Member Alert
| NMPA Fall Legislative Update |
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Dear Members, This fall is a busy time in Congress for songwriters and music publishers. As always, NMPA is working hard to protect creators' rights. Below is an update on important issues that affect music publishers. We will continue to keep you updated. CONSTITUTIONALITY OF THE COPYRIGHT ROYALTY BOARD The constitutional standing of the CRB has been under attack. It began on May 13, 2008, when Royalty Logic, LLC, filed a supplemental brief with the D.C. Court of Appeals in Intercollegiate Broadcast System v. Copyright Royalty Board asking the court to vacate the CRB's decision in the webcasting rate proceeding based on their argument that the appointment of the Copyright Royalty Judges by the Librarian of Congress is unconstitutional as the appointment violates the Appointments Clause of the Constitution. On July 10, 2009, the Court of Appeals declined to rule on the constitutionality question 'on the basis of hasty, inadequate and untimely briefing.' While the court also expressed an ongoing concern regarding the appointment of the CRB Judges, the court's decision was a short reprieve and allowed the affected parties a chance to attempt to resolve the issue through legislation. However, on August 31, 2009, LIVE365, an aggregator of digital radio stations and a participant in the webcasting royalty proceedings, filed a Complaint for Declaratory and Injunctive Relief with the United States District Court for the District of Columbia challenging the constitutionality of the Copyright Royalty Board. LIVE365 argued that the appointment of the CRB judges by the Librarian of Congress violates the Appointments Clause because either the CRJs are principal officers who must be appointed by the President; or the CRJ's are inferior officers who must be appointed by the Head of a Department, and the Librarian of Congress is not the Head of a Department. LIVE365 is asking the court to declare that the CRB is unconstitutional and was seeking a preliminary injunction staying all current and future proceedings before the CRB. On September 28, 2009, the district court denied the preliminary injunction and stated that it would issue a memorandum opinion resolving the defendants' motion to dismiss the request for a declaratory judgment within the next 30 days. NMPA has been in a dialogue with key Congressional staff about introducing legislation to make it clear that the CRB is constitutional and to codify all past determinations, and we will continue to work with them to find the best solution and the best time to introduce the legislation, given the speed in which the district court is moving. GOOGLE BOOK SETTLEMENT In 2004, Google entered into agreements to digitize books and other writings in the collections of some of the most prominent libraries in the United States. In response, the Authors Guild and the Association of American Publishers filed a copyright infringement class action lawsuit against Google. The parties to the class action lawsuit agreed to settle the case in October 2008. The class action settlement, if approved, will bind a Class consisting of all persons who have a U.S. copyright interest in a Book or Insert (as defined in the agreement), whether currently in print or not, prior to January 5, 2009. Although the settlement specifically excludes 'Sheet music and other works that are used primarily for the playing of music,' songwriters and music publishers' works will be implicated since the definitions of 'Book' and 'Insert' include certain bootstrapping references to and definitions of music and lyrics. U.S. District Judge Denny Chin has now set a November 9, 2009 deadline for submission of a revised agreement now that Google, the authors and book publishers are working to reach a new deal by early November. The $125 million agreement is being renegotiated after it was heavily criticized by many of the more than 400 submissions that Judge Chin received prior to a fairness hearing originally scheduled for October 7, 2009. Additionally, the Justice Department stated that the deal 'raises significant legal concerns' and is probably a violation of federal antitrust law. NMPA will continue to keep you updated. NET NEUTRALITY NMPA's position on Net Neutrality is as follows: Rampant theft of creative works on the Internet diminishes creativity, costs American jobs, weakens our economy, and clogs broadband networks. Unless carefully managed, an increase in broadband penetration may simply increase the scope of the problem, with no corresponding benefit for Internet users. As federal policymakers consider whether to establish nondiscrimination rules governing the Internet, we believe it is essential that Internet service providers be permitted, and indeed encouraged, to implement reasonable network management techniques to protect against the theft of creative works and other unlawful activity. On July 31, 2009, Rep. Ted Markey (D-MA) and Anna Eshoo (D-CA) introduced the Markey-Eshoo Net Neutrality bill, HR 3458. The bill imposes nondiscrimination among legal content provided by the Internet Service Providers and addresses network management by allowing the Federal Communications Commission (FCC) to define the term. It includes a section saying nothing in this act shall be construed to affect prohibited or unlawful activity including theft of content. This bill has been referred to the House Energy and Commerce Committee. Recently, the FCC Chairman, Julius Genachowski, stated that the FCC will support net neutrality and will enforce any violation of net neutrality principles in order to further his position to 'keep the Internet fair, free and open to all Americans.' Mr. Genachowski also stated that he plans to have the FCC's six 'principles of network openness' formalized as official rules that will apply to both wired and wireless networks, which will give the FCC the power to regulate the issue. The principles are: Freedom to Access Content - consumers should have access to their choice of legal content. Freedom to Use Applications - consumers should be able to run applications of their choice. Freedom to Attach Personal Devices - consumers should be permitted to attach any devices they choose to the connection in their homes. Freedom to Obtain Service Plan Information - consumers should receive meaningful information regarding their service plans. Non-discrimination - broadband providers cannot discriminate against particular Internet content or applications. Transparency - providers of broadband Internet access must be transparent about their network management practices. NMPA will continue to make its voice heard about the need for reasonable network management. SOUND RECORDING PERFORMANCE RIGHT Performing artists and record labels have asked Congress to enact legislation that will establish a performance right for sound recordings in terrestrial radio. On May 13, 2009, the House Judiciary Committee passed the Performance Rights Act, H.R. 848. NMPA worked with Congressman John Conyers (D-MI), Chairman of the House Judiciary Committee and sponsor of the Performance Rights Act, and his staff to include important songwriter protection language in the bill, ensuring that songwriters are not harmed in the process of creating this new performance right for performers and record labels. The next step is consideration by the full House of Representatives. The Senate has a similar bill (S. 379) that has not yet been reported out of the Senate Judiciary Committee. On September 15, 2009, the Senate Judiciary Committee is scheduled to consider the Performance Rights Act. The Digital Media Association (DiMA) has expressed concern with the proposed songwriter protection amendments, that were included in the House bill and that we are asking to be included in the Senate version. NMPA, ASCAP, BMI, SESAC, SGA, and NSAI are working with Senate Judiciary staff to ensure that comprehensive, enforceable songwriter protection language is included in the Senate version of the bill. PUBLIC PERFORMANCE IN AN AUDIO VISUAL DOWNLOAD Songwriters and composers collect a public performance royalty any time their music is included in any audiovisual work, including movies, television, videos or video games. However, when the audiovisual work is digitally distributed as a download, no public performance royalty is paid. NMPA is working with the Performing Rights Organizations - ASCAP, BMI, SESAC, and the Songwriter Groups - NSAI, and SGA to ask Congress to clarify the law that a musical work public performance royalty should be paid on Audiovisual downloads. No legislation has been introduced. ORPHAN WORKS Orphan works legislation passed the Senate in the 110th Congress, and Senator Leahy will attempt to move this legislation at some point this Congress. In the House, Chairman Conyers will be the lead on orphan works legislation, and NMPA has met with Cong. Conyers' staff and Senator Leahy's staff to discuss our position on orphan works and to stress that it is very important to include protections for copyright owners. ANTI-PIRACY ENFORCEMENT NMPA is a part of the Chamber of Commerce's Coalition Against Counterfeiting and Piracy (CACP), which includes over 600 businesses and associations working to stop piracy. Through this group, we are working to secure funding of the PRO IP Act, anti-piracy legislation that was enacted in 2008, and are working with the House and Senate Judiciary Committees and Finance Committees to bolster the protection of intellectual property. ++The information contained in this Member Alert does not constitute legal advice. About the NMPA Founded in 1917, the National Music Publishers' Association (NMPA) is a trade association representing American music publishers. The NMPA's mandate is to protect and advance the interests of music publishers and their songwriter partners in matters relating to the domestic and global protection of music copyrights. # # # |
