HPA Tech Retreat: Jim Burger Delivers a Washington Update

On the second day of the HPA Tech Retreat, Jim Burger, a partner at Thompson Coburn LLP in Washington, DC and copyright lawyer, gave his annual Washington Update. “Washington, as always, is a city under construction,” he said. “There’s a lot going on.” Burger discussed the potential impact of the Aereo decision on cloud storage, the latest regarding lawsuits against Dish Network, the FAA’s examination of drones, a very busy FCC and what’s next for net neutrality, and an update on the spectrum auctions.

HPA_Retreat_Jim_BurgerHe briefly touched upon Congress, now in the control of the Republicans, although not by enough votes to destroy the filibuster. “How many of you think this will be a productive Congress?” asked Burger, to laughter in the audience.

Recent issues regarding copyright included an update on ABC v. Aereo. The Supreme Court has ruled that Aereo “publicly performed copyrighted works without authorization,” with Justice Breyer writing the majority opinion.

“The problem is how he wrote the decision,” said Burger. “He said it looks and smells like cable TV, therefore guilty of a public performance. The concern of the technology industry is how this ruling might impact cloud storage.”

In the CBS/Fox/NBC copyright lawsuits v. Dish’s “Primetime Anytime & Auto Hop” and Dish Anywhere, the networks alleged “direct, contributory and vicarious infringement and inducement to infringe.” The judge ruled that Hopper was different than Aereo.

DISH_Hopper“Dish provides equipment but users initiate process, select content and receive transmission,” explained Burger. “The user is making those copies so there’s no secondary infringement.” The Hopper case is outstanding, said Burger, who expects that the ruling will be appealed.

Burger also briefly addressed Cindy Lee Garcia v. Google centered on the shooting of the movie “Innocence of Muslims,”in which the actress was tricked into being part of an anti-Muslim film in which her dialogue was over-dubbed. The 9th Circuit Court found she had an “independent copyright interest in her performance, and the filmmaker did not own that interest as a work for hire.”

Google appealed and the 9th Circuit held a hearing. “We’ll see where this case goes,” said Burger.

The FCC has been “busy bees,” said Burger, who emphasized activities regarding net neutrality, “the idea that all traffic is transmitted at the same speed with the same reliability.”

In Verizon v. FCC, the DC Circuit Court overturned the FCC Rule to compel broadband providers to treat all Internet traffic equally. In February 2014, the FCC asked for feedback on how to “best protect and promote an open Internet” and received a record-breaking 3.7 million comments.

In a February 4th statement, FCC Chairman Tom Wheeler reclassified ISPs as Title II common carriers, banning paid prioritization and blocking and throttling of “lawful content and services.” The Commission vote will be on February 26th.

“The real problem is that there really isn’t competitive broadband,” said Burger. “Only 22.9 percent of potential subscribers have access to two broadband competitors. My concern is that you start a regulatory body going and you can’t stop it.”

With regard to spectrum auctions, said Burger, “the AWS-3 auction blew everyone out of the water.” The reserve was $11 billion and the proceeds were $41.329 billion; among the bidders were AT&T, Verizon, T-Mobile and Dish Network. Reportedly, there is now larger broadcaster interest in participating. The TV spectrum auction has been pushed back to early 2016; the FCC, whose goal is 84 MHz, expects opening bids of $39 billion.

Burger also briefly covered Unmanned Aircraft Systems (UAS), otherwise known as drones. He reported that Warner Bros. was the first to use a drone shot on the set of the TV show “The Mentalist.”


“Congress ordered the FAA to safely integrate UAS into national airspace,” he said. “The FAA is expecting tens of thousands of comments but the final rule won’t come out until 2016 or 2017.”

In the interim, a potential drone user must have FAA authorization for commercial operations, by filing for an FAA 333 exemption. The FAA has received 250 applications since June and 24 have been approved.

The conditions are that the drone must operate below 400 feet and only during daylight as well as have visual sight by a pilot-in-command (who has a private pilot certificate and 3rd class medical certificate).

Proof of Hollywood’s interest in drones, said Burger is that the announcement of the first exemptions was made jointly by DOT Secretary Anthony Fox, FAA Administrator Michael Huerta and MPAA CEO Chris Dodd.

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