Patent and Trademark Office Director Michelle Lee encouraged Congress Thursday to adopt the Internet Policy Task Force's recommendations for amending U.S. copyright law on statutory damages to address issues that may result in excessive awards. The IPTF included the legislative recommendations in a white paper that also recommended nonlegislative solutions on the first-sale doctrine and the eligibility of remixes to claim fair use protections (see 1601280065). “Creators and users of copyrighted content face many challenges and opportunities online,” Lee said in an opinion piece in The Hill. “Our goal is to ensure that creativity and innovation grow -- and thrive -- today and into the future. We believe the White Paper helps point a path toward that objective.”

About 250 musicians affiliated with the Recording Academy returned to Capitol Hill Thursday to lobby​ for a legislative revamp of music licensing law, the industry group said. “Regardless of changes in delivery platforms, music is a valuable commodity whose creators deserve fair compensation,” said academy Chief Industry, Government and Member Relations Officer Daryl Friedman in a blog post for The Hill. Academy members focused on seeking consideration of the Fair Play Fair Pay Act (HR-1733), but also sought support for including provisions from the Songwriter Equity Act (HR-1283) and the Allocation for Music Producers Act (HR-1457) in “any music licensing reform” legislation, Friedman said. “These bills would go far toward leveling the playing field for music creators who currently find themselves squeezed to the margins of an industry that uses their creative endeavors as the basis of their businesses while failing to justly compensate them.” HR-1733 would require most terrestrial radio stations to begin paying performance royalties and would require digital broadcasters to begin paying royalties for pre-1972 sound recordings. The bill would also require satellite broadcasters to pay royalties at market rates. The academy also made HR-1733 the focus of its lobbying last year (see 1504160050).

The 2nd U.S. Circuit Court of Appeals paused its review of Flo & Eddie's lawsuit against Sirius XM Wednesday, sending the case to the New York Court of Appeals so that court can definitively rule on whether New York law recognizes a public performance right for pre-1972 sound recordings and the scope of the state's law. The status of pre-1972 sound recordings under New York law constitutes a “significant and unresolved issue” of state law that “is determinative” in the 2nd Circuit's eventual decision on Sirius XM's appeal of the case, said Judge Guido Calabresi in the three-judge 2nd Circuit panel's ruling. Sirius XM was appealing a 2014 U.S. District Court in New York decision in favor of Flo & Eddie's lawsuit against the company. Flo & Eddie, who own the copyright to “Happy Together” and the rest of The Turtles' music library, have sought back performance royalties on The Turtles' pre-1972 recordings. NAB, Pandora and other groups supporting Sirius XM have questioned whether New York common law includes a performance right for pre-1972 recordings, something that doesn't exist in federal law (see 1508060052). New York's “interest in compensating copyright holders may perhaps outweigh the cost of making such a change,” the 2nd Circuit said. “Whatever the merits of such a determination might be as a value judgment, however, it is a value judgment, which is for New York to make.”

The Patent and Trademark Office remains “open to making whatever changes are necessary to ensure the [Patent Trial and Appeal Board (PTAB)] trials are as effective and as fair as possible, provided those changes fall within our congressional mandate,” said PTO Director Michelle Lee during a Federal Circuit Judicial Conference event Monday. PTO issued revised PTAB rules earlier this month (see 1604010064) after voluntarily using a rulemaking process that included public comment, Lee said in prepared remarks. “The process we followed here is an excellent example of how we are never satisfied with the status quo, we are always looking for ways to improve, and we listen carefully to public input.” The revised rules allow PTAB to continue using a strict standard for re-examining most patents. Other revisions included allowing patent owners to file new evidence in opposition to a challenge and a rule requiring petitioning parties to prove they are not trying to abuse the PTAB system.

Despite claims by defendants Hawaiian Telcom, Time Warner Cable and its Oceanic Time Warner Cable subsidiary to the contrary, Broadband iTV's patent "is more than merely automatizing a pre-existing manual process of hand-delivering tapes with handwritten notes to generate a VOD system," Broadband iTV said in a reply brief (in Pacer) filed Wednesday with the U.S. Court of Appeals for the Federal Circuit. In its brief for its appeal of a 2015 ruling by a U.S. District Court in Honolulu, Broadband said the defendants and the Honolulu court refuse to recognize the patent, misstate the law on patent eligibility and misapply the two-step analysis laid out in Alice Corp. vs. CLS Bank. Broadband iTV sued in 2014, alleging the defendants were violating its patent on conversion, navigation and display of video content in their digital TV services, including VOD. Hawaiian Telcom and TWC didn't comment Thursday.

Ambiguous legal standards and some copyright owners' aggressive practices are “undermining” the effectiveness of the safe harbor provision contained in the Digital Millennium Copyright Act's Section 512, particularly as it applies to small and medium-sized ISPs, the American Cable Association told the Copyright Office in comments released Tuesday. The CO received a mixed bag of more than 91,000 comments on its ongoing Section 512 study, which is assessing the effectiveness of the safe harbors and the existing notice-and-takedown process (see 1604010057 and 1604040051). ISPs are struggling to determine how to interpret the requirement that entities covered by the conduit safe harbor adopt and implement a policy to terminate Internet access of customers who are “repeat infringers,” ACA commented. Members are receiving an increasing number of takedown notices each day because of automated infringement detection technology, and dealing with the increasing number of notices has become burdensome, ACA said. To improve the conduit safe harbor, ACA recommended requiring copyright owners follow a standard takedown notice format and also suggested adopting guidelines that will distinguish between innocent and willful infringement.

MPAA and the National Federation of the Blind jointly called on the Senate to ratify the World Intellectual Property Organization's Marrakech Treaty on improving access to published works for the blind and otherwise print disabled. The treaty “provides a strong example of how nations and stakeholders can work together to improve access for the blind and those otherwise print disabled, while also remaining consistent with existing international copyright norms,” said MPAA CEO Chris Dodd and NFB President Mark Riccobono in a joint statement. “The agreement will have substantial benefits for blind and print disabled individuals, who will gain vastly increased access to the world's published works.” The treaty “strikes a meaningful balance that came about through collective action by a wide range of parties and the WIPO countries themselves,” Dodd and Riccobono said Tuesday.

The Patent and Trademark Office issued final changes Friday to the Patent Trial and Appeal Board's rules, allowing PTAB to continue to use a strict standard for re-examining most patents. PTAB will use a different standard -- the one used by federal district courts -- in cases where a patent would expire while the board is evaluating patent re-examination, PTO said in a notice in the Federal Register. The revised PTAB rules also will allow patent owners to file new evidence in opposition to a challenge and will require petitioning parties to prove they're not trying to abuse the PTAB system, the PTO said. The office said it won't continue a pilot program in which only one PTAB judge would evaluate whether to take up a patent re-examination case “after receiving negative responses” from stakeholders.

Application of the Digital Millennium Copyright Act's Section 512 safe harbor provisions and the proliferation of legal online content services is an indication “the content industry is winning” its fight against online piracy, the Internet Association said Tuesday in a blog post. Notice-and-takedown requests under Section 512 are steadily increasing and more than 60,000 online services now participate in the system, the IA said. “What's more, Internet companies have implemented technological solutions beyond the requirements of the law that make it easier than ever for copyright holders to combat online infringement,” the IA said. The proliferation of online content services has reversed the use of BitTorrent platforms, whose traffic now “has dropped to single digits” in overall Internet viewing percentage, the IA said. Netflix and YouTube now generate 50 percent of online traffic during primetime traffic hours, the IA said.

The U.S. Copyright Office said it plans a series of May roundtables in Washington and San Francisco on its studies on software-embedded consumer products and Digital Millennium Copyright Act Section 1201. Stakeholders were divided in February on how the CO should do its software-embedded products study and particularly on whether there's already a need to change copyright law to suit such products (see 1602170054). Several stakeholders have partially set their sights on the CO's proposal within the Section 1201 study to adjust the CO's triennial review process for Section 1201 exemptions to allow for presumptive renewal of previously granted exemptions (see 1603030060). The CO set roundtables on the software-embedded products study for May 18 in Washington and May 24 in San Francisco. The CO's Section 1201 roundtables will be May 19-20 in Washington and May 25-26 in San Francisco. All Washington-based roundtables will be at the Library of Congress' Madison Building, while San Francisco-based roundtables will be at the University of California's Hastings College of the Law, the CO said in a Monday notice in the Federal Register. The CO also plans roundtables on their DMCA Section 512 study May 2-3 at the New York University School of Law and May 12-13 at Stanford Law School (see 1603180059).