HPA Tech Retreat: Washington Update During This ‘Silly Season’

In another annual HPA Tech Retreat panel, Jim Burger, a copyright attorney with Thompson Coburn in Washington, D.C. gave his “Washington Update.” “We’re talking about Congress and the Silly Season, and it’s crazy,” said Burger, who said he would touch on intellectual property litigation on the copyright side; the FCC and communications; net neutrality; and unlocking the set-top box among other topics. Burger noted that the House Judiciary Committee has held over 20 copyright hearings this year.

“And I’m not sure what the bottom line is,” he admitted. “ I can’t tell any basis for change, but they keep holding meetings.” Noting that the Copyright Office reports to the Library of Congress, which reports to Congress, Burger said that the final triennial DMCA [Digital Millennium Copyright Act] exemptions were promulgated, which, for example, will allow professors to “cut and paste media” so they can teach film classes.

The Copyright Office will also do a study on the Internet of Things. “Is it right that an automotive company encodes software that you need to repair it?” asked Burger. “Many, many devices are headed towards more computer intelligence, and, if this sticks, only the manufacturers can get into the guts of the software — there will be competition problems.”


He brought up his favorite copyright litigation case of the crested macaque that took a selfie with a camera that a photographer had placed to record wildlife. The photographer published the selfie and PETA sued on behalf of the monkey, but the judge ruled that the monkey is not capable of copyright ownership. Bottom line: An animal cannot hold a copyright.

Burger also discussed the rather odd situation of the Fox television stations vs. FilmOn. Fox sued FilmOn to stop the transmission of TV programs and, on the West Coast, the judge said that FilmOn is actually entitled to a compulsory license to broadcast content, contrary to the 2nd Circuit’s decision. But he preserved the status quo’s injunction against FilmOn until the 9th Circuit Court decides.

Fox TV’s suit against FilmOn in a Washington, D.C. court ended with a completely opposite result: the judge upheld the injunction against FilmOn, saying the company is not entitled to compulsory license to broadcast content. Meanwhile, even after the Aereo decision, FilmOn kept broadcasting. This morning, the 2nd Circuit court found FilmOn in contempt.

Burger updated the Dish Hopper case, noting that the 9th Circuit Court agreed with Judge Gee that Fox failed to demonstrate a likelihood of success on infringement claims. “The judge said the consumer is making the recordings, not Hopper — so you have to go after the consumer,” said Burger. “When the Aereo ruling came out, Judge Gee found that Dish had no volitional conduct. The Plaintiffs (Fox) settled and the Hopper will be allowed to go ahead.”

With regard to net neutrality, Burger reports that 11 petitioners have filed in D.C. Circuit Court for review. “Among the items at issue is whether the FCC lawfully reclassified broadband Internet access as a telecom service; lawfully reclassified mobile broadband Internet access as a commercial mobile service; and lawfully applied Title II regulation to Internet interconnection arrangements.”

“The oral argument was held December 4 and, if we’re lucky, we’ll get a decision by late spring/early summer,” he said. “But the odds of Congress passing anything is amazing.”

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