Spring 2010 Washington Update

Performance Rights Act

Music First, the Recording Industry Association of America (RIAA) and the National Association of Broadcasters (NAB) have begun private negotiations of the Performance Rights Act, which would establish a performance right for sound recordings in terrestrial radio. NMPA, the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), SESAC, Inc., Songwriters Guild of America (SGA), and the Nashville Songwriters Association International (NSAI) reiterated to Congressional staff that our agreement not to oppose the bill is contingent upon the inclusion of specific songwriter protection language in the final bill.

Intellectual Property Enforcement Coordinator

The PRO IP Act, enacted in 2008, created an Intellectual Property Enforcement Coordinator within the Executive Office of the President. On December 4, 2009, Victoria Espinel was confirmed by the full Senate as the first Intellectual Property Enforcement Coordinator (IPEC). NMPA has met with Ms. Espinel and will continue to discuss the Obama administration’s policies on intellectual property protection.  In addition, Ms. Espinel asked for public comments in order to help her develop the first White House Joint Strategic Plan. NMPA joined several other groups in the entertainment community and submitted a joint filing that outlined the organizations’ collective views. NMPA was also represented in comments filed by the International Intellectual Property Alliance (IIPA) and the Copyright Alliance.

Constitutionality of the Copyright Royalty Board

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.  On February 23, 2010, U.S. District Court Judge Reggie B. Walton issued his Memorandum Opinion ruling that the Copyright Royalty Judges (CRJs) are constitutional and denied Live365’s request for a preliminary injunction to stay the webcasting proceeding before the CRJs. In the memo, Judge Walton stated that the CRJs are inferior officers, and therefore their appointments do not offend the Appointments Clause of the Constitution.  Therefore, the CRJs’ past determinations, including the musical composition rate proceeding decision, will stay in effect. We will continue our dialogue with Congressional staff and will wait to see if Live365 appeals the District Court’s decision.

Google Book Settlement Update

On November 13, 2009, Google, the Authors Guild and the Association of American Publishers sought preliminary approval from the Court for their amended settlement, regarding an agreement to digitize books and other writings in the collections of
some of the most prominent libraries in the United States, seeking preliminary
approval by the Court.  On February 4, 2010, the Department of Justice objected to the new settlement. In its filing, DOJ said the new agreement was much improved from an earlier version. But it said the changes were not enough to placate concerns that the deal would grant Google a monopoly over millions of orphan works. DOJ also indicated that the revised agreement appeared to run afoul of authors’ copyrights and was too broad in scope. DOJ asked the court to encourage the parties to continue discussions on further changes to the settlement, which it said had many public benefits.  The final settlement fairness hearing was held on February 18, 2010. Judge Chin confirmed that he would not rule on the 18th as there was too much material to digest and would rule on this matter soon. Additionally, the American Society of Media Photographers and other photographic and visual art groups have filed a class action copyright infringement lawsuit against Google.

Songwriter/Music Publisher Mission Statement on Graduated Response

The NMPA has worked with songwriters, publishers and performing right organizations to develop a joint statement on the concept of graduated response, the concept of Internet Service Providers providing an incremental response to continued infringement of copyrighted content. Below is the statement:

Songwriters and music publishers continue to embrace the digital marketplace by working with digital media services to provide consumers with better ways to access legal music over the Internet.  However, global online theft of music is a devastating problem that affects all songwriters and publishers, whether by loss of direct sales of songs or lost opportunity for cultivating new talent.  In 2008 alone, 95 percent of music downloads were unauthorized (and unpaid for), and over 40 billion files were illegally file-shared, according to the International Federation of the Phonographic Industry (IFPI).  

We believe that implementation of a Graduated Response system is a key part of any serious effort to effectively combat online theft of creative works.  Graduated Response is the concept of Internet Service Providers’ (ISPs) providing an incremental response to continued infringement of copyrighted content by the same subscriber, by providing notices, warnings and eventual limitations of access.  A Graduated Response concept does not limit the existing civil and criminal remedies that already exist in current law.  Rather, such a concept provides an additional tool in the effort to curb theft of intellectual property.  Because they have a direct relationship with the infringing subscribers, Internet Service Providers have a special responsibility to help combat the theft of creative works over the Internet.

Several countries, including the United Kingdom, Ireland, New Zealand and France, have implemented or are in the process of implementing various types of graduated response.  It is unacceptable that the United States has fallen behind other countries in combating online theft of copyright works, when we are the leaders in producing intellectual property worldwide.  

The time has come for the ISPs to work with rightsholders in the United States to develop a Graduated Response strategy to end online theft.  We look forward to working with them and government officials to pursue such a strategy.