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(You
MAY need the FREE QuickTime
plug-in to view and hear s90tv) ReturnTop The
National Association of Broadcasters Show Remains on Track for a Strong Year! 01.
NAB2003
. . . Las Vegas, Nevada
Conferences:
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. (Declaratory
Relief With Respect
To START
HERE /
PLAINTIFFS •••
• 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. 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 • 120 PIXELS 3
columns 40 40+110+570=720
107
-
120
-
NAB2002
Copyrights
• SMART90.com/nab02copyrights
Click
for tviNews PERSON OF THE
WEEK
•The
National Association of
Broadcasters
NAB
2003
Las
Vegas, Nevada
ReturnTop
ˆ
ˆ
TVInews
- 107 The National Association of Broadcasters
NAB2003 - Las Vegas, Nevada - Josie Cory, Pete
Allman, Gary Sunkin
/ Las
Vegas, Nevada
NAB
Highlights
- NAB
vs THE UNITED STATES Streaming
the Internet with music / HISTORY OF LAS
VEGAS
The
National Association of
Broadcasters
NAB2003
. . . Las Vegas, Nevada
Conferences:
April 5 - 10 " Exhibits: April 7 - 10 "
Las
Vegas, Nevada NAB Law Suit
Highlights
www.nab.org/conventions • 202
429-5350
MORE / PHOTO
IMAGES
COPYRIGHT OFFICE AT THE LIBRARY
OF
CONGRESS
FIRST
CLAIM
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. :
•••
:
•••
-----------------------------------------------------------------------x
•••
• 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.
•••
• 2. If subjected to liability under the DMCA,
broadcasters desiring to stream their over-the-air
programming would be forced either to engage in a
multiplicity of individual negotiations with the
copyright owners of every sound recording they
stream (with the right of any such copyright owner
to withhold license authority) or, if, but only if,
they qualify, to secure a compulsory license
covering such streaming. The conditions attendant
to qualifying for compulsory licenses are, however,
onerous, and plainly were not drafted with the
formats of over-the-air broadcasters in mind. It
is, accordingly, far from certain that
nonsubscription, streamed over-the-air broadcasts
would qualify for statutory license protection.
NY1:\962590\14\KMQM14!.DOC\64894.0003 3 PARTIES
•••
• 3. Plaintiff Bonneville International
Corporation is a corporation organized and existing
under the laws of the State of Utah and having its
principal place of business in Salt Lake City,
Utah.
•••
• 4. Plaintiff Cox Radio, Inc. is a
corporation organized and existing under the laws
of the State of Delaware and having its principal
place of business in Atlanta, Georgia.
•••
• 5. Plaintiff Emmis Communications
Corporation is a corporation organized and existing
under the laws of the State of Indiana and having
its principal place of business in Indianapolis,
Indiana.
•••
• 6. Plaintiff Entercom Communications Corp.
is a corporation organized and existing under the
laws of the Commonwealth of Pennsylvania and having
its principal place of business in Bala Cynwyd,
Pennsylvania.
•••
• 7. Plaintiff Infinity Broadcasting
Corporation is a corporation organized and existing
under the laws of the State of Delaware and having
its principal place of business in New York, New
York.
•••
• 8. Plaintiff Susquehanna Radio Corp. is a
corporation organized and existing under the laws
of the Commonwealth of Pennsylvania and having its
principal place of business in York,
Pennsylvania.
•••
• 9. Plaintiff National Association of
Broadcasters is a not-for-profit corporation
organized and existing under the laws of the
District of Columbia and having its principal place
of business in the District of Columbia.
•••
• 10. Defendant Marybeth Peters, referred to
herein as "Copyright
NY1:\962590\14\KMQM14!.DOC\64894.0003 4 Office" or
the "defendant," is the Register of Copyrights for
the United States Copyright Office at the Library
of Congress in Washington, D.C. JURISDICTION AND
VENUE
•••
• 11. This action arises under the
Administrative Procedure Act, 5 U.S.C. §§
551 et seq., as amended ("APA"), and the Copyright
Act of 1976, 17 U.S.C. §§ 101 et seq., as
amended ("Copyright Act" or "Act").
•••
• 12. Jurisdiction of this Court is proper
under Sections 702, 703, and 704 of the APA, 5
U.S.C. §§ 702-04, and Sections 1331 and
1338(a) of the Judicial Code,
•••
• 28 U.S.C. §§ 1331, 1338(a).
Declaratory relief is proper under Section 2201(a)
of the Judicial Code, 28 U.S.C. § 2201(a).
•••
• 13. Judicial review is not precluded by
statute, nor is the administrative action under
review committed to agency discretion by law.
Appeal to a superior agency authority is neither
necessary nor available.
•••
• 14. Venue is proper in this district
pursuant to 28 U.S.C. § 1391(e) because no
real property is involved in the action and
plaintiffs reside in this district. FACTS I.
Broadcaster Activities
•••
• 15. Collectively, the Plaintiff Broadcasters
operate and/or own hundreds of AM and FM radio
stations across the country licensed by the Federal
Communications Commission ("FCC") to transmit radio
broadcast programming over the airwaves.
NY1:\962590\14\KMQM14!.DOC\64894.0003 5
•••
• 16. For the past 75 years, the NAB has acted
as the principal trade association for the radio
and television broadcast industries. The NAB has
represented the interests of these industries
before Congress and various federal agencies and
courts. NAB members operate more than five thousand
(5,000) AM and FM radio stations licensed by the
FCC to deliver over-the-air radio broadcasts to the
public. The Plaintiff Broadcasters are all members
of the NAB.
•••
• 17. In addition to transmitting their radio
broadcasts over-the-air, many FCC-licensed radio
stations now transmit their radio broadcast
programming simultaneously to listeners via the
Internet. This activity is known as the "streaming"
of radio broadcasts over the Internet.
•••
• 18. Plaintiff Broadcasters, as well as many
other NAB radio broadcast members, either have
engaged in simultaneous streaming of radio
broadcasts over the Internet or have the ability to
do so.
•••
• 19. No additional license is required for an
FCC-licensed radio station to stream its
over-the-air radio broadcast simultaneously over
the Internet. Plaintiff Broadcasters do not charge
listeners any fee for receiving such streamed radio
broadcasts. II. Background of Performance Rights in
Sound Recordings
•••
• 20. U.S. copyright law confers a series of
enumerated rights upon the owners of various works
of creative expression. These are set forth in
Section 106 of the Copyright Act. These enumerated
rights are, in turn, subject to a series of
limitations and exemptions, which are set forth in
Sections 107 through 121 of the Act.
•••
• 21. With respect to musical works, the
copyright law long has recognized an exclusive
right of public performance in a musical
composition (i.e., the
NY1:\962590\14\KMQM14!.DOC\64894.0003 6 work of a
composer). See 17 U.S.C. § 106(4). However,
prior to 1971, U.S. copyright law did not recognize
any copyright in sound recordings embodying such
musical compositions.
•••
• 22. In 1971, Congress first extended limited
federal copyright protection to sound recordings on
a provisional basis with the Sound Recording
Amendment of 1971, Pub. L. No. 92-140, 85 Stat. 391
(1971). The Sound Recording Amendment of 1971
created a limited copyright in reproductions and
the distribution of reproductions of sound
recordings, for the purpose of preventing
widespread record piracy (unauthorized commercial
copying and sale of sound recordings) that resulted
from advances in duplicating technology. Congress
further made clear that sound recordings were not
granted a public performance right and that the
reproduction right was limited to direct recapture
of the actual sounds of the original recording.
Congress made the provisional sound recording
reproduction right permanent with enactment of the
1976 Copyright Act.
•••
• 23. For more than two decades, from 1971 to
1995, the sound recording copyright remained the
very limited right, described above, that applied
only to sound recordings fixed in a phonorecord on
or after February 15, 1972, and that did not
include any right in public performances of such
sound recordings. Thus, although a public
performance of a sound recording might require a
license from the owner of the underlying musical
composition (i.e., the composer or administering
music publisher), no license was required from the
owner of the copyright in the sound recording
itself (i.e., the record label) with respect to
such performance.
•••
• 24. Until 1995, Congress repeatedly rebuffed
efforts by the recording
NY1:\962590\14\KMQM14!.DOC\64894.0003 7 industry to
expand the copyright rights in sound recordings to
encompass public performances of those works,
including performances by radio broadcasters.
Congress recognized that performances of sound
recordings by broadcasters provide mass audience
exposure to artists and recordings, stimulating
sales of those recordings. Congress properly
regarded imposition of a new performance right
obligation on broadcasters as an unwarranted
windfall to the record industry. Congress also
recognized that granting such a right would
interfere with the long-standing, mutually
beneficial relationship between the record and
radio industries. A. Digital Performance Right in
Sound Recordings Act of 1995
•••
• 25. In 1995, with enactment of the Digital
Performance Right in Sound Recordings Act ("DPRA"),
Congress incrementally expanded the scope of
copyright protection afforded to sound recordings
to include a new &endash; but very limited &endash;
right for public performances of sound recordings
by means of certain types of digital audio
transmission. See 17 U.S.C. § 106(6). The DPRA
set forth in Section 114 of the Copyright Act
exemptions from and other limitations on this
right.
•••
• 26. Much like the enactment of the Sound
Recording Amendment of
•••
• 1971, the DPRA was a limited and
circumscribed response to technological advances,
specifically, the emergence of digital audio
services capable of delivering high-quality,
digital audio transmissions of sound recordings to
subscribers in their homes, generally without
commercial interruption, and the anticipated advent
of interactive "audio-on-demand" services, such as
so-called "celestial jukeboxes" or "pay-per-listen"
services, which would enable listeners to obtain a
direct, time-certain transmission of a specific
sound recording. Congress's concern was that such
services might directly substitute for
NY1:\962590\14\KMQM14!.DOC\64894.0003 8 consumer
record purchases or increase the potential for
at-home reproduction of sound recordings that would
diminish the sale of sound recordings by the record
labels. H. Rep. No. 104-274, at 5-9 (1995).
•••
• 27. Consistent with the identified areas of
concern and the perceived commercial threat of
each, Congress adopted, in amended Section 114, a
carefully calibrated, three-tiered approach to the
new digital performance right. Those transmissions
perceived to have the highest potential to replace
sales, such as those engaged in by "interactive"
services, were made subject to discretionary
licenses from individual rights holders. With
respect to such transmissions, the transmitting
entity was required to obtain a license directly
from the individual rights holders on mutually
agreed terms and conditions. Any individual rights
holder had the authority, in its sole discretion,
to refuse to license the proposed transmission.
•••
• 28. In a middle category, Section 114 of the
Copyright Act, as amended by the DPRA, provided
that certain non-interactive, subscription digital
transmissions covered by and not exempt from the
new Section 106(6) copyright in the public
performance of sound recordings were subject to a
statutory license, which compelled individual
copyright owners to grant permission, upon request,
for qualifying performances that comply with
enumerated conditions. In the event representatives
of the copyright owners and representatives of the
potential users could not agree on a negotiated
license rate, any interested party was permitted to
petition the Library of Congress to convene a
Copyright Arbitration Royalty Panel ("CARP") for a
determination of what constitutes a "reasonable"
rate for a compulsory license for the intended use.
NY1:\962590\14\KMQM14!.DOC\64894.0003 9
•••
• 29. Amended Section 114's final category
entailed transmissions that were exempted from the
new sound recording performance right, principally
because such transmissions were viewed as posing
little or no threat to replace sales of sound
recordings. Congress made clear, in particular,
that it did not wish to make any changes to the law
that would adversely affect the long-standing,
mutually beneficial relationship that existed
between the record and radio industries. Thus, in
addition to a broad, general exemption for
nonsubscription transmissions, Congress
specifically exempted "nonsubscription broadcast
transmissions."
•••
• As amended by the DPRA, Section 114(d)(1)(A)
of the Copyright Act provided as follows: (d)
LIMITATIONS ON EXCLUSIVE RIGHT. &endash;
Notwithstanding the provisions of section 106(6)
&endash; (1) EXEMPT TRANSMISSIONS AND
RETRANSMISSIONS. &endash; The performance of a
sound recording publicly by means of a digital
audio transmission, other than as part of an
interactive service, is not an infringement of
section 106(6) if the performance is part of
&endash; (A) * * * * (iii) a nonsubscription
broadcast transmission[.] Section 114(j) of
the Act, as amended by the DPRA, defined a
"nonsubscription" transmission as "any transmission
that is not a subscription transmission" and in
turn defined a "subscription" transmission as "a
transmission that is controlled and limited to
particular recipients, and for which consideration
is required to be paid or otherwise given by or on
behalf of the recipient to receive the transmission
or a package of
NY1:\962590\14\KMQM14!.DOC\64894.0003 10
transmissions including the transmission." Section
114(j), as amended by the DPRA, specifically
defined a "broadcast" transmission as "a
transmission made by a terrestrial broadcast
station licensed as such by the Federal
Communications Commission." B. Digital Millennium
Copyright Act of 1998
•••
• 30. In the Digital Millennium Copyright Act
of 1998 ("DMCA"), Congress retained the
three-tiered licensing framework created by the
DPRA, which reflected the graduated scale of
perceived risks to sound recording sales posed by
different categories of digital audio
transmissions. While the DMCA expanded the sound
recording public performance right to cover certain
nonsubscription digital audio transmissions not
previously subject to copyright protection, and
added even more conditions to the statutory
license, Congress did not subject all
nonsubscription digital transmissions of sound
recordings to the new performance right.
Specifically, Congress left intact the DPRA's
provisions exempting "nonsubscription broadcast
transmission[s]." Apart from some
re-numbering, the relevant provisions in Section
114 &endash; set forth in paragraph 29 above
&endash; were left completely unchanged.
•••
• 31. Thus, in the DMCA, the nonsubscription,
simultaneous streaming activities of FCC-licensed
radio broadcasters &endash; which were
"nonsubscription broadcast transmission[s]"
within the meaning of amended Section 114(d)(1)(A)
&endash; remained exempt from the limited public
performance right in sound recordings set forth in
Section 106(6) of the Act. Because the
nonsubscription, simultaneous streaming of
over-the-air broadcasts by FCC-licensed radio
broadcasters is exempt from the digital performance
right of amended Section 106(6), such activity
requires neither a compulsory license under Section
114 nor a discretionary license by individual
copyright holders.
NY1:\962590\14\KMQM14!.DOC\64894.0003 11 III. The
Copyright Office's Rulemaking
•••
• 32. The Recording Industry Association of
America ("RIAA") is a trade association
representing the major record labels and numerous
additional record companies in a variety of record
industry matters. On March 1, 2000, the RIAA filed
with the Copyright Office a Petition for Rulemaking
(the "Petition") requesting the defendant to adopt
a rule stating that "a broadcaster's transmission
of its AM or FM radio station over the Internet is
not exempt from copyright liability under Section
114(d)(1)(A) of the Copyright Act" and that such
transmissions must either qualify for the
compulsory license or be authorized by the
individual copyright owners. In response to the
Petition, the Copyright Office, on March 16, 2000,
published in the Federal Register a Notice of
Proposed Rulemaking seeking comments on whether the
matter should be addressed in a rulemaking and, if
so, what the rule should provide.
•••
• 33. On December 11, 2000, the defendant
promulgated a final rule reflecting her decision
that AM/FM broadcast signals transmitted
simultaneously over a digital communications
network, such as the Internet, are not exempt from
the Office's regulatory authority (see 65 Fed. Reg.
77292) (the "Rule"). Specifically, the defendant
amended 37 C.F.R. § 201.35(b)(2) ("Initial
Notice of Digital Transmission of Sound Recordings
under Statutory License"), which requires any
"Service" to submit a notice to copyright owners of
the Service's intended use of the owners' sound
recordings pursuant to the statutory license of
Section 114(f) ("Licenses for Certain Nonexempt
Transmissions"). The defendant changed the
definition of "Service" under 37 C.F.R. §
201.35(b)(2) to include, without limitation, "any
entity that transmits an AM/FM broadcast signal
over a digital communications network such as the
Internet, regardless Page 12
NY1:\962590\14\KMQM14!.DOC\64894.0003 12 of whether
the transmission is made by the broadcaster that
originates the AM/FM signal or by a third party,
provided that such transmission meets the
applicable requirements of the statutory license
set forth in 17 U.S.C. 114(d)(2)."
•••
• 34. The Rule is flatly inconsistent with
Section 114(d)(1)(A), by which Congress exempted
from copyright liability FCC-licensed radio
broadcasters' transmission of radio station
broadcasts on a nonsubscription basis over the
Internet. The Rule cannot be reconciled with
Congress's legislative scheme to exempt from
liability nonsubscription broadcast transmissions
posing no threat to the sale of sound recordings,
and its intent to leave unaltered the mutually
beneficial relationship between the radio and
record industries.
•••
• 35. In the course of her rulemaking
decision, the defendant also asserted that radio
broadcasters who stream their over-the-air
broadcast programming via the Internet would no
longer be eligible, under Section 112(a) of the
Copyright Act, to make a single ephemeral recording
in aid of the transmission without infringing the
sound recording copyright. Defendant's reading of
Section 112(a) is plainly inconsistent with the
language of the provision and with the legislative
history, which makes it clear that both
"webcasters" licensed under Section 114(f) and
radio broadcasters streaming their over-the-air
broadcasts via the Internet on a nonsubscription
basis are eligible for the single ephemeral copy
exemption provided in Section 112(a).
•••
• 36. The defendant's issuance of the Rule was
and is in excess of statutory authority, arbitrary,
capricious, an abuse of discretion, and otherwise
not in accordance with law. Page13
NY1:\962590\14\KMQM14!.DOC\64894.0003 13 FIRST
CLAIM (Declaratory Relief With Respect To Sections
112 And 114 Of The Copyright Act)
•FIRST
CLAIM
••
• 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
•••
• 14th Floor
•••
• 1835 Market Street Philadelphia,
Pennsylvania 19103
•••
• (215) 665-8700
•••
• R. Bruce Rich Mark A. Jacoby Caroline R.
Clark WEIL, GOTSHAL & MANGES LLP
•••
• 767 Fifth Avenue New York, New York
10153
•••
• (212) 310-8000 Page13
-----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
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Publisher/Editor
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