to the public” rights. Comments were also submitted regarding whether this already exists (as required underinternational treaties) and the effect modifying the Copyright Act would have on hyperlinking

H.R. 4588, the Protecting the Rights of Musicians Act. On May 7, Representatives Marsha Blackburn (R-TN) and Anna Eshoo (D-CA)introduced H.R. 4588, which aims to have performers and labels paid when their music is played on AM/FM radio.

Roundtable on Copyright Internet Policy Topics. On June 25th, the USPTO and NTIA held the Second Roundtable on Statutory Damages,Digital First Sale and Remixes in Cambridge, MA at Harvard University Law School. Further roundtables will be held in July in LosAngeles and Berkeley, CA.

Roundtable on Notice and Takedown. On June 20, the USPTO held its third multi-stakeholder forum on “Improving the Operation of theDMCA Notice and Takedown System.”

Legislative Hearings. The Subcommittee on Courts, Intellectual Property and the Internet held a hearing on June 25, 2014 regardingmusic licensing under Title 17 part two. The subcommittee also held a hearing on first sale under Title 17 on June 2, 2014.

vagueonthehow

Litigation

Photo credit: Jonathan Satriale

ABC v. Aereo: Where We Last Left Off

Second Circuit Affirms Aereo District Court Victoryfor Aereo 2-1

Not a public performance Transmit clause requires courts to examine who

precisely is “capable of receiving a particulartransmission of a performance”

Re-hearing en banc – Aereo wins Broadcasters file certiorari petition and it’s granted

The Supremes - Majority 6-3: Aereo publicly performed copyrighted works without authorization

Justice Breyer writes majority opinion focusing on 1976 Copyright Actlegislative history

• “One of Congress’ primary purposes … was to overturn this Court’s determinationthat community antenna television (CATV) systems fell outside of the Act’sscope.”

• Rejects Aereo’s arguments distinguishing it from cable

• Court invokes what the dissent called a “looks like cable TV” standard

• Breyer found “Aereo’s activities are substantially similar to those of the CATVcompanies that Congress amended the Act to reach.”

• “Aereo, and not just its subscribers, ‘perform[s]’ (or ‘transmit[s]).”

• Court stated “believed” ruling would not affect cloud-storage

The Supremes – the Dissent

Dissent characterized Aereo technology as a “copy shop” Would have found under “volitional-conduct” test users, not

Aereo, performed the works Did not reach the “public” performance issue Writing the dissent, Justice Scalia notes majority holding

disrupts “settled jurisprudence” that used volition “bright-linetest”

Concerned about impact of Court’s “outcome determinativetest” on technology

As to cloud computing, dissent argues Court cannot deliver onpromise based upon majority’s analysis

Where We Last Left the Hopper

CBS/Fox/NBC copyright lawsuits v. Dish’s “Primetime Anytime & AutoHop” and Dish Anywhere

Subscribers can record/store all network shows for eight days and auto-skip commercials, can forward content to “Joey’s” or tablets

Networks allege direct, contributory, vicarious infringement, &inducement to infringe

Judge Dolly Gee denied Fox’s preliminary injunction request

Fox appealed

The Hopper – 9th Circuit

Panel rules against broadcasters; affirms Judge Gee’s decision She didn’t abuse her discretion by denying Fox’s PI motion Agreed with her – Fox failed to demonstrate a likelihood of

success on copyright infringement claims Citing Cablevision, said users make copies, not Dish Held broadcasters have no “copyright interest” in controlling

skipping – particularly when don’t own copyright Fox files petition for rehearing en banc, unanimously denied Supreme Court or trial? Now after Aereo decision Trial

The Hopper – Bounces Back to Judge Gee

Based on Aereo, Fox argued Dish was “publicly performing”

Judge Gee: Hopper different than Aereo – had a license to initially transmit to subscribers

Dish Anywhere only used to access the STB receiving the content

No Dish volitional conduct – court finds still needed after Aereo for direct infringement

DISH provides equipment, but users initiate process, select content, & receivetransmission

Court also denied Fox’s secondary infringement claims for Dish Anywhere service• Subscribers not distributing to public, validly exercising private possessory control over programming

from their set top boxes

PTAT does not violate exclusive reproduction right, again Court rejects Fox’s Aereo novolition argument

No secondary infringement as PTAT fair use by subscribers

While answering a casting call for a low-

budget amateur film doesn’t often lead to

stardom, it also rarely turns an aspiring

actress into the subject of a fatwa. But that’s

exactly what happened to Cindy Lee Garcia

when she agreed to act in a film with the

working title “Desert Warrior.”

Cindy Lee Garcia v. Google Inc. – (9th

Circuit) Facts - Innocence of Muslims DC denied PI to force Google to take down the

video on copyright grounds and irreparable harm 9th Cir. reversed: found she likely had an

independent copyright interest in her performance,and filmmaker did not own that interest as a workfor hire and had exceeded any implied license to useher performance

En banc hearing held Dec. 25th

FCC

Net Neutrality

Spectrum Auctions

OTT MVPD

Overview of Internet Topography

Source: Level 3 Letter to FCC (May 5, 2014) in GN Docket 14-28

LastMile

EdgeProvi-ders

All Traffic Treated Equally by ISPs UnderNet Neutrality

19

Start Up

All traffictransmitted at

the samespeed andreliability

ISP

End User

Same speed orreliability forstartups andestablished

OTTproviders or

other Internetapplications

Fast Lanes Without Net NeutralityISP

End User

Sta

rtU

pS

tartU

pToll

Concern ISPs may create“fast lanes” and allowpay for speed

Concern ISP throttlesdown other traffic

Verizon v. FCC: Net Neutrality

Last left Net Neutrality – DC Circuit overturned FCC Rule tocompel broadband providers to treat all Internet trafficequally: anti-discrimination and anti-blocking

FCC cited Telecom Act mandate to encourage deployment ofbroadband and Title I authority

Court: FCC does have general authority to regulate broadbandunder Title I

But Court says, even so can’t impose rules contraveningexpress statutory mandates, i.e., “no blocking” and“nondiscrimination rules” are common carrier regulationCongress delegated under Title II authority not Title I

FCC NPRM – February 19, 2014

“…how best to protect and promote an open Internet.” Tentative conclusion – rely on Title I, but will consider

using Title II Seeks comments on many issues including its legal

authority and degree to which may “forebear” Retains scope of 2010 order, i.e., anti-discrimination and

no blocking But asks should “paid prioritization” (fast lane) be

permitted if meets “commercial reasonableness”

Reaction to NPRM

Record 3.7 million comments (more than wardrobe malfunction!)• “Internet Advocates” for Title II• Comcast, Verizon, AT&T, etc. for network neutrality but against Title II

President: reclassify under Title II: no blocking, throttling, or paidprioritization, and increased transparency – cuts ground underneath FCCChairman

Congress:• S. 40 & H.R. 196 (Leahy D-VT/Matsui D-CA) – FCC to adopt regs prohibiting ISPs from

preferred priority for payment or to own affiliates in last mile

• H.R. 279 (Latta R-OH) would prohibit regulating ISPs under Title II• Thune (R-SD) and Upton (R-MI) ask President to work with them to work on

legislation to give the FCC “enforceable authority”

…And late breaking news…

The Chairman Speaks

February 4th Statement

Follows Obama’s marching orders: Title II reclassification forwired and wireless ISPs

Ban paid prioritization, and blocking and throttling of lawfulcontent and services, covers interconnect “just & reasonable”

Draft order to Commissioners – Feb 5th

Commission vote – Feb 26th

Forebearance – all Title II except 13 sections Support: Internet advocacy group, Open Internet (Google,

eBay, Amazon, Netflix, etc.) and some Democratic Members Opposed: Large ISPs, NCTA, some Republican Members

“Here is President Obama's 332-page plan to regulatethe Internet. I wish the public could see what's inside.”

Competitive Broadband

Spectrum Auctions

AWS-3 astounding $41.329 billion net proceeds; Reserve:was $11 billion• AT&T, Verizon and T-Mobile and DISH Network among the

bidders

Reportedly TV spectrum now drawing larger broadcasterinterest in participating

Oct. 2014 – 300-page FCC Rule on Auctions NAB challenges rule in court – critical audience measurement TV auction pushed back to early 2016 from mid-2015 FCC Goal: 84 MHz; Opening bids FCC expects: $39 billion

OTT MVPD

Interpret MVPD to include providers of multiple linear streams ofvideo programming available for purchase, regardless of distributiontechnology• Should they need to own transmission path?• Linear programming – any pre-scheduled programming potentially

included – not on-demand• Should it exclude entities that own content, e.g., MLB-TV?• What MVPD rules should be imposed? E.g.:

• Privileges: Program Access Rules and retransmission consent• Obligations: program carriage, navigation devices, EEO, closed captioning,

video description, access to emergency information, inside wiring, CALM,etc.

Comments are due by February 17th/ reply comments March 2nd

Unmanned Aircraft Systems (UAS)

Popular and safer production substitute for video feed than from a mannedaircraft

Congress ordered FAA to safely integrate UAS into national airspace NPRM was expected end of 2014 – several delays – could be published any day FAA expecting tens of thousands of comments - Final Rule in 2016 or 2017 Interim: Must have FAA authorization for Commercial Operations Quickest way to commercial use – FAA §333 Exemption (Special UAS Rules) 250 applications since June - 24 approved - >9 closed-set TV/Movie productions Joint announcement by DOT Secretary Anthony Foxx, FAA Administrator

Michael Huerta and MPAA CEO Chris Dodd for grant of first 6 for production Conditions: (a) operate below 400′; (b) visual sight of pilot in command (PIC);

(c) use a visual observer; (d) PIC must have private pilot certificate and 3rd classmedical certificate; and, (e) daylight operations only

Warner Bros. uses drone on 'TheMentalist' set, a Hollywood first

Jim BurgerThompson Coburn LLP

Washington, DC(202) 585-6909

jburger@thompsoncoburn.com

Thank you