House Judiciary Committee ranking member John Conyers, D-Mich., House IP Subcommittee Vice Chairman Doug Collins, R-Ga., and 16 other House lawmakers jointly urged DOJ Wednesday to drop 100 percent licensing language from its decision on its review of the American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees (see 1608040066). U.S. District Judge Louis Stanton, the BMI rate court judge, struck down the 100 percent licensing language in New York this month as it related to BMI's consent decree. That ruling has likely set the stage for additional legal challenges (see 1609190062). Given Stanton’s ruling, “DOJ can no longer maintain that the language of the ASCAP and BMI consent decrees clearly prohibits fractional licensing,” Collins, Conyers and the other lawmakers said in a letter to Attorney General Loretta Lynch. “DOJ should take prompt action to limit the confusion and chaos the closing statement creates in the market, and restore certainty to the efficient licensing by ASCAP and BMI of public performing rights.” The other House members who signed the letter were: House IP ranking member Jerrold Nadler, D-N.Y., and Reps. Karen Bass, D-Calif.; Marsha Blackburn, R-Tenn.; Tony Cardenas, D-Calif.; Judy Chu, D-Calif.; David Cicilline, D-R.I.; Steve Cohen, D-Tenn.; Jim Cooper, D-Tenn.; Kevin Cramer, R-N.D.; Joe Crowley, D-N.Y.; Trent Franks, R-Ariz.; Hakeem Jeffries, D-N.Y.; Hank Johnson, D-Ga.; Ted Lieu, D-Calif.; Adam Schiff, D-Calif.; and Louise Slaughter, D-N.Y. DOJ didn't comment.
U.S. District Judge William Alsup ruled against Oracle Tuesday in San Francisco, denying the company’s request for a new trial in its software copyright infringement lawsuit against Google. A jury found in favor of Google in May in a second trial of Oracle’s lawsuit, saying Google’s use of the coding and names contained in Oracle’s Java application programming interface (API) technology in its Android mobile operating system qualifies under the fair use doctrine (see 1605260067). Oracle claimed a new trial is warranted because Google concealed its 2015 ARC++ project to provide Chrome operating system users with Play Android Apps “without developer action.” Alsup disagreed with Oracle, saying Google produced multiple documents on the ARC++ project before the second trial. “Oracle’s failure to review the ARC++ documents is its own fault,” Alsup ruled (in Pacer). The ARC++ documents might not have affected the May jury verdict, Alsup said. “It may well be true that the use of the copyrighted APIs in ARC++ (or any other later use) will not qualify as a fair use, but that will not and does not mean that Google’s argument on transformative use as to the original uses on trial (smartphones and tablets) was improper,” he ruled. “That Oracle failed to detect the ARC++ documents in its possession had no consequence within the defined scope of our trial.” Oracle and Google didn’t comment.
The Copyright Office sought additional comment Tuesday on its study of Digital Millennium Copyright Act Section 1201 provisions on circumvention of technological protection measures (TPMs). The CO's study explores whether to adjust the office's triennial review process for granting exemptions to the circumvention ban (see 1512280030). Stakeholders partially focused in initial comments on the inquiry in the study on allowing for presumptive renewal of existing Section 1201 exemptions (see 1603030090). The CO said in the Federal Register it wants input on possible legislative recommendations on Section 1201 not directly related to the office's triennial exemptions review process. The office said it “continues to thoroughly evaluate” comments on the triennial review process but the new round of comments “does not specifically address those issues.” Issues up for comment include proposals for new permanent Section 1201 exemptions for mobile device unlocking, assistive technologies for individuals who are blind or vision impaired, some categories of software and “obsolete” technologies. The CO said it wants more input on how the proposed exclusions would affect existing U.S. treaties and trade agreements. The CO said it wants more feedback on possible amendments to existing permanent exemptions for security testing, encryption research and reverse engineering that would address concerns that those exemptions don't adequately cover good-faith research into security flaws and vulnerabilities. The CO said it also wants comment on how the section's anti-trafficking provisions affect third parties' ability to assist in exempted TPM circumventions. Comments are due Oct. 27, replies Nov. 16.
Eighty-one IP-intensive industries contributed more than 38 percent of the U.S. gross domestic product in 2014 and supported about 30 percent of all jobs, the Department of Commerce said Monday in a report. The joint Patent and Trademark Office-Economics and Statistics Administration report said IP-intensive industries contribute more than $6 trillion to the U.S. GDP and support at least 45 million U.S. jobs. The report identified IP-intensive industries as those that use copyright, patent and trademark protections most extensively. IP-intensive industries’ proportional contribution to U.S. GDP increased from statistics in a 2012 Commerce report (see report in the April 12, 2012, issue), but those industries’ proportional contribution to overall U.S. jobs numbers dropped slightly, Commerce said.
Broadband iTV, Hawaiian Telecom, Oceanic Time Warner Cable and Time Warner Cable are arguing over whether the U.S. Court of Appeals for the Federal Circuit's ruling (in Pacer) earlier this month on McRo v. Bandai Namco Games America is applicable to BBiTV's appeal (see 1604070068) of a U.S. District Court's 2015 ruling on its patent violation litigation. The TWC appellees in a letter (in Pacer) Friday in the Federal Circuit said McRo has no impact on this case and BBiTV's letter "seems to be a pretext" for arguing about the patent containing a technological solution for transferring control of electronic program guide (EPG) from cable operators to content providers, but that argument was never presented in District Court or in BBiTV's briefing. There's nothing in the claims about EPG control transfer, and the patent claims automation only for a process done by hand, TWC said. In its citation of supplemental authority letter (in Pacer) earlier this month, BBiTV said the patent claim isn't centered merely on automation but also provides an inventive process for updating the EPG. The McRo patent fight had to do with automating a 3-D animation method. Charter Communications owns TWC.
The Patent and Trademark Office's Patent Trial and Appeal Board was correct when it declared invalid an Intertainer patent for creating and distributing videos with clickable links, said the U.S Court of Appeals for the Federal Circuit in an opinion (in Pacer) Friday affirming PTAB's 2015 decision. Hulu had challenged the patent. Intertainer challenged PTAB's construction of various claim terms, but the Federal Circuit decision by Judges Raymond Chen and Kara Stoll and written by Sharon Prost dismissed those arguments. Intertainer didn't comment Monday.
Despite claims of proprietary formatting for imported DVD sets, a classification protest lacked necessary information, Customs and Border Protection responded to an application for further review dated in June and released this month. The DVD sets, imported by Vintage, included digital catalogs, brochures, and educational, documentary and marketing videos, CBP said. Vintage protested CBP's classification of the DVDs under one subheading and said the media is better classified under another due to proprietary formatting. The classification hinges on whether DVDs include "proprietary formatting," previously defined by CBP as "encrypted in such a way that it can only read data if the devices with which the media are used contain a decryption algorithm that is not publicly available." While Vintage said "the subject DVD sets contain data that is encrypted in such a manner that they can only be played by a machine specifically encoded to read the data properly," proprietary formatting is not "necessarily tied" to the copyrightable content of the merchandise, CBP said. The associated duty rate is 2.7 percent.
Flo & Eddie repeated their belief Florida law grants them a “common law” performance royalties right for songs recorded before 1972 because of a 1943 state Supreme Court decision and changes to state law enacted in 1941. Flo & Eddie, who own The Turtles' “Happy Together” and the rest of the band's music, argued in a brief to the Florida Supreme Court that a common law pre-1972 performance right exists in the state, as part of its lawsuit against SiriusXM. The court is reviewing SiriusXM's appeal of a 2015 U.S. District Court ruling in Miami that found a performance right exists in state law after the 11th Circuit Court of Appeals delayed a ruling in the case in June (see 1606290085). Flo & Eddie said it “did not forfeit its common law copyright by selling records.” Claims “for unfair competition, conversion, and civil theft of a sound recording, that are grounded on constitutionally protected property interests under Florida's very broad definition of property as 'anything of value,' exist independently from Florida's common law copyright to perform and reproduce a sound recording,” Flo & Eddie said. “Finally, under Florida law, by creating buffer copies of Flo & Eddie's sound recordings, Sirius XM has violated Flo & Eddie's copyright in the reproduction of its sound recording, irrespective of the duration of the copy.” Flo & Eddie was expected to argue in a brief to the New York Court of Appeals that a similar common-law pre-1972 performance right exists in that state as part of the state court's review of SiriusXM's appeal of a Flo & Eddie lawsuit to the 2nd Circuit Court of Appeals (see 1608050059). A copy of Flo & Eddie's brief to the New York Court of Appeals wasn't immediately available.
Public Knowledge urged DOJ to appeal a U.S. District Court decision in New York that struck down a portion of the department's decision on the American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees that dealt with 100 percent licensing. Judge Louis Stanton said Friday that Justice's Antitrust Division erred in its concluding statement saying the department continues to believes the existing ASCAP and BMI consent decrees mandate 100 percent licensing (see 1609190062). “The plain language of the consent decree, BMI's statements to the DOJ, BMI's marketing language about its licenses, and appellate precedent all support the DOJ's interpretation," said PK Policy Counsel Raza Panjwani in a written statement Monday. "Fractional licensing threatens to deprive the public of access to music by undermining a licensing marketplace that generates over a billion dollars in revenue annually for BMI alone, and which hundreds of thousands of business and outlets rely on to use and play music. This decision introduces uncertainty for users, opens the door to anticompetitive behavior, and should be appealed and reversed."
The Copyright Office issued a rulemaking notice Thursday that would allow an author, claimant to a copyright or representative to ask the CO to remove “extraneous and unnecessary” personally identifiable information from online versions of their copyright's application. PII that would be eligible for removal includes driver's license numbers, Social Security numbers, banking information and credit card information, the CO said in the Federal Register. The CO would retain the extraneous PII in offline and hard-copy versions. The new rule would codify an existing CO practice of deleting extraneous PII on request, the office said. The CO hasn't charged a fee for removing extraneous PII, but would begin to impose a $130 fee for such requests under the proposed rule. Requests for reconsideration of previously denied PII removal requests will cost $60, the CO said. The NPRM wouldn't permit removal of an author's or claimant's name because the CO is required to preserve non-extraneous information as a matter of public record, the office said. Anonymous and pseudonymous works are covered by copyright for 95 years after the work's original publication or 120 years after the work's year of creation. Works published under the author's real name are covered under copyright until 70 years after the author's death. Extraneous PII began appearing more frequently online by 2007 as third parties began “harvesting” information collected via the CO's online registration system and then posting that information on “alternative” websites, the CO said. Comments are due Oct. 17.