Do you allow the posting of content created by third parties on your website (e.g. videos, audio files, or even written comments)?  Do you run any on-line service where you collect information provided by third parties (whether that be a dating service, auction site or other classified service)?  If you do, you probably know that you are safe from copyright claims for infringing content that is posted by those who are not your employees or agents if you follow certain steps.  We have written about these steps to give you the "safe harbor" from copyright liability for "user-generated content" before.  The steps include requirements that you not encourage or profit from the infringing content, that you have terms of use for your service that forbid users from posting infringing content, and that you take down infringing content when you receive notice from copyright holders that it has been uploaded to your site or service by a third party.  To take advantage of this safe harbor from liability, services are required to register with the Copyright Office the name of someone in their company who can be served with "take-down notices" from copyright owners.  The process of registration is now proposed to be changed in a Notice of Proposed Rulemaking just issued by the Copyright Office.  Comments on this notice can be filed through November 28. Replies are due by December 27.

The safe harbor was created by the Digital Millennium Copyright Act, adopted in 1998.  Since that time, the registration of agents to receive take-down notices has been governed by interim rules.  Services register by sending a paper form and a filing fee to the Copyright Office, and that information is manually entered by the Copyright Office into a list that is available on the Copyright Office website.  From experience, the time from the filing of such a registration to its appearance on the Copyright Office's website can take several weeks or more.  The Copyright Office, in its Notice, states that it has done some informal checks on the information in its database of registered agents, and found that the list contains duplicate registrations, registrations for companies or sites that are no longer in operation (services are supposed to tell the Office when they stop their operations), and many outdated addresses (services are supposed to update their agents as employees change, but apparently they sometimes forget).  The NPRM proposes to move to an electronic registration system, which will automatically request a verification of the registered information on a regular basis.  In making this proposal, the Copyright Office asks for public comment on a number of issues.

The process proposed by the Copyright Office, and the issues that it feels that it needs to address before implementing the system, are many.  They include the following:

• Should the system be organized based on the name of the Service, or based on the URLs of the websites registered?
  • If registered by website, are "apps" developed for mobile devices all associated with a readily identifiable URL that a copyright holder will know if it wants to file a take-down notice, or should apps be registered differently?
  • If registered by Service, should subsidiaries and alternate trade names be registered on one filing, or should each have to register independently?
• Should a service be able to register an agent who is not an employee (e.g. a law firm or other service)?  The Copyright Office expresses reluctance, as such agents may not be diligent in processing take-down notices.
• Must an individual name be provided, or is an office or title at a Service sufficient?
• Should email addresses of the services (as well as those of the agents) be provided?  Should email addresses be made public in the Copyright Office's database?
• How should the Copyright Office deal with situations where there are duplicate entries, such as when a seller of a URL does not notify the Copyright Office of its discontinuance of use, and the Buyer registers an agent for the same URL?
• How can the Copyright Office guard against fraudulent registrations?
• What information should be provided in the registration?  (Currently legal name, address, alternate names, phone number and email address of the agent are required)
• Should the Copyright Office maintain periodic snapshots of its database ( what they call "versioning") so that parties can determine whether a proper agent was designated at various times in the past?
• The Copyright Office suggests that Services may need to periodically validate the information that they have on file.  They ask how often such validation should be required?

An automated system, where information is easily retrievable, and which automatically reminds services to update their information, seems like a real benefit both to copyright holders (who will be able to more easily access the proper person for take-down notices) and service providers (who will be reminded to keep their information current).  Obviously, there are many questions to be answered before the new system can be implemented.  However, with so many businesses now allowing some form of user-generated content, this is an important process with broad impact.  So review the Copyright Office's NPRM, and file comments on issues that are raised by the NPRM.  The new system will eventually require new registrations from all services, but expect that it will be some time before the Office resolves the issues raised in this proceeding, and develops the software system necessary to implement that proposals that it has made in the NPRM.  But the process is underway. 

Also, remember that there is also a safe harbor from most other legal liability for user generated content (including defamation) under provisions of the Communications Decency Act.  We have written about that issue before (see, for instance, this article).  Thus, if you follow the rules, service can allow users to post information to their sites without fear of legal liability. 

The dates for comments on the FCC proposed rules for the captioning of Internet Video have been set.  Comments are due on October 18 with replies due on October 28.  An associated Federal Register publication also notes that comments can be filed with the Office of Management and Budget about the compliance of the information collection requirements contained in the proposed rules with the Paperwork Reduction Act. OMB comments can be submitted through November 28.  As we wrote last week, this proceeding is of importance to television stations and cable operators, as the rules will initially apply to video that has already been captioned to meet some other FCC rule, and is later repurposed for the Internet.  It is also important to all operators of websites that distribute such video programming.  A more detailed summary of the proposals in this proceeding is available in our Davis Wright Tremaine advisory on the NPRM.  The full text of the FCC proposals is available here.

This proceeding is on an extremely fast track, as Congress has charged the FCC with adopting rules by January to implement the statutory obligations set out in the Twenty-First Century Communications and Video Accessibility Act of 2010.  Already, groups representing the hearing impaired as well as certain Internet video aggregators have visited the Commission to lobby for their particular positions on the proposals.  Those representing the hearing impaired community have been very active in this proceeding, as well as in connection with the filing of objections to television stations who do not meet their obligations to provide video accessibility through captions or other written information during over-the-air programming providing emergency information (see our note here on an FCC reminder on that subject).  TV stations and other video providers need to be similarly active in explaining to the FCC what can and cannot be done technologically in a cost-effective manner to meet the needs of these citizens.  The just announced comment deadline provides video producers with that opportunity. 

Putting TV or cable programming onto the Internet may soon not be as easy as it once was, as the FCC has just issued its Notice of Proposed Rulemaking on the captioning requirements for online video.  The proposals advanced by the Commission are summarized in our firm's Advisory on the subject, here.  These rules are proposed pursuant to a Congressional mandate that requires captioning of television programming that has already been captioned pursuant to an FCC rule, when that programming is later shown on the Internet.  This obligation was adopted as part of the 21st Century Communications and Video Accessibility Act ("CVAA") which, among other things, looks to make Internet video programming accessible to the hearing impaired.  Programming that has run on TV stations or cable systems, and is later delivered through the Internet, will apparently be under the captioning obligations, subject to any exceptions adopted by the FCC in this proceeding.  The legislation requires that rules be adopted in January, and that implemention begin 6 months thereafter. Thus, there is a very quick comment period - with comments due 20 days after the NPRM is published in the Federal Register, and replies 10 days later.

The proceeding asks about who should be covered by the rules, and what exemptions to the requirements should be adopted.  For instance, it asks whether the exemptions that apply to TV captioning (including exemptions for small channels with less than $3 million in annual revenue) should be carried over to the Internet.  The report also asks what devices should be covered by the regulations that will be adopted.  Will these rules apply to smartphone and tablets, as well as to standard computer screens?  It also asks a number of technical questions about how the captioning should be implemented, though the FCC does not propose any single captioning standard.  These are all important issues for a requirement that may soon become a reality for traditional video providers looking to put their content online.  Thus, review our advisory and the NPRM itself, and comment by the deadline that will soon be set.  Obviously, where the FCC comes out on these questions may significantly impact the development  of online video, and could set a precedent for a further expansion of the captioning obligations in the future.  Watch this proceeding as it develops in coming months. 

As our colleague Brian Hurh wrote today on our sister blog, www.broadbandlawadvisor.com, the Video Programming Accessibility Advisory Committee has released its Report to the FCC on the closed captioning of IP-video programming as required by the 21st Century Communications and Video Accessibility Act passed last October.  A copy of the report released today is available here.  As we explained earlier here, the Accessibility Act directed the Commission to enact rules that would require that once a television program is published or exhibited on television with closed captions, any subsequent distribution of that programming on the Internet must include closed captions.

The Accessibility Act requires that the FCC revise its closed captioning rules within 6 months of the Committee's report, thus, new FCC closed captioning rules must be in place no later than January 13, 2012.  (The report is dated July 13, 2011, though it appears to have been released July 11.)  The report proposes the following compliance schedule based on the date the FCC's revised rules are published in the Federal Register:

• Within 6 months: programming that has been prerecorded and unedited for Internet distribution;
• Within 12 months: live and near-live programming
• Within 18 months: programming that has been prerecorded and substantially edited for Internet distribution.

In addition, the report sets forth the Committee's recommendations for performance objectives, technical requirements, and technical capabilities and procedures related to closed captioning on the Internet.   The report also contains a discussion on new technological developments such as emerging protocols and other innovations that may affect the delivery of Internet closed captioning in the future.

While today's Report makes certain recommendations, it is up to the Commission to now act expeditiously in order to commence a rule making proceeding, solicit comments, and actually promulgate new rules regarding captioning of video over IP.  The Advisory Committee's report is an important (and necessary) step towards captioning rules for certain types of Internet video, and we will continue to follow the Commission's actions in this area.

As broadcasters pursue their digital future, new legal issues arise to greet their entry into the on-line world and to add to the challenges posed by the new media. Over the last few years, we’ve have written extensively about music rights and their impact on webcasters, broadcasters, and other digital media companies. We’ve talked about patent law issues that have faced digital media companies. And we’ve discussed other content issues, like FTC online sponsorship disclosure requirements, that have arisen from time to time. But the one issue that now seems poised to dominate the legal conversation in coming months (or years) is that of privacy. This past week, we saw Pandora announce that it has received a subpoena from a Federal grand jury in connection with an investigation into the use of information collected from various mobile apps, and whether users of these apps were aware of the use of their private information. Other companies apparently received this same request.  This investigation is but the tip of the iceberg on privacy issues facing media companies operating in the digital world - challenges coming from the courts and from legislative and administrative initiatives in Washington.

Everyone knows that one of the great benefits of the Internet and the many services available on-line and through mobile apps, is the ability to personalize so as to provide a unique listening or viewing experience for every user. Instead of being limited to the linear programming that a broadcast service provides to all users at the same time, users can tailor their digital media experience to give them what they want and, as wireless broadband penetration increases through smart phones and other devices, almost whenever they want it. In some cases, the costs of providing an individualized service, because of bandwidth needs, royalties and license fees and for other reasons, the cost per each additional listener is often higher than that incurred by the traditional media. And online users thus far have been unwilling to tolerate the commercial advertising load that a traditional media experience might provide. To meet these higher marginal costs, and the lower spot loads, many digital media companies have looked to personalization of advertising to allow for higher advertising rates on the theory that advertising will be more efficient if you can guarantee that it will be targeted to reach its intended audience – geographical, demographic or based on expressed interests. As digital media companies have sought to refine the targeting available through their advertising, privacy issues have arisen.

Many people fear that the information collected by digital media companies will invade their privacy in some way or another. While the current uses of this information is to provide advertisers with the ability to target their advertising at individuals more likely to act on that advertising, and otherwise serve the interests of the user, some have speculated that the information, based on personally surrendered information or from information based on an Internet browsing history, could somehow be compiled and made available for some nefarious purposes (identity theft, personal or professional embarrassment, etc). Others simply don't like the idea that information about them is being gathered for someone else's financial gain (even though that gain is being used to pay for the service that the user is enjoying).  Based on these concerns, there have been several reports issued by government agencies, including ones by the Federal Trade Commission and the Department of Commerce (summarized on our firm’s Broadband Law Advisor Blog here and here), suggesting more disclosure about information collection and that people be able to opt out of the collection of personally identifiable information. Various legislative efforts to address these issues have arisen, including a Bill recently introduced in the House of Representatives by Congressman Bobby Rush, which would place limits and more open disclosure requirements on the collection and use of personally identifiable information used for behavioral advertising and other purposes. Much discussion has already centered on these questions and no doubt more will be forthcoming if Congress can distract itself from budget issues in the coming months.

At the same time, private attorneys and private parties have entered the fray, as there are already various data security and privacy statutes on the books under both Federal and state laws, filing lawsuits in various jurisdictions challenging companies, including many media companies, of misusing personally identifiable information that they have collected. Often, these suits are based on claims that the information was used in a manner not clearly disclosed in a company’s privacy policy. Thus, media companies who collect information need to be very sure that any information that is collected is used in a manner totally consistent with their policies and with any laws limiting the use of private information.

The FTC has also been involved in policing some of these very issues, and we’ll soon write about some of the recent consent decrees entered into between media companies and the FTC. As digital media becomes a more and more important portion of the revenues of every media company, and as the ability to gather personal information about individuals who use a site increases, the potential for conflicts between commercial practices and the privacy laws and policies will no doubt increase. So watch this space, and our firm’s Privacy and Security Blog, for more information about these topics, and be prepared. 

Broadcasters are inevitably moving toward a digital future - exploiting new Internet and mobile platforms to supplement their traditional over-the-air operations.  Last week, I conducted two sessions in Salt Lake City for the Utah Broadcasters Association, one on the legal issues to be considered in connection with broadcasters' use of the digital media, and a second updating broadcasters on all the legal and regulatory issues that they face from Washington with their over-the-air operations.  Slides from the digital media presentation, Broadcasters Online: Legal Issues in the Cyber Jungle, are available here, and those from the broadcast update, the Top Ten Washington Issues that Should Keep Broadcasters Awake at Night, are available here.

To show how quickly things move in Washington, since the seminar, there have been two new developments that relate to topics discussed at the seminar.  On the day of the seminar, the Commission's Enforcement Bureau came out with a policy statement about a certification that broadcasters need to include in all of their advertising contracts certifying that the advertising was not sold with a discriminatory purpose - as there will be a specific question about the certification in all license renewal applications.  We have summarized the requirements for the clause to be included in the advertising contract here. 

At the seminar, we also discussed sponsorship identification, and how stations must acknowledge the sponsor of anything of value that they receive in exchange for any on-air statement.  On Friday, the FCC fined two television stations for receiving video news releases that were used on the air.  These cases made clear that the broadcaster must acknowledge who paid for the production of a video news release that overtly promotes a commercial product - even if the station received nothing from the sponsor except for the video news release itself.  A summary of those decisions can be found here.

Other material of relevance to the broadcasters who attended the seminar include the following:

• A guide to the contents of a station's public inspection file can be found here.
• A guide to preparing for the upcoming license renewal can be found here.
• An article on the required on-air disclosures about the material rules of a broadcaster's contest can be found here
• Slides from last year's Utah seminar on the FCC's EEO rules can be found here, and a guide to EEO compliance can be found here.
• Information about the issues being considered in the FCC's proceeding on potentially repurposing some of the television spectrum can be found here.  
• The FCC's call for stations to register by April 5 their translators, LPTVs and the paths to cable head-ends and satellite receive locations to protect them from white spaces devices is summarized in our article here.

Other issues of importance to broadcasters are routinely summarized the blog. 

As our colleague Brian Hurh wrote recently on our sister blog, the www.broadbandlawadvisor.com, a federal district court last week granted a preliminary injunction prohibiting the mere retransmission of broadcast television programs over the Internet, without more.  The order is not only important for its confirmation of a 2008 Copyright Office decision rejecting Internet retransmission of video programming under Section 111 of the Copyright Act, it also reaffirms the “quid pro quo” of compulsory licensing – that one cannot merely retransmit programs over the Internet (or any other medium, for that matter) without acquiescing to federal regulation.  See WPIX, Inc. et al v. ivi, Inc., Case No. 1:10-cv-07415-NRB (S.D.N.Y., Feb. 22, 2011).

The order stems from a preliminary injunction sought by national broadcasting networks and local stations, Major League Baseball and several motion picture studios against a single defendant, ivi, Inc.  ivi’s business consisted of capturing over-the-air broadcast programming in several major markets and retransmitting it over the Internet to ivi subscribers across the country.  

The central issue was whether ivi could lawfully retransmit such programming over the Internet pursuant to a “compulsory license” under Section 111 of the of the Copyright Act (17 U.S.C. § 111).  In a brief but informative history of Section 111, the Court explained that the compulsory license was created to allow the then-nascent cable industry to retransmit over-the-air programming to subscribers in exchange for a statutory license fee paid to the Copyright Office.  That bargain, however, also required cable operators to willingly submit to the FCC’s jurisdiction.  According to the record, ivi refused to adhere to this bargain, instead arguing that its Internet video service was outside the purview of the FCC because it was transmitted over the Internet.  The Court flatly rejected this argument, holding that ivi not only was not a cable system eligible for a license, it could not both benefit from a compulsory license while at the same time avoid obligations under federal law.

In essence, the Court’s decision reinforces the notion that there is, and has always been, a balance between the development of new video technologies and respecting the copyrights of content owners.  Cable operators accomplished this through the Section 111 compulsory license; the Internet has yet to discover a balance of its own. 

The Commission today released an Order conditionally designating 9 companies to be database administrators for white spaces devices.  As we wrote in our article describing the FCC's recent decision on reconsideration of its White Spaces order, these administrators will be responsible for maintaining a database of all users of the TV spectrum who must be protected from interference from white spaces devices.  Protected entities include TV stations, LPTV stations and TV translators, cable and satellite receive locations, certain wireless microphone users, and the paths between TV stations and translators.  Each database must maintain all of this information, so that white spaces devices can determine what channels must be protected in areas in which they are operating. 

The conditional nature of the designation reflects the fact that these administrators had requested designation in late 2009, before the recent Order on Reconsideration which adopted the new requirements that all white spaces devices must communicate with these administrators instead of relying on any sort of spectrum sensing.  Thus, the FCC is requiring the proposed administrators to update their filings to reflect that they can meet the new requirements for the maintaining the database.  One of these new requirements is one of security - so that it can be ensured that the users will have an accurate data base from which to operate, without fear of tampering or other abuses.  The FCC will also require that each administrator attend an education session conducted by the FCC, and to go through a rigorous testing period - with tests conducted by the FCC to make sure that the administrator's service will actually provide the necessary information to protect incumbent TV spectrum users from interference from white spaces devices.

The administrators selected by the FCC are: Comsearch; Frequency Finder Inc.; Google; KB Enterprises LLC and LS Telcom; Key Bridge Global LLC: Neustar Inc.; Spectrum Bridge Inc.; Telcordia Technologies; and WSdb LLC.  The FCC notes that there may be problems posed for so many administrators to be operating, they hope that competition drives better operations, and also that the experience that these companies get from operating this database can be transferred to future spectrum-sharing arrangements that may be ordered by the FCC.

Television operators should watch this proceeding, and be sure that the information about their operations is correct in each of the databases developed by these companies.  The multiplicity of operators may make this task somewhat more cumbersome for TV stations, but it is crucially important given the risks of interference that may arise if all information is not complete and accurate. 

The NAB Radio Show in Washington two weeks ago was a upbeat reflection of the present state of the broadcast industry.  But sandwiched around that conference, in the last three weeks, I have spoken at three digital media conferences - and as someone who has grown up on over-the-air radio, and based a career on representing radio stations, the discussions at these conferences raised many questions about the future of the radio industry. At the Radio and Internet Newsletter (RAIN) Summit East in DC, prior to the NAB Radio Show, I gave a summary of the royalty issues facing Internet Radio operators. At the Future of Music Policy Summit in DC the next week, I spoke on a panel on the Future of Radio. And at the Digital Music Forum West in Los Angeles last week, I moderated a panel on music licensing issue for digital media companies. At each of these conferences, the focus was on the digital media, not on over-the-air broadcasting, and many times the question was raised as to whether traditional radio was still relevant in the digital age. I’m not sure how many times I was asked, when I told someone that I am a lawyer who represents radio stations, what I plan to do next when my clients are extinct? Even in media-related industries, many seem to regard radio broadcasters as old-school – a throw back to some other entertainment era. Yet, what surprised me was how these same people who questioned the relevance of radio were all able to talk about what songs were or were not being played on the local rock station, or about the crazy thing some local DJ said that morning and the contests running on radio stations in their market, or about the story on NPR that kept them in their car seats when they were sitting in their driveway at home the night before.

At each of these conferences, in listening to the discussions of the issues facing all the new media (like how to make money), the dark view of radio seemed overblown.  Radio still seems to be a vital medium, especially if it can emphasize the advantages that it has. Harnessing the power of radio with digital media creates platforms that neither has on its own. In many ways radio, of all the traditional media, is best able to use its place in the media landscape to expand in the digital world. Radio has always excelled in reaching niche audiences, in much the same way that the Internet now does. By playing to its strengths, whether that be music, news, talk or sports, or some combination thereof, radio can expand its connection and provide broader and deeper services to its listeners, and serve its audiences like never before.  And all the digital media companies seem to recognize this potential, but seem to be discounting radio's ability to capitalize on its advantages. 

As with any new line of business, there will always be bumps. Unfortunately, my legal brethren are often the ones that create those bumps, occasionally inflating those bumps into small mountains. Legal and regulatory obstacles have scared some broadcasters away from aggressive on-line efforts. I’ve spent much time in the last few years helping clients navigate their entry into the digital world – whether it be in connection with music royalties, concerns with liability from user-generated content or social media pages, the privacy rights of those who sign up for loyal listener clubs, or copyright issues in connection with repurposed content. There are not always easy answers about how a digital broadcaster can do what it wants to do.  And Congress and the FCC will no doubt come up with new legal challenges to broadcasters as they develop their on-line presence – witness our recent posts about the Congressional mandate to close caption broadcast video programming repurposed to the Internet and the Commerce Department inquiry into the protections of copyrighted content and its impact on digital media innovation. 

But, with time and the energy and imagination of all those involved in the radio industry, in one way or another these issues can be worked out. What broadcaster, after years of dealing with the FCC and its attitudinal fluctuations, can’t handle some new regulatory wrinkle? While, in the digital world, the wrinkles may come not come from the FCC but from one of the alphabet soup of other government agencies that Washington has to offer, it’s just another set of rules that the digital-age broadcaster has to help shape, and then adapt to once they are set. Having dealt with content regulation before, the broadcaster has a leg up in adjusting to regulation in the digital world. It’s just a matter of paying attention to the issues, reading the trade press, communicating with your attorney, and participating in the media organizations who always have given you guidance. Just make sure that they are providing the guidance that you need as you become more and more immersed in the on-line world.

And while some of the questions about regulation, royalties and legal issues facing digital media seem today to have no clear answers, remember how new much of this technology really is. Who carried a computer with them 15 years ago, much less a computer that connected to the Internet wirelessly, fits into your pocket and makes phone calls as well? 15 years ago, streaming music on the Internet was essentially a technical possibility only for the geeks. The oldest Internet radio companies that are still operating are at most a decade old. And some of the biggest players in Internet radio and video - like YouTube and Pandora - have been streaming for just 5 years. With much of the digital media so new, and developing and changing so fast, it is no wonder that the law has not caught up. I emphasized the fact that regulation has not caught up with the digital media developments in several recent presentations that I have done summarizing some of the digital media issues facing broadcasters as they travel on their digital safaris. See, for instance our posts here and here on some of these recent presentations. Yet, even with this legal uncertainty, many companies are venturing forward and exploiting the opportunities that the new media bring – staking out their place in the new media universe.

The rewards for radio broadcasters expanding their reach into the digital world may well be great – in terms of audience and advertising growth and potentially even in terms of regulation. It goes without saying that the Internet offers radio broadcasters the ability to connect visually with listeners (and to better serve their advertisers), and the social networking opportunities can enhance the sense of community that good radio stations have long sought to engender. Radio can leverage its brands to bring all sorts of new services to listeners, and use its connection with its audience to promote those services. And it may bring other benefits in terms of regulatory relief. The ability of so many digital media companies to reach listeners, viewers and local residents through the new media may well spell the doom of the “scarcity” rational that has underlied so much broadcast regulation in the past. We have just this week seen three former FCC Chairman say that, given the changes in the media industry, the broadcast multiple ownership rules are no longer relevant. In the past, the scarcity rationale was the basis for most broadcast regulation – the theory was that broadcasters needed to be regulated because they were so intrusive, and spectrum so scare, that only good actors should be allowed to use it. Thus, restrictions that would never have been allowed to be imposed on newspapers were tolerated by the Courts when they were applied to broadcasters. With the Internet available to give you all the content that you want, when you want it, the justification for this scarcity regulation is fast disappearing.

The digital media obviously poses challenges for radio, but also great opportunities. Radio needs to be there as it develops, to ride the wave, and exploit the new media. Radio can interact with its audiences as never before, and provide new services that were not possible a decade ago. I have radio clients who essentially run on-line newspapers, magazines, and even local television stations – without a printing press or a television transmitter. The opportunities are limitless – by unleashing radio’s creativity onto the digital media, radio will remain relevant in the digital age, and the industry will continue the good fortune that it has so long enjoyed. Digital media companies are going after radio’s audiences (see, for instance, this summary of the recent comments of Pandora founder Tim Westergrin about how that service will be taking on broadcaster’s drive time domination), so broadcasters must be ready to meet the challenge by competing on all platforms that are available in the digital media marketplace. Tomorrow is here today, and it is time to take advantage of its opportunities, and meet its challenges.

Dave Oxenford this week conducted a seminar on legal issues facing broadcasters in their digital media efforts.  The seminar was organized by the Michigan Association of Broadcasters, and originated before a group of broadcasters in Lansing, but was webcast live to broadcasters in ten other states.  Dave addressed a variety of legal issues for broadcasters in connection with their website operations and other digital media platforms.  These issues included a discussion of service marks and copyrights, employment matters, music on websites, the use of social media, privacy, and sponsorship disclosure.  An earlier version of Dave's presentation on the Legal Issues in the Cyber Jungle is available here (the updated slides used in the Lansing presentation will be posted here soon).    During the seminar, Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the content posted to their website by their audience, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder.  The Copyright Office instructions for registration can be found here.   

One of the most common issues that arise with radio station websites is the streaming of their programming.  In August, Dave gave a presentation to the Texas Association of Broadcasters providing  a step-by-step guide to streaming issues, with a summary of the royalty rates paid by different types of streaming companies.  That summary to Internet Radio issues is available here.  Additional information about use of music on the Internet can be found in Davis Wright Tremaine's Guide to The Basics of Music Licensing in a Digital Age.   Dave also presented this seminar at the Connecticut Broadcasters Association's Annual Convention in Hartford on October 14.

During the webinar, one of the issues that came up in the discussion of music use on the Internet was the provisions of Section 112 of the Copyright Act that allow broadcasters to make "ephemeral copies" of sound recordings to facilitate a broadcast or webcast transmission, but which require that any such copies be kept for no more than 6 months.  As discussed at the seminar, agreements entered into last year by the NAB and major record labels and A2IM, the association that represents that major independent labels, in connection with the NAB/SoundExchange settlement of the dispute over Internet radio royalties, contained provisions that agreed to waive that 6 month limit on the retention of ephemeral copies for broadcasters who signed the settlement agreement on webcasting royalties.  More details about the waiver of this aspect of the ephemeral royalty issue, and about the waivers of the performance complement which would otherwise restrict programming options of webcasters (including how many songs in a row by the same artist could be played) are contained in this post on our blog summarizing the waivers entered into in connection with the NAB/SoundExchange agreement.

The associations which co-sponsored the webinar were the state broadcast associations of the following states:  Illinois, Kansas, Pennsylvania, Missouri, Nebraska, Nevada, North Dakota, Oregon, Tennessee and Indiana. 

Last week, the Department of Commerce's Internet Policy Task Force asked for comments on the relationship between the protection of copyrighted content on the Internet and the effect of such protections on technology innovation and the expectations of consumers.  The purpose of the inquiry is to develop a report to be circulated among the various government departments that have power over the enforcement of copyrights and the development of rules and regulations that deal with copyrighted materials - to essentially develop government policy in this area.  While the request for comments dwell on the concerns about copyright infringement that are raised by many Internet applications, the proceeding will obviously be controversial among media companies.  Many of these companies are concerned about the unauthorized use of their content on various websites, while other media companies (or divisions of the same media companies who are concerned about the unauthorized use of content) are concerned about too tight restrictions on the use of copyrighted content and how that will impact various websites, especially those that feature user-generated content.

As we have written before, the Digital Millennium Copyright Act allows Internet companies to allow users to post material on their websites, without fear of liability, if they take certain precautions - including adopting terms of use warning users that they need to observe the intellectual property rights of others, not otherwise encouraging infringing uses, registering with the Copyright Office to provide a contact person at the website operator that a copyright owner can contact if they believe that their content is being used improperly, and taking steps to take down improper content if the website operator is notified of the infringing use.    This Commerce Department's notice asks if this "safe harbor" provision has served the public interest, or if adjustments to this regime should be made.  Obviously, many websites that have grown businesses based on user generated content (e.g. many of the social networking and video-sharing sites) and will be very concerned with a proposal to alter their safe harbor and require them to take on a greater burden of reviewing content for potential copyright violations, while many content owners, who have complained about the inability to monitor all of these sites, may be looking for these reforms.   Obviously, there will be conflicting views on these proposals.

Comments in this proceeding are due by November 19.  Very specific filing requirements are contained in the notice.  Companies interested in protecting their content, as well as those concerned with the impact on their businesses from a change in current policies, should file comments by that date.  While changes in some of the current policies require changes in the law that only Congress can make, this proceeding can impact the Administration's legislative agenda.  So express your opinions. 

Broadcasters have a host of other legal issues that they should consider in connection with their digital presence.  At last week's Maine Association of Broadcasters Annual Convention in Bangor, Dave Oxenford addressed these issues, including service marks and copyrights, employment matters, music on websites, the use of social media, privacy and sponsorship disclosure.  A copy of Dave's presentation on the Legal Issues in the Cyber Jungle will be posed here shortly.    Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the posts from their audience members, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder.  The Copyright Office instructions for registration can be found here.   

One of the most common issues that arise with radio station websites is the streaming of their programming.  In August, Dave gave a presentation to the Texas Association of Broadcasters providing  a step-by-step guide to streaming issues, with a summary of the royalty rates paid by different types of streaming companies.  That summary to Internet Radio issues is available here.  Additional information about use of music on the Internet can be found in Davis Wright Tremaine's Guide to The Basics of Music Licensing in a Digital Age. 

Dave will be presenting a version of the Cyber Jungle presentation to the Michigan Association of Broadcasters on October 12, a presentation that will be webcast to several other states.  Information and registration for that seminar is available here.

The FCC's long-awaited White Spaces decision, revisiting its authorization of the operation of unlicensed wireless devices in the television spectrum (see our summaries of the intial order here and here), has finally been released.  The FCC decision and associated comments of the Commissioners promise Super Wi-Fi, or Wi-Fi on Steroids, and a host of other wireless digital marvels, without significantly interfering with the incumbent users of the spectrum (principally TV stations and wireless microphone users).  In this order on reconsideration, the FCC addresses many issues raised by many parties to the proceeding - some suggesting that the FCC has not sufficiently protected the incumbent users, while others arguing that the limitations on wireless users are too onerous.  For broadcasters, some of the highlights of the decision include:

• No change in the interference protections given to TV broadcasters.  Some had suggested the use of various alternative propagation methods to be used instead of the standard FCC method of predicting the protected contours of television stations.  The FCC rejected these proposals, finding that alternatives would not be more accurate in predicting potential interference.  One minor correction including in the database that will be used by wireless devices to protect stations from interference will be included - information on a television station's antenna beam tilt.
• No change in the protection of LPTV station protected contours.  LPTV advocates had suggested that greater protection was required for LPTV stations that were still operating in an analog mode.  This was rejected by the Commission, given the impending digital transition for LPTV (see our summary of the LPTV digital transition, here)
• Greater protection was afforded to cable headends, TV translator receive sites, and the receive locations for Satellite television providers (like DISH and DIRECTV) and other Multichannel Video Providers (MVPDs), so that existing television reception, no matter how it is received will be protected.  The current rules provide that such sites within 80 km from the edge of a television station's protected contour can register in the database to be used by white spaces devices to determine where they can operate.  The Commission recognized that sites beyond that 80 km distance may also need protection.  Such sites can petition the FCC for waiver of the 80 km distance within 90 days of the effective date of this order, and the FCC will seek comment on whether or not to accord the site protection.  New sites need to register within 90 days of being put into service. 

Some of the other issues addressed by the Commission, including a big change in how these devices will operate to prevent interference, are summarized below.

Perhaps the biggest change was in the requirement that these devices use spectrum-sensing technology to avoid interfering with television stations and wireless microphone users.  The original proposals for these devices were premised on this technology, but this technology was also the most controversial, as broadcasters argued that the devices that had thus far been produced were not reliable in sensing the existence of a signal that was to be protected.  Instead of spectrum sensing technology (which the Commission speculates may be included in future generations of white space devices to allow them to avoid actual interference to their operations), the Commission has decided to rely on the database that it will create of existing users of the spectrum.  The white spaces devices will need to be able to determine where they are and what channels are listed in the database of protected channels in that area, so that the devices will use other channels.  Very specific rules for how often white spaces devices need to assess their location and to access the database were also adopted to make sure that these new interference standards are observed.  Security measures to assure that the communications between the devices and the database are not corrupted were also adopted. 

The Commission also rejected requests to increase the permissible power of these devices and the height from which fixed white spaces devices can operate, and for the operation on channels adjacent to television stations, so as to limit potential interference.  Similarly, requests for more protection for "direct pickup devices" (e.g. the connection between a cable box and a television set that uses a television channel to transmit information from one device to another) were rejected, as the Commission found that manufacturers of such devices could provide more shielding for their connections or otherwise engineer around the issues that might be presented by white space operations.  

On the wireless microphone issue, the FCC decided to set aside certain channels in each market to be dedicated to their use, to establish a specific set of frequencies in each location that can be entered into the database.  Provisions for temporary operations outside of those set-aside frequencies were also established so that accommodations could be made for increased use of such microphones when employed for some big event (e.g. a political convention or major sporting event). 

As is clear from the discussion above, the protection of all current users of these frequencies will rely on the establishment of an accurate and up-to-date database that can be accessed by all of the white spaces devices that may be developed.   The Commission reaffirmed rules that allow for the selection of multiple database operators, and required that their information as to FCC licensees, and other information required by FCC rules, be publicly available so that it can be reviewed for accuracy.  Issues as to fees to be charged to wireless operators by the database operators were left to the discretion of the operator.  Certain other technical rules were adopted.  Of course, before any of these operations can be implemented, the database operators must be selected and approved by the FCC's Office of Engineering and Technology  (see our post here on the FCC's RFP seeking applications for database managers).  The FCC delegated the Chief of that office to oversee the operation of these databases once they are put into use.

When will these devices be operational?  At this point, given the need to establish the databases, and to engineer devices to work with the databases that are established, it is safe to say that the operation will not occur overnight.  When the Commission first approved the concept of white spaces devices, many had predicted operations at points that have long come and gone .  As with everything else in the technology world, when it will happen, and the impact that the rule changes will have in the real world, will only be apparent at some point in the future.  We will all see how this new service develops, and its actual impact on the existing users of these channels but we won't see it tomorrow. 

FCC Commissioner Meredith Atwell Baker recently delivered a speech in Washington, DC, where she addressed calls for the government to take action to assist the traditional media deal with the economic issues brought about by the new media.  From time to time, there have been calls for the government to assist the traditional media, either through some sort of direct subsidies, or through regulatory changes that could assist in their news coverage to make these entities competitive in the new media world.  While the Commissioner's speech did not detail those efforts, calls have, for the most part, not suggested direct government subsidies to support traditional news media sources.  Instead, more indirect efforts have been suggested to insure that these media sources continue to serve their communities.  Calls have been made to change tax laws to allow newspapers to operate as nonprofit entities (while still soliciting advertising).  In a draft FTC option paper, there was a suggestion of taxing commercial media to provide more support to noncommercial public broadcasting entities.  Other proposals have been more direct - simply mandating more news and public affairs programming from broadcasters (with little or no discussion of the source of the revenues for such mandates).  In her speech, the Commissioner noted that some suggestions may be forthcoming from the FCC's own Future of Media report due at the end of the year (see our summary of the issues that they are exploring here), but she seemed to rule out these types of proposals, instead suggesting that the Commission could assist companies meet the new media challenge by loosening FCC restrictions on ownership.

The Commissioner suggested that no government action to bail out the media is necessary to preserve service to the public - citing the many examples of how that service is provided through new media sites that serve all sorts of communities and community groups - providing timely and detailed information on specific topics, often on a neighborhood level.  We have made that same point on these pages - the new media is already filling any void that may exist in local media coverage.  Some of these sites are produced by old media companies - as TV stations, newspapers and others develop microsites targeted to very local needs and interests.  Other sites are totally independent - developed by local interest groups or new media entrepreneurs.  So how can the Commission help these sites to develop?

The Commissioner suggested that a relaxation of the ownership rules, which is currently under consideration (see our post on the pending Notice of Inquiry on the multiple ownership rules), could help existing media companies compete in the new media world.  We've written before about the concern that the prohibition against the cross-ownership of broadcast stations and daily newspapers (except in the largest markets where waivers are available, see our post here) might well outlast the newspaper.  But there are other issues to be debated - whether to allow radio broadcasters to own more stations in their markets (to compete with Internet and satellite radio which can both provide hundreds of channels of programming to any market).  And whether to allow television consolidation in smaller markets where economic realities seem to be dictating that independent television stations may not be able to survive.  These efforts will, of course, be subject to debate, as many still react with an almost automatic suspicion of more media consolidation (see our post on the opposition to shared services agreements in the TV world).  These issues, too, should play out in more detail in the coming months, as the FCC releases its Notice of Proposed Rulemaking on reform of the multiple ownership rules, where it will set out in more detail potential changes in the ownership rules that it will seriously consider in its Quadrennial review of these rules.  Watch for more on this proceeding, probably late in the year. 

So you want to start streaming your radio station on the Internet?  Or maybe you want to start a whole new Internet radio station.  In a session at last week's Texas Association of Broadcasters Annual Convention in Austin, Dave Oxenford talked about the legal considerations starting an Internet radio station, while Chris Dusterhoff of Bryan Broadcasting in Bryan/College Station, Texas talked about some of the technical and business issues in doing so.  A copy of Dave's PowerPoint presentation from that session will be available here shortly.  The presentation addresses some of the issues that you need to consider, including the music royalties that will be required from most webcasting operations. 

In addition to the issues involved in streaming your signal on the Internet, broadcasters have a host of other legal issues that they should consider in connection with their digital presence.  Issues that arise with service marks and copyrights, with employment issues, social media, privacy and sponsorship disclosure were all addressed in Dave's presentation on the Legal Issues in the Cyber Jungle.  A copy of his PowerPoint presentation will be available here soon.  Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the posts from their audience members, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder.  The Copyright Office instructions for registration can be found here.   Additional information about use of music on the Internet can be found in Davis Wright Tremaine's Guide to The Basics of Music Licensing in a Digital Age.