WASHINGTON, Monday, June 13th, 2011 – The internet and intellectual property policy news and events service BroadbandBreakfast.com will hold its June 2011 Intellectual Property Breakfast Club event, “A Performance Right for Broadcasting: Will Radio Begin to Pay?” on Tuesday, June 14th, 2011 from 8 am – 10 am at Clyde’s of Gallery Place, 707 7th St. NW, Washington, DC 20001.
When a song airs on the radio, who should get royalties? Songwriters already get paid, but performers and record companies don’t get anything.
The U.S. stands alone among industrialized nations in not recognizing such a performance right for over-the-air broadcasting.
Will this change? Last year, the House Judiciary Committee passed such legislation by a 21 to 9 vote margin. (The bill never went to the floor of Congress.) And now the White House has recommended that Congress create this new right.
Will radio begin to pay? Join the Intellectual Property Breakfast Club for a showdown on this vital copyright question.
Intellectual property advocates, attorneys, broadcasters, artists, journalists, government officials and the general public, all seeking to trade insights on this important issue, are invited to attend this event, which includes full American and Continental breakfasts, for as little as $45.00, plus a modest registration fee. This event is on the record and open to the public.
Ryan Clough, Legislative Counsel, Congresswoman Zoe Lofgren (San Jose, CA)
Ryan Clough handles intellectual property, telecommunications, technology policy and issues within the jurisdiction of the House Judiciary Committee. Previously, he was an associate in the Washington office of Cleary, Gottlieb, Steen & Hamilton, and he has also practiced criminal law and appeals in California, including the representation of several death row inmates in post-conviction proceedings. Ryan has a B.A. from Emory University and a J.D. from Harvard Law School.
Brian Gantman, Counsel, Educational Media Foundation, KLOVE and AIR 1 Radio Networks
Brian Gantman is currently the Government Relations Director and In-House Counsel for Educational Media Foundation (EMF), which operates the non-commercial K-LOVE and Air 1 Radio Networks. EMF currently operates over 650 FM radio stations in 47 states and is the only non-commercial broadcaster in the Triton Media (formerly Ando Media) Top 20 Ranker for internet streaming. Brian is on the executive committee for the NRB’s non-commercial music licensing committee and was one of the negotiators in the 2009 webcaster streaming deal with SoundExchange for non-commercial broadcasters, as well the music licensing agreements with BMI, ASCAP and SESAC for the 2008-2012 royalty period and the upcoming 2013-2018 royalty period. Brian also negotiates financial and tax-exempt bond transactions with lenders on behalf of EMF for the acquisition of new stations and real estate transactions, including the purchase of EMF’s headquarters in California. He also negotiates EMF’s leases for office space, broadcast tower sites, ground leases, satellite and other vendor agreements.
David Oxenford, Partner, David Wright Tremaine
David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years, regularly counseling clients on all aspects of broadcast. He also negotiates purchase and sale agreements and other broadcast transactions.He also works with many others involved in the industry, including broadcast associations, media brokers, bankers, private equity funds, programming consultants, and technology companies.David also represents digital media companies, including a number of Internet radio companies. He represents these companies before the Copyright Office, the Copyright Royalty Board, and other government agencies, and advises them on music royalty issues and other copyright issues, as well as general business and regulatory matters. He represented webcasting groups that negotiated the Small Webcaster Settlement Act in 2002, the Pureplay Webcasters Agreement in 2009, and in 2010 represented the only commercial webcaster to litigate the Webcasting III case before the CRB. David is the editor and principal writer of DWT’s BroadcastLawBlog.com. His updates and advisories on broadcast and digital media topics are regularly published by various associations and trade publications, and he’s a regular speaker at state and national broadcasting, webcasting, music and digital media conferences and conventions.
Michael Petricone, Senior Vice President of Government Affairs, Consumer Electronics Association
In his position, Michael has been responsible for representing the CE industry position before Congress and the FCC on critical issues such as digital television broadband, privacy and home recording rights. Mr. Petricone is a frequent speaker on policy issues impacting the consumer electronics industry. Mr. Petricone received his law degree from Georgetown University Law Center and his undergraduate degree from Tufts University.
John L. Simson, President, John Simson Consulting
John L. Simson has been involved in the music industry since his 1971 signing with Perception Records as a recording artist. His career has included a ten year partnership in Studio One Artists, managing country superstar Mary Chapin Carpenter (1988-1995), and others. Simson has practiced entertainment law since 1980, and most recently was of counsel to the firm of Berliner, Corcoran & Rowe from 1990 through 1999. Simson joined SoundExchange in March of 2000 and served as its Executive Director from June of 2001 until December of 2010. Simson was elected to the Recording Academy Board of Governors in 1997 for the Washington, D.C. Branch, and served three years as a National Trustee of the Academy (1997-2000), served as Chapter President from 2003-2004 and finished an additional term as National Trustee in May (2006-2010). Simson was an adjunct professor of Entertainment Law at American University’s Washington College of Law from 2002-2006 and has lectured frequently on entertainment law, intellectual property and business issues.
Sylvia Strobel, Executive Director, Alliance for Community Media
At the ACM, Strobel directs national public policy initiatives, and works with a diverse membership base to provide nonprofit management training, advocacy support and strategic planning resources. Before joining the ACM, Strobel served as President and General Manager of the Pennsylvania Public Television Network Commission, where she restructured network operations, served as the liaison to the Governor’s Office and Pennsylvania General Assembly, and oversaw funding and grants for the state’s eight public television stations. In 1996, Strobel co-founded the law firm Lehmann Strobel PLC, where she is a partner providing legal and business consulting services to the nonprofit arts, cultural and media communities. Previously, she served as Deputy General Counsel/Director of Business Affairs for Twin Cities Public Television and in Business Affairs for the Corporation for Public Broadcasting. She was as an adjunct professor of Entertainment Law at Hamline University School of Law in St. Paul, Minnesota, and chaired the Art and Entertainment Law Committee of the Minnesota State Bar Association. Strobel received a Bachelor of Arts degree in Biology from St. Olaf College, a Juris Doctor from Wm. Mitchell College of Law and a Masters in Business Administration from the Carlson School of Management at the University of Minnesota.
The event will be moderated by Drew Clark, Founder and Publisher, BroadbandBreakfast.com, a news and events company building a community around broadband stimulus, the national broadband plan, and intellectual property. Drew Clark has a long-standing reputation for fairness and depth in his reporting. He worked for the National Journal Group for eight years, ran the telecommunications and media ownership project of the Center for Public Integrity, and was Assistant Director of the Information Economy Project at George Mason University. He has written widely on the politics of telecom, media and technology for a variety of publications, including the Washington Post, GigaOm, Slate, and Ars Technica. Drew launched BroadbandCensus.com in January 2008 as a means of providing objective information about broadband speeds, prices, availability, reliability and competition.
The Intellectual Property Breakfast Club is sponsored by the Intel Corporation, The National Cable & Telecommunications Association (NCTA) and Public Knowledge.
The Intellectual Property Breakfast Club series meets on the second Tuesday of each month (except for August). Registration for this event can be found at http://ipbreakfast.eventbrite.com
The Club schedule can be viewed at http://ipbreakfastseries.eventbrite.com.
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Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights
February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.
Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.
Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.
The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.
The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.
In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.
Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.
“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.
Congress didn’t have a clue on digital rights
What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.
Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.
Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.
Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.
During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.
Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.
Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.
In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright
October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.
The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.
The company has sued Google for more than $9 billion in damages.
Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.
Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.
He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.
“Google had the right to do this,” said Goldstein.
Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.
Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.
“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.
“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.
Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.
Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee
July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.
The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.
The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.
The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.
However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.
“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”
When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.
Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.
“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”
Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.
“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”
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