Copyright reform? See you in court

At the Future of Music Coalition’s Policy Day conference in Washington, even those hoping that the Obama administration will spur a major overhaul of U.S. copyright and telecommunications law acknowledged it would likely be some time before they can get the attention of Congress and the new administration. In the meantime, they said, the major copyright action will be in the courts, where a handful of crucial cases pitting copyright owners against technology providers could produce important new precedents.

“We were very pleased to see that the chairmen of the House and Senate Judiciary Committees care so much about copyright that they’re elevating it to the full committee level [rather than the usual IP subcommittee path], but the Judiciary committees are going to have pretty full agendas for the next couple of years so I think it will be pretty hard to get their attention on copyright issues,” said David Carson, general counsel at the U.S. Copyright Office.

Carson is not among those hoping to see a major overhaul of U.S. copyright law. But Public Knowledge president Gigi Sohn, who definitely is, reluctantly concurred with his assessment.

“I think you’ll see patent reform before anything major on copyright,” she said. “You have such humungous corporate interests on both sides of that issue, it’s a real clash of the titans, and I just think that’s where Congress will focus. That issue is also very complex and it won’t happen quickly.”

As for the Obama Administration, “we don’t even know who their key people will be on copyright,” Carson said. “The appointments we have seen have sort of come from both sides of the [copyright] debate so you can’t even really predict which trend they’re going to follow.”

On the other hand, Sohn said, “you have several huge [court] cases out there that could have a major impact.”

Among those: Viacom v. YouTube; the Cablevision network DVR case, and the Google Book case, where the parties have reached a settlement but the court has yet to accept it. The Viacom/YouTube case is still at the district court, but the Cablevision case is awaiting a decision from the Supreme Court on whether to hear the studios’ appeal.

The YouTube case, should it produce a ruling, would establish a precedent for the scope of the “safe harbor” provisions of the DMCA with respect to online service providers. The Google Book settlement, should it be upheld by the court, would actually foreclose a determination of the legality of scanning printed works to make them searchable as the negotiated agreement would not be a legally binding precedent.

Most eyes at the conference were on the Cablevision case, however.

In its August ruling, the Second Circuit Court of Appeals ruled that Cablevision’s network DVR does not infringe programmers’ copyrights by providing cable subscribers with remote recording and playback functionality, overturning a lower court ruling that it was infringing. The studio plaintiffs and appealed to the Supreme Court, and in January the court belayed a decision on whether to hear the case, asking the incoming Obama administration to give the court its views of the issues.

While the case has been portrayed as a replay of the Betamax case, Carson called the Second Circuit’s opinion “wacky,” with implications that go well beyond the Supreme Court’s 1984 ruling.

According to Carson, “It does real violence to fundamental aspects of copyright law,” particularly it holding that on-demand playback of the recorded programs does not represent a public performance of the work under copyright law.

Sohn, however, called the district court’s ruling in the case “whacked out,” suggesting it read “more like an engineering treatise than a legal opinion.”

“To me, the fact that we’re still arguing over whether buffer copies are a licensable event is what’s really wacky,” she said. “We have a pre-VCR law. That’s the problem.”

Others at the conference, however, said leaving matters to the courts comes at a high price.

YouTube chief counsel Zahavah Levine said the current rat’s nest of music rights makes it difficult, if not impossible, for online service providers to play by the rules, even when they try to.

“When our content identification system comes up with a match on the music [used in a video] we give the record companies options for how they want to respond,” she noted. “We’ll take it down if they want, or they can allow it, or let us sell advertising around it and share the revenue. Most of them actually choose to allow it and to sell advertising against it.”

That permission, however, applies only to the sound recording itself, not to the underlying song.

“The publishers have taken the position that streaming implicates both the performance right and the reproduction right,” Levine explained. “With the performance right, we can go to ASCAP, BMI and SEASAC, which we do and that’s not a problem. But there’s no licensing system for the reproduction right. We have to go to millions of music publishers individually to try to license the mechanical [right]. And on a lot of songs you can have three or four different publishers. It’s just impossible.”

Levine said Congress needed to intervene to clarify the status of streaming.

Songwriters Guild of America president Rick Carnes, however, accused YouTube of wanting to shift the administrative costs of licensing songs from itself to songwriters and their publishers.

“My publisher doesn’t recoup from the performance [royalty]. I recoup from the mechanical [royalty],” he said. “If we set up a licensing system for that, that’s taking 20 or 30% of my income because that would it would cost to administer that system.”

Future of Music Coalition general counsel Walter McDonough tried to sound an optimistic note.

“I think we’re actually evolving toward a point where this does become easier and we implement some sort of blanket licensing system,” he said. “But it’s going to take 10 years to get there. There are a lot of interests at stake and a lot of people who need to have their say, but that’s how these things go. Congress started hearings on the 1976 [Copyright] Act in the late Fifties.”

Good news for the lawyers, anyway.