A serious push to enact the Fair Play Fair Pay Act (HR-1836) “will be politically challenging,” said Tom Sydnor, visiting fellow at the American Enterprise Institute's Center for Internet, Communications and Technology, in a Tuesday blog post. “Nevertheless, from international, national, and economic perspectives, it remains what it has always been -- a 'public-policy no-brainer.'” HR-1836, refiled in March (see 1703300064), would require most terrestrial radio stations to begin to pay performance royalties. Attempts to enact a terrestrial performance right have been lightning rods for broadcaster criticism (see 1702020064 and 1703030059). The “principle of technological neutrality” created in the 1976 Copyright Act “strongly suggests the propriety of eliminating the analog-broadcast-radio exception to [U.S.] public performance rights,” Sydnor said. “It makes no sense for [U.S.] copyright laws to give -- for free -- to radio broadcasters who use old, analog technologies public-performance rights that providers of satellite or internet-based radio-like services must pay for under existing [U.S.] compulsory licenses.” U.S. copyright laws should be “just as applicable and broadly construed as applied to later-developed 21st-century distribution technologies as they were to distribution technologies developed and deployed well before 1976,” Sydnor said.

Comments on the NPRM on eliminating the annual International Bureau traffic and revenue reports and circuit capacity reports will be due in 30 days, with replies due 15 days after, said an FCC notice to be published in Monday's Federal Register. Commissioners approved the bureau reporting NPRM at their March 23 meeting (see 1703230042).

Customs and Border Protection again said a redesign of network switches imported by Arista Networks falls outside of an International Trade Commission limited exclusion order, Arista said in an SEC filing. Arista is in litigation with Cisco over patent infringement allegations (see 1701170063). The ruling, sent to Arista April 7, is a reversal for CBP, after the agency revoked a similar finding in January. "CBP has issued instructions to the U.S. ports to permit entry of the Company’s redesigned products for consumption and sale," Arista said Tuesday. The ruling followed an "inter partes process" that included "extensive briefing by both parties and a hearing during which both parties presented their arguments," Arista emailed.

WWE is pursuing across multiple courts an array of John Doe defendants who allegedly illegally copied and distributed its video content online. The company in a motion (in Pacer) for discovery filed Tuesday in U.S. District Court in Honolulu asked for a green light to serve a third-party subpoena on Hawaiian Telcom and Time Warner Cable (part of Charter Communications) for the identities behind IP addresses responsible for BitTorrent distribution of its motion picture Eliminators. Monday, WWE sued an array of other John Does in U.S. District Court in Philadelphia and said in its suit (in Pacer) they're all Comcast subscribers and it plans to seek discovery including a subpoena of Comcast records for their true identities. U.S. Magistrate Judge Nancy Koppe of Las Vegas earlier this month approved a WWE ex parte motion (in Pacer) attached to another WWE piracy suit, letting it subpoena unnamed ISPs for John Doe information. WWE has pending motions (here and here, in Pacer) in U.S. District Court in Bridgeport, Connecticut, and with another federal suit in Las Vegas about serving ISPs with third-party subpoenas regarding piracy of its video content. The ISPs didn't comment Wednesday.

The 9th U.S. Circuit Court of Appeals' ruling in Mavrix Photographs v. LiveJournal “will be a lifeline to content creators who are being destroyed by mass infringement online,” Mavrix lawyer Peter Afrasiabi of law firm One e-mailed us Monday. A three-judge 9th Circuit panel ruled Friday that Digital Millennium Copyright Act Section 512 safe harbor provisions don't shield LiveJournal from infringement lawsuits in some instances because the company's cadre of volunteer moderators had a significant amount of control over the nature of user-generated content posted on the social media platform (see 1704100040). “LiveJournal, like so many online businesses, encourages users to upload content they don’t own so LiveJournal can display it and reap advertising revenues,” Afrasiabi said. “Then they try to hide behind the DMCA safe harbors to avoid liability for known infringements. This decision is an important first step in putting an end to that business model.”

Qualcomm escalated its legal battle with Apple, filing a countersuit on claims Apple made “false statements” against Qualcomm and was in breach of agreements with the smartphone chip firm. It followed Apple's January lawsuit against Qualcomm claiming Qualcomm gouged Apple for billions of dollars in patent royalties on technologies it didn't own (see 1701230067). Qualcomm sought dismissal last week of the FTC's complaint against the company alleging Qualcomm had a monopoly in baseband processors used in cellphones and other devices (see 1701170065, 1704040040 and 1704040037). Qualcomm filed its countersuit in response to the Apple suit in the U.S. District Court in San Diego. Apple “chose not to utilize certain high-performance features of the Qualcomm chipsets for the iPhone 7 (preventing consumers from enjoying the full extent of Qualcomm’s innovation)” and “falsely claimed there was 'no difference' between” the performance of iPhones that contained Intel and Qualcomm chips, Qualcomm said in its complaint: Apple “threatened” to not publicize the differences in chip performance, which would make “public comparisons about the superior performance of the Qualcomm-powered iPhones.” Qualcomm claimed Monday Apple made false statements about Qualcomm to undermine its reputation. Apple “has launched a global attack on Qualcomm and is attempting to use its enormous market power to coerce unfair and unreasonable license terms from” the company, said Qualcomm General Counsel Don Rosenberg in a statement. An Apple spokesman pointed to its statement on the January suit. The company said then that “despite being just one of over a dozen companies who contributed to basic cellular standards, Qualcomm insists on charging Apple at least five times more in payments than all the other cellular patent licensors we have agreements with combined.”

Samsung abandoned its bid at the Patent and Trademark Office to register “HDR10" as a trademark for a wide range of possible commercial and consumer devices and applications (see 1703150031), PTO records show. Samsung left intact its application to register “HDR10 Plus.” HDR10 has been in routine, ubiquitous industry use as standard nomenclature for perceptual-quantization-based, SMPTE-compliant high-dynamic-range products and service. Samsung representatives didn’t comment further.

Moderators can be considered to have enough knowledge of copyright infringement on a website to undermine an ISP’s Digital Millennium Copyright Act Section 512 safe harbors, the 9th U.S. Circuit Court of Appeals ruled in Mavrix Photographs v. LiveJournal. Paparazzi company Mavrix sued in 2014 over posts on LiveJournal’s “Oh No They Didn’t!” gossip blog that contained its photos of Beyonce and other celebrities. LiveJournal argued it qualified for DMCA safe harbor protections because it didn’t have direct knowledge of the infringing blog posts. Mavrix contended LiveJournal’s team of volunteer moderators, who had the power to review blog posts for compliance with the platform’s terms of service, would have been aware of the infringing content. U.S. District Court in Santa Ana, California, ruled in 2014 that LiveJournal qualified for safe harbor protections because the blog posts were user generated and not solicited by the platform. The 9th Circuit disagreed. “The moderators performed a vital function in LiveJournal’s business model,” said Judge Richard Paez for the three-judge panel. “There is evidence in the record that LiveJournal gave moderators express directions about their screening functions, including criteria for accepting or rejecting posts. Unlike other sites where users may independently post content, LiveJournal relies on moderators as an integral part of its screening and posting business model.” Judges Morgan Christen and Harry Pregerson also heard the case. Posts “are at the direction of the user if the service provider played no role in posting them on its site or if the service provider carried out activities that were 'narrowly directed' toward enhancing the accessibility of the posts,” Paez ruled. "The ONTD moderators manually review submissions and publicly post only about one-third of submissions. The moderators review the substance of posts; only those posts relevant to new and exciting celebrity gossip are approved. The question for the fact finder is whether the moderators’ acts were merely accessibility-enhancing activities or whether instead their extensive, manual, and substantive activities went beyond the automatic and limited manual activities we have approved as accessibility-enhancing.” The 9th Circuit remanded the case to the district court for a jury trial using their safe harbors threshold test. “That moderators reviewed those submissions shouldn’t change the analysis,” said Electronic Frontier Foundation Legal Director Corynne McSherry in a Saturday blog post. “The DMCA does not forbid service providers from using moderators.” Many “online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service,” McSherry said. “Others lack the technical or human resources to do so. Access to DMCA protections does not and should not turn on this choice.” LiveJournal and Mavrix didn’t comment.

The Patent and Trademark Office said it began an initiative to use five years of data from Patent Trial and Appeal Board proceedings to improve the PTAB process. The data, particularly feedback on inter partes review proceedings, will “ensure that the proceedings are as effective and fair as possible within [PTO’s] congressional mandate to provide administrative review of the patentability of patent claims after they issue,” PTO said in a Monday news release. “This initiative will examine procedures including, but not limited to, procedures relating to multiple petitions, motions to amend, claim construction, and decisions to institute. It will evaluate the input already received from small and large businesses, startups and individual inventors, IP law associations, trade associations, and patent practitioners, and will seek to obtain more feedback regarding potential procedural enhancements.” PTO Senior Advisor Coke Morgan Stewart will lead the effort, the office said.

The American Society of Composers, Authors and Publishers collected almost $1.6 billion in revenue in 2016 and distributed $918 million to its songwriter, composer and music publisher members, the performing rights organization (PRO) said Wednesday. ASCAP said its licensing revenue increased almost 6 percent year-over-year to $759 million because of a 41 percent increase in revenue from audio streaming services and increased revenue from satellite radio services. The PRO's foreign revenue increased to $300 million, up $1.5 million over its 2015 foreign revenue total. ASCAP's “record high revenues and distributions in 2016 are a testament to the amazing repertory of music we are privileged to represent, and to our investment in innovations that enable us to continue to grow revenues, leverage our scale and increase efficiencies in our operations,” said CEO Elizabeth Matthews in a news release.