Courts and Congress Put Spotlight on Copyright Office

The federal Ninth Circuit Court of Appeals handed broadcasters a major win this week in their long-running legal battle with Aereo-clone Film On. A unanimous three-judge panel overturned a lower court ruling, which had held that FilmOn was eligible for the compulsory license under Section 111 of the Copyright Act that allows “cable systems” to retransmit copyrighted programming contained in broadcast signals without needing to get permission from the copyright holders.

In overturning that ruling, the circuit court closed an apparent loophole created by the Supreme Court in its 2014 ruling against Aereo, in which it held that Aereo was infringing broadcasters’ public performance right by retransmitting broadcast signals over the internet. In addressing whether Aereo was “transmitting” broadcast signals as defined in the statute, Justice Stephen Breyer reasoned that Aereo was acting, for all intents and purposes, like a cable system, which unambiguously “transmits” a signal, and therefore Aereo required a license under the statute’s Transmit Clause.

Maria Pallante

FilmOn seized on that reasoning to argue in its defense against a lawsuit brought by Fox, that it should be treated as a cable system for purposes of the compulsory license, which is a related but legally separate issue under the law. Several courts rejected that argument (FilmOn was sued in multiple jurisdictions) but one judge, U.S. District Court Judge George Wu, accepted it, ruling in Aereo’s favor, which led to Fox’s appeal to the Ninth Circuit. Read More »

Fahrenheit 1201: DMCA Showdown at the Library of Congress

The Electronic Frontier Foundation on Thursday filed a lawsuit in U.S. District Court in Washington, DC, challenging Sections 1201, 1203, and 1204 of the Digital Millennium Copyright Act, known as the “anti-circumvention provisions,” on constitutional grounds.

That, in itself, is not particularly surprising. EFF served as pro bono counsel to Eric Corley in one of the first major cases to test Section 1201 in court and has been an outspoken critic of the law since it was enacted in 1998. What makes this week’s filing notable is its timing and EFF’s apparent strategy.

Library_of_Congress_(1)Section 1201 broadly prohibits the circumvention of DRM (“technical protection measures,” or TPMs in the language of the statute) used to protect access to copyrighted works (Section 1203 prohibits “trafficking” in anti-circumvention technologies and Section 1204 provides for criminal penalties for violating Section 1201). In its lawsuit, filed on behalf of a computer security researcher and a technology inventor and entrepreneur, EFF claims the three provisions violate the First Amendment because they prevent people from engaging in what would otherwise be protected speech under the fair use doctrine in copyright law — an argument raised many times before.

But the complaint also takes direct aim at the law’s triennial rulemaking procedures by which members of the public are allowed to apply to the Library of Congress for an exemption to the anti-circumvention rules for specific purposes. The complaint declares the rulemaking itself “an unconstitutional speech-licensing regime.” Read More »

Voices Raised Over Librarian of Congress Nominee

The Librarian of Congress is not generally considered a controversial post within the government. There have only been 13 of them in the Library’s 216-year history, which tells you something about the urgency with which Congress has historically regarded the appointment.

The job is largely administrative, charged with overseeing the libraries vast collection and providing research assistance to Congress. But it also

Dr. Carla Hayden

Dr. Carla Hayden

has some policy-making authority, exercised most prominently in recent decades through its oversight of the U.S. Copyright Office, which is a division of the Library.

Under Section 1201 of the Digital Millennium Copyright Act the Copyright Office must conduct a triennial rulemaking proceeding to determine whether certain types of copyrighted works protected by access control technologies (“technical protection measures”), should be exempted from the DMCA’s ban on circumventing such measures in certain circumstances.

The process has, among other things, led to recognition of a right to unlock a cell phone so it can be used on another network and to circumvent DRM on DVDs for certain teaching purposes, and the right to circumvent DRM on ebooks to allow them to be used with screen readers to assist the visually impaired. Read More »