NAB and Sirius XM were among the nine entities or groups of law professors to file proposed amicus briefs with the 9th U.S. Circuit Court of Appeals through Thursday on behalf of Pandora in the company's appeal of a February U.S. District Court ruling in Los Angeles. The lower court said Pandora had to pay performance royalties on pre-1972 recordings owned by Flo & Eddie, who own the copyright to The Turtles' “Happy Together” and the rest of that band's music library. Sirius XM and the other six filers on behalf of Pandora argued that District Judge Philip Gutierrez incorrectly interpreted California copyright law. The other pro-Pandora filers included the Association for Recorded Sound Collections, Computer & Communications Industry Association (CCIA), Electronic Frontier Foundation, Public Knowledge and three groups of law school professors. Pandora and six of the nine filers previously filed in the 2nd Circuit on Sirius XM's behalf in that company's appeal of earlier U.S. District Court rulings in New York that relied on state copyright law in finding Flo & Eddie had a right to performance royalties on the Turtles' pre-1972 recordings (see 1508060052). Gutierrez essentially said the statute is "a living servitude on not only intangible products but also previously sold goods, one which would grow over time as new rights evolved,” CCIA said in its proposed brief. Gutierrez's “creation of a performance right in contravention of the Legislature’s plain intent violates the settled principle that where, as here, the declaration of a right would dramatically alter the common law and affect the interests of competing stakeholders, it must be a matter of legislative judgment and discretion,” Sirius XM said in its proposed brief. “Even assuming that California may regulate the use of pre-1972 sound recordings within its own borders, it cannot regulate in such a manner that prohibits the use of such sound recordings elsewhere in the nation,” CCIA said. “In such circumstances, the burden on interstate commerce -- including potential commerce involving members of amicus CCIA -- would be 'clearly excessive in relation to the putative local benefits.'” Gutierrez's ruling “creates an unbounded set of exclusive rights never recognized by California or Congress, and thus risks creating problematic restrictions on valuable speech activities,” Public Knowledge said in its proposed brief.
Jimm Phillips
Jimm Phillips, Associate Editor, covers telecommunications policymaking in Congress for Communications Daily. He joined Warren Communications News in 2012 after stints at the Washington Post and the American Independent News Network. Phillips is a Maryland native who graduated from American University. You can follow him on Twitter: @JLPhillipsDC
There has been no evidence the data stolen during the recent Office of Personnel Management data breach has been used yet “in a nefarious way,” meaning the breach can't be classified as a cyberattack, said Director of National Intelligence James Clapper during a House Intelligence Committee hearing Thursday. The OPM breach, revealed in June, has since been found to have exposed the Social Security numbers for 21.5 million people along with other personally identifiable information (see 1507090049). The data appears to have been stolen via “passive intelligence collection activity, just as we do,” Clapper testified. Rep. Chris Stewart, R-Utah, questioned Clapper's assessment of the OPM breach, saying “we don’t really know what has been the effect of this being taken.”
ICANN stakeholders generally approved of the Internet Assigned Numbers Authority Stewardship Transition Coordination Group’s (ICG) draft IANA transition proposal, in comments due Tuesday. They urged the ICG to further refine the proposal before submitting it for final approval. The draft proposal ICG submitted for comment in July (see 1507310060) combined elements of earlier proposals submitted by the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (CWG-Stewardship), the Consolidated Regional Internet Registries IANA Stewardship Proposal (CRISP) Team and the Internet Engineering Task Force’s IANAPLAN working group. The ICANN board commented that there are “some implementation details and foreseen complexities” ICG will need to clarify. The board said it doesn’t believe “any of these issues poses a threat to” the ICG proposal’s viability.
The Library of Congress (LOC) was able to restore all U.S. Copyright Office (CO) systems over the weekend, after more than a weeklong outage, but stakeholders told us the outage may be a visible reminder of existing LOC IT deficiencies that some have highlighted as a reason for spinning off the CO as an independent agency. Most public LOC websites went offline late Aug. 28 for a scheduled power outage at the library’s data center, but LOC wasn’t able to reboot several key systems, including most CO systems, when the outage was scheduled to end (see 1509010062 and 1509040011). The prolonged outage was due to an "equipment failure that occurred during startup," a LOC spokeswoman said. LOC staff were able to bring CO systems back online by Sunday morning. Library and CO staff “worked around the clock to assess problems and solutions and ensure the ongoing integrity of Copyright Office data,” CO said in a statement.
The NTIA-led multistakeholder process to create a set of common principles and best practices for security vulnerability information disclosures is to convene Sept. 29, NTIA said Friday in a planned Federal Register notice. The NTIA-led multistakeholder process, originally announced in July (see 1507090053), is one of several cybersecurity-related multistakeholder processes the Department of Commerce’s Internet Policy Task Force is seeking to convene (see 1504090049). The Sept. 29 multistakeholder meeting is to run 9 a.m.-3 p.m. PDT at the University of California-Berkeley School of Law.
The music industry is continuing to work toward an industry-led consensus on a comprehensive licensing database that can increase transparency in the licensing process. Some stakeholders told us that they're also talking with staff at the Copyright Office and members of the House Judiciary Committee to show the industry is making progress. The CO’s February music licensing study, which backed a federalized terrestrial performance right (see 1502050055), also recommended all market participants “should have access to authoritative data to identify and license sound recordings and musical works.” Usage and payment information also should “be transparent and accessible to rightsowners,” the CO study said.
Congress should ensure that any legislation that revamps portions of the Copyright Act maintains robust fair use and first sale doctrine protections because those exemptions are “as important” to the Copyright Act as the ownership rights the statute creates, said Computer & Communications Industry Association Vice President-Law and Policy Matthew Schruers during a CCIA webcast Tuesday. CCIA officially released a white paper Tuesday detailing its recommendations to the House Judiciary Committee on the contours of possible legislation to address issues the committee has explored in its ongoing Copyright Act review. The CCIA paper said new copyright bills should accommodate innovation in the tech sector and provide certainty to noncontent businesses affected by the Copyright Act, as expected (see 1508240041). CCIA took “no stated opinion” about whether the Copyright Office should be moved from the Library of Congress to another federal agency or become an independent agency, Schruers said. Efforts to concentrate legislative effort on the CO’s future status “in my view is putting the cart before the horse,” he said: “The question we should be asking is what do we need to ensure that the office better executes” its mission. “Where [the CO] belongs is really a secondary consideration that should be driven by how we’re going to modernize,” Schruers said. It’s unclear what revamp legislation is likeliest to emerge from House Judiciary’s work, he said, saying the 1976 Copyright Act revamp took more than 10 years but more targeted legislation has “happened faster than that.”
Congress must ensure that any legislation that revamps portions of the Copyright Act accommodates innovation in the tech sector in a way that doesn’t “make every licensee or consumer a copyright infringer,” the Computer & Communications Industry Association (CCIA) said in a white paper being released Tuesday.
The growing cadre of law-related top-level domains has the potential to drive significant growth in domain name registrations, some of which may come from communications practices, executives and lawyers said in interviews. How big demand is will depend on how much law firms and related entities embrace the new TLDs as a way of rebranding themselves, they said. Minds + Machines, the registry operator for .law and Spanish equivalent .abogado, began the 60-day sunrise period for offering .law domain names to Trademark Clearinghouse-registered law firms July 30. General availability is to begin Oct. 12. The .law TLD follows the .lawyer and .attorney TLDs, which Rightside began offering in 2014.
ICANN has “every expectation” it will be able to complete the ongoing Internet Assigned Numbers Authority (IANA) transition process before its contract with NTIA expires Sept. 30, 2016, ICANN CEO Fadi Chehadé said Thursday during a conference call. NTIA said Monday that it intends to extend its contract with ICANN to administer the IANA functions a full year beyond the existing Sept. 30, 2015, contract deadline to allow additional time to plan and execute the transition. That extension provides some additional breathing room for the IANA transition but doesn’t leave much time for additional delays, stakeholders told us (see 1508190064). Any further extension beyond Sept. 30, 2016, would be problematic because it would cause uncertainty among ICANN stakeholders about the IANA transition’s future, given that the extended deadline will occur so close to the 2016 presidential election, Chehadé said. The election itself shouldn’t “have a direct impact” on the IANA transition because of the “almost complete consensus” among members of Congress about the transition’s value, he said.