MPEG LA is launching patent-pool licensing for the MPEG dynamic adaptive streaming over HTTP (MPEG Dash) standard, the licensing authority said in a Thursday announcement. MPEG Dash enables the streaming of content over internet application protocol to be “dynamically adapted to changing network conditions to provide smooth, high quality playback of video and other content without stalls or re-buffering events,” said MPEG LA. Current Dash patent holders in the pool include Amotech, AVerMedia Technologies, CableLabs, Columbia University, the Electronics and Telecommunications Research Institute, Fraunhofer, Hitachi Maxell, Nippon Telegraph and Telephone, Siemens and SK Planet.

The Phoenix Center pushed back Wednesday against the broadcasting industry's contention that federal law shouldn't require most terrestrial radio stations to pay performance royalties, saying in a report that any promotional effect from radio plays of a song are “fully internalized in a marketplace bargain” between the music and broadcasting industries. Broadcasters have cited the promotional benefits of radio play as a reason for opposing attempts to mandate performance royalty payments from terrestrial broadcasters. Broadcasters most recently cited the promotional effect in opposition to the Fair Play Fair Pay Act (HR-1733), which would in part require terrestrial broadcasters to begin paying performance royalties (see 1504160050). A “market-negotiated royalty rate balances the income derived by commercial users of music and any promotional effect those users provide, revealing that any promotional effect is fully internalized by the parties,” Phoenix said. “If the promotional effect is large enough to justify a zero royalty rate, then the music industry will voluntar[il]y accept a zero rate in a market negotiation. If not, then a positive royalty rate will be established.” Alleged promotional effect “provides no basis for federal law to mandate the free use of music by the radio broadcast industry," said Chief Economist George Ford in a news release. "Promotional effects, even if present and strong, are not a type of market failure requiring a legislative or regulatory fix.” NAB “is pleased that Congress has long rejected a job-killing fee on America's hometown radio stations while recognizing the unique promotional value that local radio provides record labels and performers,” a spokesman said in a statement. “Our stations are proud to be a primary platform for new music discovery, and NAB will strongly oppose RIAA-backed legislation that would transfer hundreds of millions of dollars from local radio to mostly offshore record labels.” The spokesman separately told us he assumes that the study “was funded by record label interests, and if so, it seems to me that should be fully disclosed.” The center didn't immediately comment on NAB's claims. A musicFIRST spokesman separately flagged the Phoenix Center report, saying in an email that as House Judiciary Committee Chairman Bob Goodlatte, R-Va., “prepares to move towards the next steps of the Committee’s copyright review process, this study debunks Big Radio’s promotional value case.”

Patent and Trademark Office Director Michelle Lee said Tuesday that she is “optimistic” that President-elect Donald Trump's administration “will share our appreciation of the importance of intellectual property as a driver of economic growth.” IP stakeholders have said they believe the incoming administration will take a hands-off approach to IP policymaking, allowing the House and Senate Judiciary committees to take the lead (see 1611090039). Further discussions on patent litigation revamp legislation “will likely occur” later in the 115th Congress “after some of the other priorities including filling a Supreme Court vacancy, immigration and tax reform are addressed, and any legislative patent reform will likely be more targeted, rather than the comprehensive reforms we’ve seen in prior Congresses,” Lee said during a speech at an Intellectual Asset Management event: “I would hope any legislative proposal will take into account the numerous positive changes that have occurred recently in the patent system,” including recent federal court rulings. Legislative discussions may include “venue reform and possibly changes to Section 101” of the Patent Act and the Patent Trial and Appeal Board, Lee said in a prepared version of her speech.

With the 11th U.S. Circuit Court of Appeals having upheld a Florida court's denial of a motion for a preliminary injunction sought by streaming video company Wreal (see 1610310010), both Wreal and defendant Amazon want the case reopened and a stay lifted, the two said in a joint motion (in Pacer) filed Monday with U.S. District Court in Miami. They disagreed on details of a pretrial schedule in light of Amazon's pending motion for summary judgment and agreed on dates as per a court request for readying a scheduling order. The two are proposing that the trial commence July 24. Wreal, which operates the FyreTV streaming pornography service, is suing Amazon over its Amazon Fire TV trademark.

Former Register of Copyrights Maria Pallante's ouster last month is an example of “overreach” by Librarian of Congress Carla Hayden, said Tom Sydnor, visiting scholar at the American Enterprise Institute's Center for Internet, Communications and Technology, in a blog post Thursday. Hayden removed Pallante as register and appointed her Library of Congress adviser for digital strategy. Pallante then resigned (see 1610210061 and 1610250062). Stakeholders noted that Pallante's support for making the Copyright Office an independent agency was likely a major factor (see 1610240052). Sydnor criticized Public Knowledge Visiting Senior Fellow Annemarie Bridy for a Washington Post blog post in which she faulted stakeholders who speculated on Hayden's reasoning. Stakeholders must “refocus, soon, on identifying the qualities and attitudes that we want in a new register,” but it's faulty to not question Pallante's ouster given that the move “has no precedent,” Sydnor said: "Dr. Hayden's predecessors understood that Members of Congress and their staffs tend to be sophisticated enough to recognize the sometimes serious tensions between the copyright-related interests” of the LOC and CO. Even if Hayden was well intentioned, she “really should have done a better job of executing her historically unprecedented decision,” Sydnor said. “Outsiders need not speculate about motives in order to conclude that [Pallante] was removed under circumstances that should seem disturbing to reasonable outsiders.” Pallante's ouster was handled “awkwardly,” Sydnor said. To “ensure” that Hayden's search for a new register identifies a candidate “worthy of that title,” stakeholders “clearly need to learn more about Dr. Hayden's views and intentions,” Sydnor said. "Changes in leadership can be expected to bring changes down the org chart when there is, as there appears to have been in this case, deep disagreement over a fundamental issue concerning the structure and identity of the organization," Bridy said in an email. Pallante's endorsement of CO independent is "without historical precedent -- so far as I can tell," Bridy said. "To my mind, that helps to explain why there is no historical precedent for a Register's removal upon the appointment of a new Librarian of Congress." The LOC didn't comment.

The Copyright Office's study of the Digital Millennium Copyright Act's Section 512 evaluates “whether a law passed in the 20th Century is still the best policy in the 21st,” Fletcher Heald copyright lawyer Kevin Goldberg said in a blog post Wednesday. The CO sought further comment last week on how to improve Section 512's notice-and-takedown process and safe harbors (see 1611080021). DMCA is the product of a “different time” given that less than 5 percent of the world's population used the internet when the law was enacted in 1998, Goldberg said. “The purpose of Section 512 was to try and keep small copyright infringement disputes out of the courts -- especially those which might be filed against [ISPs] who could otherwise be sued for the infringing activities of third parties,” Goldberg said. “Copyright owners don’t love this regime because it often amounts to a game of 'whack-a-mole.'” Meanwhile, website operators and some other parties “feel a burden to keep up, even as they acknowledge that they are benefiting from the immunity provisions,” Goldberg said. “Many individuals and free speech organizations feel the notice-and-takedown regime is too weighted in favor of copyright owners, putting individual webizens in a defensive position upon the filing of any Takedown request.”

U.S. and European copyright owners lose more than $150 million annually in royalties because of the Copyright Act’s Section 110(5)(b), consulting firm PMP Conseil said in a European Grouping of Societies of Authors and Composers-funded study. The section, passed as part of the 1998 Fairness in Music Licensing Act, conditionally exempts bars and restaurants of less than 3,750 square feet from getting a public performance license from the American Society of Composers, Authors and Publishers or Broadcast Music Inc. The exemption costs EU rightsholders $44 million in revenue annually, GESAC said. It surveyed “a wide survey of US bars, restaurants and retail establishments to gauge their use of music,” the group said in a news release. The U.S. “is one of only two more economically developed countries that have an exemption in place for playing music in bars, restaurants and retail establishments by means of radio or TV” and “it is unquestionable that this exemption has an unacceptable negative impact on authors,” GESAC said. The group plans to present the study’s findings to the European Commission and lobby the EC to pressure the U.S. to rescind Section 110(5)(b). The U.S. and EU “are currently holding talks, although fragile, over trade agreements where the harm caused by this exemption needs to be raised and addressed,” GESAC General Manager Véronique Desbrosses said. “We expect this study to have a significant effect on the weight of the issue.”

The Copyright Office sought further comment Tuesday on its study of Digital Millennium Copyright Act Section 512 notice-and-takedown process and the section’s safe harbors. The review in part examines the effectiveness of the current notice-and-takedown process, the counter-notification process and the legal standards that apply under the section (see 1512300039). The CO received more than 91,000 responses to its initial request for comment, though the vast majority were generated as part of a Fight for the Future campaign (see 1604010057 and 1604040051). Stakeholders said following two May roundtables on the study that they expected the CO to favor nonlegislative fixes to Section 512 -- particularly voluntary measures -- in a final report (see 1605040064 and 1605130047). The initial round of comments and the May roundtables have shown “a number of themes merit additional consideration,” the CO said in a notice in the Federal Register. “Many of these relate to questions of balance,” it said, including “how to weigh the diverse interests and needs of affected stakeholders.” The office also said it's interested in feedback on “how to continue to propel” the DMCA's twin public interest goals of “fostering a robust and innovative online environment while protecting the rights of content creators.” The CO sought comment on how Section 512 should be updated to account for diversity in the internet ecosystem and how policymakers should factor diverging views of the efficacy of 512's safe harbors. The office also sought comment on how to update the safe harbors system to address issues with its current efficacy and how to clarify Section 512 to address changes in copyright case law. Comments are due Feb. 6. Studies "providing quantitative or qualitative data relevant to" Section 512 are due by March 8.

An FTC study of business practices of patent assertion entities “does not, for the most part, support the patent troll caricature and, for better or worse depending on one's point of view, diminishes the utility of PAEs as a poster child for reform,” said Technology Policy Institute Senior Fellow Thomas Lenard in a blog post Monday. The commission in early October proposed changes aimed at mitigating what it called “nuisance infringement litigation” brought by a subset of PAEs. The study identified two distinct categories of PAEs -- “litigation” PAEs that relied largely on the use of revenue sharing arrangements to acquire patents and “portfolio” PAEs that bought patents outright. The more problematic PAE subset -- “litigation PAEs” -- were more common among the 22 entities included in the review and were responsible for the vast majority of nuisance litigation (see 1610060045). The study “found no evidence of large-scale demand letter campaigns for low-revenue licenses, one of the elements of the patent troll narrative,” Lenard said. “The FTC also found no evidence that PAE patents are low quality as evidenced by their receiving more citations than the average patent.” The report "acknowledges that its results are not generalizable since the lack of data on the universe of PAEs makes it impossible to draw a statistical sample," Lenard said. "To the extent the data are descriptive of PAEs generally, they do not lead to unambiguous policy recommendations, although the report makes several.” The FTC’s recommendations “do not follow from the rest of report,” Lenard said. “More importantly, we do not know if the proposed reforms would be beneficial because they have not been subject to any sort of benefit-cost analysis. This is especially important because the reforms would appear to apply to all patent litigation (not just PAEs) and perhaps even other types of litigation.”

The National Music Publishers Association and Nashville Songwriters Association International jointly proposed Tuesday that interactive streaming and limited downloads of a song should be assessed mechanical royalties for 2018-22 that are the greater of a $0.0015 per-play rate or a flat $1.06 per-end user royalty per month. Days earlier, the two groups reached a settlement with Sony Music Entertainment in which the label agreed to a proposal for the Copyright Royalty Board to maintain existing mechanical rates for CDs, digital downloads and ringtones. Sony agreed to withdraw as a party to portions of the CRB’s 2018-22 mechanical rate-setting as it related to on-demand and streaming services (see 1610310060). The NMPA/NSAI rate proposals for streaming mechanical royalties “properly align royalties with economic value and consumption and balance the interests of licensors and licensees in achievement of the policy objectives” in Copyright Act Section 801(b), the groups said in a filing. “As demonstrated by the Copyright Owners’ economic witnesses, the proposed rates are not merely reasonable, but are well below the expected rates that would be obtained in an unconstrained market, by reference to the most comparable benchmarks available.” The existing licensing model “is structured as a percentage of revenue, and we must change this to a structure where songwriters are paid in accordance with the inherent value -- and popularity -- of their work instead of the success of a given service’s business model,” said NMPA CEO David Israelite in a statement. “We are laser-focused on achieving royalty rates that are set on a per-play and per-user basis.”