The Copyright Royalty Board released the National Music Publishers Association-brokered partial settlement on 2018-2022 statutory mechanical royalty rates, saying in a notice in the Federal Register it's seeking comment on the settlement through Aug. 24. The settlement, agreed to by Universal Music Group and Warner Music Group, would maintain the existing mechanical rate for downloaded songs at 9.1 cents per downloaded copy for songs less than five minutes long and 1.75 cents-per-minute for songs more than five minutes long. The settlement also would maintain existing mechanical rate for ring tones at 24 cents per copy. Apple separately proposed maintaining the existing mechanical rates for downloaded songs but proposed changing the rate for interactive streams to 9.1 cents per 100 plays (see 1607180067). The CRB judges are seeking comment on whether to adopt the proposed mechanical rates and whether to apply them to all copyright owners and licensees.

NAB, the Radio Music License Committee and Television Music License Committee in a filing released Friday jointly backed DOJ Antitrust Division’s preliminary decision on its review of the department's American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees. Music creator groups told DOJ they believe the department’s preliminary decision to clarify that 100 percent licensing, in which any partial owner of a song would be allowed to fully license that song, is required under music licensing rules will compound ongoing damage to the music industry (see 1607200035). Some individual music creators decided to boycott the request for comments (see 1607190063). ASCAP, BMI and the National Music Publishers Association were also widely expected to file comments on the preliminary decision but haven't released them or indicated what they told Justice. NAB and the broadcast music licensing groups countered music creators’ statements about 100 percent licensing, saying a DOJ endorsement of the music industry’s long-standing use of fractional licensing would have undermined “the very rationale for ASCAP’s and BMI’s continued existence in conformance with antitrust law: their ability, in the words of the Supreme Court, to afford users ‘unplanned, rapid and indemnified access to any and all of the[ir] repetor[ies] of compositions.’” Codification of fractional licensing “would, instead, deprive users of those existing procompetitive attributes, substituting in their place a need to secure rights from every partial rights claimant to countless works as a condition of their performance,” the broadcast groups said: Such a change “would entail enormous transactions costs, a practical inability to obtain comprehensive license coverage, and resulting exposure on the part of users to potentially consequential -- even ruinous -- copyright infringement damages.” A fractional licensing mandate also would “upend countless industry agreements, including with program suppliers, that have been negotiated and agreed upon in reliance on the existing music performance rights system,” the broadcast groups said. DOJ was expected to release a final decision as soon as Monday, but it’s unclear whether a request from House IP Subcommittee Vice Chairman Doug Collins, R-Ga., and four other House Judiciary Committee members for an independent review of the consent decrees (see 1607200075) will delay the department’s announcement, an industry lobbyist told us.

GOP presidential nominee Donald Trump in his acceptance speech Thursday at the Republican National Convention promised again to end China’s “outrageous theft” of U.S. citizens’ IP. Trump’s pledge to protect U.S. IP from China has been the candidate’s only stated position on copyright policy, leading several industry lobbyists to conclude it’s too early to say how Trump would handle copyright issues if elected president (see 1606290080). During his remarks, Trump also slammed excessive regulation, "the greatest job killer of them all," he said. "We will end it very, very quickly." Under his administration "in my first 100 days," he would go to the department heads in government to demand projects they could slash. “The politicians have talked about this for years, but I am going to do it," Trump said.

EFF led the filing of a lawsuit Thursday against the federal government seeking to end enforcement of the Digital Millennium Copyright Act's Section 1201, claiming the DMCA's ban on circumvention of technological protection measures and its anti-trafficking provisions overly restrict First Amendment rights. EFF is representing Johns Hopkins University Information Security Institute assistant professor Matthew Green, media tech firm Alphamax and company owner Andrew Huang, who jointly filed the suit in U.S. District Court in Washington, D.C. The EFF-backed suit is directed at DOJ, the Library of Congress, Copyright Office and their leaders. EFF said Section 1201's provisions “broadly restrict the public’s ability to access, speak about, and use copyrighted materials, without the traditional safeguards -- such as the fair use doctrine -- that are necessary to protect free speech and allow copyright law to coexist with the First Amendment.” The threat of enforcement actions in the section “chills protected and noninfringing speech that relies on copyrighted works,” particularly speech about computer security research and the ability to shift the format of copyrighted works, EFF said. The CO triennial review process for considering exemptions to Section 1201's anti-circumvention rules doesn't “alleviate these problems” and is itself an “unconstitutional speech-licensing regime,” EFF said. Then-acting Librarian of Congress David Mao granted 10 exemptions in October after the CO's most recent triennial review, including a delayed exemption for security research. The office recommended against granting a proposed exemption allowing space-shifting and format-shifting of videos and other media for personal use (see 1510270056). EFF, which actively participated in the CO's most-recent Section 1201 triennial review and backed multiple exemptions, said it believes the LOC's failure to grant the format-shifting exemption and a broader security research exemption violate both the First Amendment and Administrative Procedure Act. “The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said EFF Staff Attorney Kit Walsh in a news release. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.” Public Knowledge Policy Fellow Kerry Sheehan lauded the EFF lawsuit, saying in a news release it “highlights fundamental failures by the Copyright Office in the DMCA exemption process. The Office has erected a litany of administrative barriers, not required by the law itself, to scholars, technologists, consumers, and many others ensnared by unintended consequences and indefensible applications of Section 1201. Even when the Copyright Office does recommend exemptions, they are often so narrow as to be practically useless. In light of the Copyright Office’s mismanagement, this constitutional challenge is hardly surprising.”

MPAA and RIAA lauded DOJ for shutting down No. 1 BitTorrent site Kickass Torrents (KAT). The website is believed to have distributed more than $1 billion worth of pirated media and drew in more than 50 million unique visitors per month before its shuttering, DOJ said. The department acted Wednesday to seize seven domain names and one bank account associated with KAT, while simultaneously filing a criminal complaint in U.S. District Court in Chicago against Artem Vaulin on allegations he owned and operated the website. Vaulin was arrested in Poland and faces four charges in the U.S. -- two counts of criminal copyright infringement and one count each of conspiracy to commit criminal copyright infringement and conspiracy to commit money laundering. “In an effort to evade law enforcement, Vaulin allegedly relied on servers located in countries around the world and moved his domains due to repeated seizures and civil lawsuits,” said Assistant Attorney General Leslie Caldwell in a news release. “His arrest in Poland, however, demonstrates again that cybercriminals can run, but they cannot hide from justice.” Websites like KAT “brazenly facilitate all kinds of illegal commerce,” said IRS Criminal Investigation Chief Richard Weber in the news release. “In a music industry that depends upon legal digital distribution platforms for the majority of its revenues, targeted criminal actions play an important role in protecting the ability of creators to earn a living,” said RIAA CEO Cary Sherman in a statement. “This case shows that individuals who use the veil of anonymity of the Internet to make a business of preying upon the creative industries are not beyond the reach of the law.” MPAA believes “this criminal case is a major step to reduce illegal theft of creative content by large-scale piracy sites,” said CEO Chris Dodd in a statement.

GAO is recommending the Patent and Trademark Office take steps to more consistently define patent quality and better communicate its patent quality standards in agency-produced documents. GAO said in a report released Wednesday that the number of new patent infringement lawsuits is continuing to rise despite recent PTO efforts to address patent quality. GAO praised PTO for its recent efforts, including the enhanced patent quality initiative, but said the agency’s lack of a consistent definition of patent quality makes it “unable to fully measure progress toward meeting its patent quality goals.” GAO said 70 percent of PTO’s patent examiners don’t believe they have sufficient time to do a thorough review of a patent application given current workloads, meaning PTO should reassess its workload requirements and the time it allots per patent examination. PTO “generally agreed” with the findings and is taking steps to implement the recommendations, GAO said.

Music Creators North America and two international groups of music creators jointly protested the DOJ Antitrust Division's preliminary decision on its review of the department's American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees via a filing with DOJ obtained Tuesday. The other signatories on the filing were the European Composers and Songwriters Alliance and the International Council of Music Creators. MCNA member groups include the Songwriters Guild of America and the Society of Composers & Lyricists. The music creator groups' protest against the DOJ decision tracked with other music creators' comments in opposition to the plan not to alter the existing ASCAP/BMI consent decrees and to clarify that 100 percent licensing, in which any partial owner of a song would be allowed to fully license that song, is required under music licensing rules. Some music creators elected to boycott DOJ's request for comment (see 1607190063). MCNA and the other music creator groups criticized Justice for fast-tracking the comment period on its preliminary decision, saying they don't believe DOJ's argument that it needs to get its final decision “on the record as soon as possible” isn't a valid reason not to allow an extension of the deadline. Comments were due Friday. The music creator groups said they regard the preliminary decision “as serious injustices that will further damage the ability of songwriters and composers to earn a living through our chosen profession.” The preliminary decision “appears poised to add” to music creators' income devaluation resulting from marketplace changes in the digital age, the groups said. The preliminary decision is also “likely to cause serious damage to the future of American and global music culture” by “erecting hurdles that may substantially hinder collaboration among music creators in the future and by adopting positions that drastically reduce” financial incentives to creation, the groups said. DOJ hasn't given “adequate consideration” to the international implications of its decision or the objections of the Copyright Office to the reinterpretation of music licensing rules to mandate 100 percent licensing, the groups said. DOJ's decision not to approve music publishers' request to allow “partial withdrawal” from the ASCAP and BMI consent decrees is a positive step but “we do not regard this narrow point as negating in any way the damage” caused by the rest of the preliminary decision, the groups said.

The Internet Association attempted to dispel what it calls five “myths” about the safe harbors in Digital Millennium Copyright Act Section 512. The Facebook- and Google-backed group recently warned against proposals to revamp section, saying proposals designed to rein in internet companies would hinder free speech and growth in the digital economy (see 1606210040). IA said in a Thursday blog post it believes “one of the worst arguments for changing the DMCA is that it is old -- the whole point of the safe harbors was that they weren’t meant for the technology of 1998.” Congress “didn’t write the law about 1998 technology for a reason: doing so would create a ceiling on creativity,” IA said. “Instead, policy makers knew the law could never keep pace with technology in the digital age, so they created a future-proof, clear system that established a firm floor of action and (critically) enacted strong incentives for good actors to develop practices that benefited both platforms and creators.” Online copyright infringement has diminished in the U.S. since DMCA enactment, countering the claims of interest groups that “have attempted to diminish the effectiveness of safe harbors by claiming that piracy is up and therefore the law isn’t working for rightsholders,” IA said. “DMCA-compliant platforms seeking legal distribution have flourished, reaching billions of users and growing to 6 percent of U.S. GDP, while infamous sites like Napster and Grooveshark have been unable to survive.” Claims the law hurt creators are “especially troubling, given the wealth of data and examples that we have to prove that just the opposite is true,” IA said. The group said Section 512 doesn't put too much of the onus for identifying copyright infringement on rightsholders, saying “all stakeholders have responsibilities” under the statute and “internet companies are going above and beyond those responsibilities to create a thriving ecosystem.” Proposals to revamp the act to institute a “notice and staydown” system would “shift the responsibility of identifying infringing works from rightsholders to the parties least qualified to make legal determinations about the nature of a work,” IA said. “To avoid staggering liability, platforms would be forced to keep a broad array of potentially legal content offline, limiting the public’s ability to meaningfully access and distribute legitimate sources of creative works.”

Electronic Frontier Foundation Special Adviser Cory Doctorow said the security research community should subject a World Wide Web Consortium (W3C) HTML Media Extensions Working Group recommendation on a standardized application programming interface for encrypted media extensions (EME) to the “closest possible scrutiny.” The working group's published recommendation is still a draft document and “does not imply endorsement” by W3C members, the consortium said. The HME Working Group's recommended application program interface (API) would be an interoperable open standard to enable communication between web browsers and digital rights management (DRM) software. The API also would allow HTML5 playback of streaming video and other DRM-protected content without the need for third-party plug-ins. The API “does not define a content protection [DRM] system,” the HME Working Group said in the recommendation: “Rather, it defines a common API that may be used to discover, select and interact with such systems" and with simpler content encryption systems. DRM implementation “is not required to be implemented as a common baseline,” the working group said. EFF repeatedly has objected to the HME Working Group's development of the EME API and sought W3C stakeholders' support for an EFF-proposed covenant that would obligate all consortium stakeholders not to file or join a lawsuit against entities under the Digital Millennium Copyright Act and similar laws for circumventing technological protection measures for security research purposes (see 1603240055 and 1604050056). “We will keep working to persuade the W3C to adopt our sensible proposal” Doctorow said in a Wednesday blog post. Meanwhile, he said, scrutiny of the EMI API recommendation is needed because “the black hats who are already doing this are not bound by fear of the DMCA, and they are delighted to have an attack surface that white hats are not allowed to investigate in detail.”

A range of copyright stakeholder groups lauded the Senate's confirmation Wednesday of Carla Hayden to become librarian of Congress. Senate confirmation followed a behind-the-scenes effort to lift a Republican senator's anonymous hold (see 1607130061). American Library Association President Julie Todaro said the library community “is elated” at Hayden's confirmation. “There is no doubt that Dr. Hayden will have a positive impact by leading efforts to establish a more modern approach to serving” Library of Congress stakeholders, Todaro said in a statement. Hayden's confirmation is “of paramount importance to our organization, and to many other users of the Copyright Office services,” Copyright Alliance CEO Keith Kupferschmid said in a statement. “Before her lies a tremendous opportunity and challenge to redefine what our national library can and should be for the 21st century. We in the copyright community look forward to working with Dr. Hayden and hope that she continues the deference that the Librarian of Congress has historically demonstrated to the Register of Copyrights; and demonstrates a continued and deep respect for the value of copyright and creativity that was evidenced during her confirmation hearing.” The Music. Innovation. Consumers. Coalition said in a statement it plans to work with Hayden “to modernize [the CO] and bring balance to copyright policies that ensure all Americans can continue to enjoy the music they love.” MPAA said it “looks forward to working closely with Dr. Hayden in our shared mission of protecting and promoting our nation's collective wisdom and creativity.” The R Street Institute believes “it is a relief to see that an institution as important as [the LOC] will be run by an experienced administrator with a deep understanding of information management and a track record of managing information technology and modernization efforts,” said Senior Fellow Zach Graves in a statement. “While some conservatives were obstructing her confirmation to score a few cheap political points, this effort had no clear goal or end-game. And they were ultimately just shooting themselves in the foot.”