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(You
MAY need the FREE QuickTime
plug-in to view and hear s90tv) ReturnTop 01.
NAB2003
. . . Las Vegas, Nevada
Conferences:
In 1903 --
the National Association of Broadcasters Seeks
Relief To Play Recordings Over Internet! TVI
Magazine Reporters Attending Event: Pete Allman,
Gary Sunkin, Josie Cory and Barry
Seybert. START
HERE /
PLAINTIFFS •FIRST
CLAIM Research and opinions on
Bonneville Industries v. Marybeth Peters More
About NAB -
Compiled
by: Josie Cory,
Publisher/Editor TVI
Magazine More
Articles
Converging
News MARCH 2007 / TeleCom BuyOuts,
Spinoffs
and Asset Seizure Boom MORE
ABOUT THE Updates on the NAB STREAMING MUSIC LEGAL
ACTION
ASSOCIATION OF
BROADCASTERS
vs
NY1:\962590\14\KMQM14!.DOC\64894.0003 Respectfully
Submitted 109 / Education THIS
WEEK'S COVER • TVI
Magazine HOLLYWOOD
BEAT LookRadio AMAZON SoulFind NBS100 • 120 PIXELS 3
columns 40 40+110+570=720
107
-
120
-
NAB2002
Copyrights
• SMART90.com/nab02copyrightUpdates.htm
Click
for tviNews PERSON OF THE
WEEK
•The
National Association of
Broadcasters
NAB
2003 NAB vs USA Updates
Las
Vegas, Nevada
ReturnTop
ˆ
ˆ
COPYRIGHT OFFICE AT THE LIBRARY
OF
CONGRESS
Appellants
argue that the narrow reading of broadcast
transmission --
makes the word "nonsubscription" -- a factor.
(Declaratory Relief With Respect
To
Sections
112 And 114 Of The Copyright
Act)
•••
BONNEVILLE INTERNATIONAL CORPORATION, :
•••
COX RADIO, INC., EMMIS COMMUNICATIONS :
•••
CORPORATION, ENTERCOM COMMUNICATIONS :
•••
CORP., INFINITY BROADCASTING CORPORATION, :
•••
SUSQUEHANNA RADIO CORP., AND NATIONAL :
•••
ASSOCIATION OF BROADCASTERS, : Plaintiffs, :
•••
C.A. No. :
•••
&endash; Against &endash;
:
MARYBETH PETERS,
IN HER
OFFICIAL CAPACITY : AS REGISTER OF COPYRIGHTS FOR
THE UNITED : STATES COPYRIGHT OFFICE AT THE LIBRARY
OF CONGRESS, Defendant. :
Part
02/
• NATURE OF ACTION
•••
• Statutory construction of Sections 106, 112,
and 114 of the Copyright Act of 1976, 17 U.S.C.
§§ 101 et seq., as amended. Plaintiffs
seek judicial review of an administrative "final
rule" NY1:\962590\14\KMQM14!.DOC\64894.0003 2
issued by the defendant on December 11, 2000 (see
65 Fed. Reg. 77292), which provides that AM/FM
radio broadcast signals transmitted simultaneously
over a digital communications network, such as the
Internet, are subject to the sound recording
copyright owner's exclusive right of performance by
means of digital audio transmission.
•••
• The issuance of that rule exceeded
defendant's statutory authority, was arbitrary,
capricious, an abuse of discretion, and otherwise
not in accordance with law, and therefore is
invalid. To hold otherwise could profoundly affect
the ability of the radio broadcasting industry to
keep abreast of modern technology by offering radio
station programming on a nonsubscription basis over
the Internet.
•••
• As defendant would have it, Congress sub
silentio intended, by passage of the Digital
Millennium Copyright Act ("DMCA"), fundamentally to
reorder the legal and economic relationships
between the broadcast radio and recording
industries in a manner that could wreak havoc with
over-the- air broadcast radio formats and stifle
the offer of streamed over-the-air radio broadcast
programming over the Internet.- CLICK
TO SEE MORE OF NATURE OF CASE - Paragraphs 2 to 36
of ORIGINAL COMPAINT
••
• 37. Plaintiff Broadcasters and other NAB
members are adversely affected and aggrieved by the
Rule in that many FCC-licensed radio broadcasters
have engaged, are engaging, or have the ability to
engage in radio broadcast streaming activities
that, according to the Rule, are subject to the
digital performance right in sound recordings and
ineligible for the Section 112(a) single ephemeral
copy exemption.
•••
• 38. As a result of the Copyright Office's
issuance of the Rule, the plaintiffs have suffered
a legal wrong to interests that are within the zone
of interests protected or regulated by the
Copyright Act.
•••
• 39. This action presents a substantial,
real, and immediate controversy between parties
having adverse legal interests, such that
declaratory relief is warranted. Absent declaratory
relief, Plaintiff Broadcasters and other NAB
members will suffer substantial hardship in that
they may incur considerable potential copyright
liability &endash; whether in the form of compelled
royalties pursuant to compulsory licenses or
arising under actual or threatened copyright
infringement claims by individual rights
holders.
•••
• 40. Plaintiffs are entitled to a declaratory
judgment invalidating the Rule and declaring (i)
that Section 114(d)(1)(A) exempts FCC-licensed
radio broadcasters who engage in the
nonsubscription, simultaneous transmission of their
over-the- air radio programming from the digital
performance right set forth in Section 106(6) of
the Copyright Act with respect to such streaming
activities, and that such broadcasters require
neither a compulsory license under Section 114 nor
a discretionary license by individual copyright
holders of such sound recordings to engage in such
nonsubscription Page 14
NY1:\962590\14\KMQM14!.DOC\64894.0003 14 streaming
activities and (ii) that FCC-licensed radio
broadcasters who engage in the simultaneous,
nonsubscription streaming of their over-the-air
radio programming are eligible for the single
ephemeral copy exemption provided in Section 112(a)
of the Copyright Act.
•••
• WHEREFORE, plaintiffs pray that the Court:
A. Declare, adjudge, and decree that the Rule
issued December 11, 2000 (see 65 Fed. Reg. 77292),
by the defendant is inconsistent with Section
114(d)(1)(A) of the Copyright Act, in excess of the
Copyright Office's statutory authority, arbitrary,
capricious, an abuse of discretion, and invalid as
a matter of law; B. Declare, adjudge, and decree
that, pursuant to Section 114(d)(1)(A) of the
Copyright Act, the simultaneous, nonsubscription
streaming by FCC-licensed radio broadcasters of
their over-the-air radio broadcast programming is
exempt from the digital performance right in sound
recordings set forth in Section 106(6) of the
Copyright Act, and thus does not require either a
compulsory license under Section 114 of the
Copyright Act or a discretionary license by owners
of the digital performance right in sound
recordings set forth in Section 106(6) of the
Copyright Act; C. Declare, adjudge, and decree that
FCC-licensed radio broadcasters who engage in the
simultaneous, nonsubscription streaming of their
over-the-air radio programming are eligible for the
single ephemeral copy exemption provided in Section
•112(a) of the Copyright Act; and Page 15
NY1:\962590\14\KMQM14!.DOC\64894.0003 15 D.
•••
• Award such additional and further relief, in
law and equity, as the Court may deem just and
proper.
•••
• Dated: January 25, 2001 Philadelphia,
Pennsylvania By: Marguerite S. Walsh (Attorney ID
No. 30459) BUCHANAN INGERSOLL Eleven Penn
Center. CLICK
TO SEE MORE about First Claim OF CASE from ORIGINAL
COMPAINT
•••
Finished reading the opinion, NAB; Bonneville
Industries et al v. MaryBeth Peters. It's a
pretty instructive look at the kind of thing that
Jessica Litman discusses in Digital Copyright --
the way that the negotiation over rights in
copyright becomes central to understanding what is,
and is not, covered in each incarnation of the law
of copyright.
•••
I also found it instructive from the
perspective of administrative procedure, the part
of the law that I spent most of my time on when I
was a student. There's a whole subtext in the
opinion about whether to apply a more stringent
level of scrutiny to certain action of the
Copyright Office during formal notice and comment
rulemaking, whose relevance is rejected because the
Copyright Office's actions a appropriate under
either criterion (in the view of the court) so the
court does not need to distrnguish between the
two.
•••
Essentially, the case centers on parsing the
meaning of "nonsubscription broadcast transmission"
(something exempted from licensing fees to
recording companies in digital transmissions of
sound recordings) and whether an AM/FM station's
simultaneous webcasting of their over-the-air
broadcasts are such a transmission. While the issue
of nonsubscription is easy to satisfy, the
definition of a "broadcast transmission" takes the
court to the Federal Communications Act, which says
a "'broadcast transmission' is a transmission made
by a terrestrial broadcast station licensed as such
by the Federal Communications Commission."
•••
Here's where the plaintiff's argument founders on
the rocky shoals of the court's analysis. The
plaintiffs argue that licensees must be firms,
rather than physical plant, and therefore any firm
that operates an FCC licensed broadcast station is
exempt. The Court determines that such an
interpretation makes the exemption far broader than
Congress intended, and that therefore broadcasts
are the product of physical facilities, rather than
the product of a firm.
•••
Frankly, by the time you get through all this, the
case seems pretty mundane, but then the court
(whose footnotes are indicative of the fact that
this judge has been paying pretty close attention
to the copyright issues in music -- see below)
slips in this stunning bit of insight:
•
Note:
Aside
from the miracle of the word "surplusage," (!!) we
see here an explicit judicial appreciation that
access to a digital broadcast transmission can be
limited &emdash; via digital rights management, of
course -- and thus is inherently different from
analog transmission, whose access cannot be so
controlled. Unarticulated, of course, is the fact
that this control is only sustainable when coupled
with the DMCA's anticircumvention provisions.
•
JUDGE FOOTNOTES:
Appellants
argue that this narrow reading of broadcast
transmission makes the word "nonsubscription" in
the phrase "nonsubscription broadcast transmission"
surplusage, since all over-the-air broadcasts are
currently nonsubscription broadcasts. See Bailey v.
United States, 516 U.S. 137, 146 (1995) (holding
that each term in a statute should have a
"particular, nonsuperfluous meaning").
•••
We disagree. All over-the-air broadcasts are
currently nonsubscription because they are analog.
It is our understanding that analog radio
technology is not capable of providing a
subscription broadcast transmission. In comparison,
§§ 106 and 114 are concerned with digital
transmissions.
•••
With digital over-the-air transmission technology
it is possible for transmitters to provide their
transmission services on a subscription basis.
Inasmuch as the legislative history indicates that
Congress was anticipating the technology of digital
radio when it formulated § 114(d)(1)(A), 1995
Senate Report, at 19 (App. at A718) ("
•••
[T]he Committee intends that
[over-the-air] transmissions be exempt
regardless of whether they are in a digital or
nondigital format, in whole or in part."), we find
it perfectly reasonable to conclude that Congress
was also anticipating that digital radio
potentially could give rise to subscription radio
services and chose expressly to distinguish such
services from nonsubscription digital overthe-air
radio services. [emphasis added]
More
on Bonneville Industries v. Marybeth Peters - By
Fulong
-----It
is the destiny of Las Vegas to be discovered over
and over again. The history of the city can be told
of discoveries -- and NAB is back Nevada --
rediscovering Las Vegas !!!!
-----The
name "Las Vegas" was tagged by the Spanish
explorers who first discovered it in 1829. They
first called it "the Meadows" - but changed the
name when they discovered the lush meadows which
were fed by a natural water reserve found in the
midst of the desert. MORE
STORY ABOUT LAS VEGAS
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Josie
Cory
Publisher/Editor
TVI
Magazine
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The National Association of Broadcasters NAB2003 -
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MARYBETH
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on Streaming
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