Volume V / Issue 6

Hello UCI!

We’re here to welcome everyone back from a hopefully relaxing spring reading week with a special edition of the Voice dedicated entirely to the Entertainment Law Society’s upcoming symposium on the nexus between entertainment and technology, aptly titled “Bridging a Troubled Stream: Confronting Legal Issues at the Nexus of Entertainment and Technology.” The articles in this issue approach various topics regarding technology and how it interacts with entertainment and the law in new (and many times unforeseen) ways. The symposium will be on Saturday, March 28, 2015 from 9:00 AM to 4:30 PM in EDU 1111. A detailed schedule and registration information can be found on the event page[1] and attorneys can receive 5.25 hours of MCLE Credit for attending.

We would like to thanks ELS for making this issue of the Voice possible and we want wish everyone at UCI Law the best of luck for the remainder of the semester.

Jeremy Cowan and Anna Rea

Executive Editors

[1] http://www.law.uci.edu/events/student-run/els-2015/

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The Evolution of Entertainment Consumption and Why It Matters

The internet has fundamentally changed the way that the world receives media in all of its forms. With the growth of the internet, the public has unprecedented access to digital information. Whereas media was once restricted to analog formats and airwaves, digital distribution of media is now ubiquitous. READ MORE.

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Reaction to FCC Ruling that the Internet is a “Public Utility”

In 2010, the Federal Communications Commission attempted to enact a policy where broadband would be free of data throttling, blocked pages, and payment for faster access to particular websites. However, in Verizon Communications Inc. v. FCC (2014), the D.C. Circuit Court of Appeals held that the FCC could not enact its policy in its entirety as certain portions could only be applied to common carriers. Because the FCC previously classified Broadband under Title I of the Communications Act of 1934, it had forfeited the right to regulate broadband as though it were a common carrier. Since then, the FCC looked at ways to enforce net neutrality and on February 26, 2015, voted 3-2 to classify broadband under Title II of the Telecommunications Act of 1996, which classifies its services as public utilities. The FCC claimed that it now institutes “strong, sustainable” rules bolstering net neutrality. READ MORE.

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Net Neutrality: Is Municipal Broadband the Solution?

Recently, on February 26, 2015, the F.C.C. voted 3-2 across party lines to regulate broadband internet as a public utility under Title II of the Communications Act. Part of the ruling meant that internet service providers are no longer allowed to slow down or speed up access to web services in exchange for payment. In addition however, the FCC ruled that cities were allowed to expand their existing broadband services, preempting state laws in Tennessee and North Carolina that restricted cities to providing municipal broadband services only within certain designated market areas. READ MORE.

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Aereo

In 2014, the Supreme Court held that Aereo violated the Copyright Act of 1976 by transmitting broadcasts to subscribers through a subscription-based service over the Internet where Aereo dedicated one antenna to each user for a show that a user would want to watch virtually live. The decision has been criticized because of the effects on emerging technologies, particularly cloud storage. The majority in Aereo assured the public that the decision would not affect cloud storage, but Justice Scalia was sceptical of the assurance in his decision. The Court held that Aereo transmitted television programs online “at about the same time” as the programs were shown on broadcast television, and by doing so, the company violated 17 U.S.C. § 106(4). § 106(4) provides the copyright owner the exclusive privilege to “perform the copyrighted work publicly.” READ MORE.

 

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Rate Courts: An Outdated Institution or a Necessary Force for Fair Licensing?

Performance Rights Organizations (PROs) play an important function in the world of copyright. Public performance is one of the many rights a copyright holder owns in copyrightable works, and as such, if one wants to publicly perform a copyrighted work, one must obtain a license. The Association of Songwriters, Composers, Authors, and Publishers (ASACP) and Broadcast Music, Inc. (BMI) are the two largest PROs in the nation. According to some accounts, they license approximately 90% of music publicly performed in most venues. Due to this extreme market concentration, these organizations have been under antitrust regulation under the Sherman Act, and are subject to Consent Decrees specific to each organization. While the terms of the different consent decrees are not harmonized, they contain many of the same regulatory provisions designed to ensure a competitive music licensing marketplace. One such mechanism is what is commonly referred to as the “Rate Court.” When negotiations with a licensee are at an impasse, ASCAP and BMI or a licensee may petition the respective Rate Courts when to determine a “reasonable” rate for the license. READ MORE.

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Partial Licensing or Total Monopoly? The Efforts to Adapt Antitrust Law in Music to a Digital World

The Department of Justice has agreed to review the consent decrees that govern the music royalty market and consider modifications to update the decrees to reflect the digital age. Pandora and other digital music stations argue that the ASCAP/BMI consent decrees remain important to ensure a competitive marketplace; music publishers and the publishing rights organizations (“PROs”) counter that the decrees do not allow them to receive fair value for their digital catalog. Caught amidst the battle between two powerful industries are music creators and consumers, who wish to see their own interests protected. Unfortunately, the complicated nature of the consent decrees make predicting the effects of any of the proposed modifications difficult, if not impossible. READ MORE.