Computer and tech companies have told a federal court that it should uphold a California district court ruling that vicaroius liability requires a causal connection between the infringement and a direct financial benefit to the defendant.

That is according to an amicus brief filed by the Internet Infrastructure Coalition, the Internet Association, the Computer & Communications Industry Association, and the Consumer Technology Association.

The case involved adult content provider Perfect 10, which asked the appeals court to reverse the decision in favor of Giganews in a case of alleged copyright infringement on Giganews' Usenet electronic bulletin board service. At the time of the lower court decision in January, Giganews called it a landmark ruling.

According to the computer companies, content creators' support for eliminating that causal link "would have little effect on cases brought against pirates, but would severely and unnecessarily threaten innovation and investment in lawful online services and connected devices."

They said that would expand the vicarious liability standard for copyright infringement "unprecedented in scope" and resulting in "limitless and ruinous statutory damages liability "for technology innovators based on inconsequential infringements by even a tiny minority of users, whether or not the service or device provider was aware of the infringement or had the capacity."

They also said that in some cases statutory damages for vicarious liability may be appropriate, but not divorced from the causal connection between infringement and ill-gotten financial gains.

On the other side of the argument are the Motion Picture Association of America and Recording Industry Association of America. “The court, at a minimum, should amend its opinion to make clear that where the availability of a particular type of infringing content, such as movies or music, acts as a draw for a defendant’s users, and where the defendant has but does not exercise the right and ability to stop or limit that infringement, the defendant is vicariously liable for infringement of works of that type," MPAA said in its own amicus brief.

The Motion Picture Association of America has named Matt Bennett EVP for corporate communications.

he is replacing Laura Nichols, who joined National Geographic Partners in February as SVP and chief communications officer.

Bennett comes from public relations firm Racepoint Global, where he had headed up public affairs. Previous posts included PhRMA and GolinHarris.

Matt’s extensive experience helping associations and corporations communicate their messages to policymakers, influencers and key constituencies will help our organization effectively advance the mission and priorities of our member studios,” said MPAA Chairman Senator Chris Dodd in a statement.

President Obama gave his take on the State of the Union last week, which included a shout out for network neutrality, trade deals and innovation, all on the media world’s agenda as well.

The Wire asked some other presidents (and one chairman) for their quick take on the State of the Media Union (SOTMU).

That would be the presidents of some major media trade associations around the nation’s capital.

Disruptive incentive auctions, Title II net-neutrality rules and online piracy notwithstanding, like President Obama, they were unanimous in their assessments that their respective industries are strong, if sometimes challenged by the Washington powers that be. Here are highlights:

Michael Powell, president, National Cable & Telecommunications Association: “As technology is transforming consumer experiences and expectations, the cable industry faces challenges, but most of them provide exciting opportunities to remake the industry for the future. That transformation is now underway. The continuing Internet revolution is defining the future for both operators and programmers. By driving towards widely available Gigabit Internet speeds by 2017 and deploying cutting-edge Wi-Fi connectivity, America’s Internet is being accelerated and untethered. And consumers are being liberated from their living rooms by programming that is being delivered by apps and made available on every screen for viewing anytime and anywhere.

“We are also committed to improved customer service that meets the needs of today’s tech savvy consumers. By delivering on the promise of this better future, cable will remain relevant and strong.”

Matt Polka, president, American Cable Association: “ACA members see broadband as their future and are focused on at least two issues. One is stressing to Washington policymakers the need to ensure that the independent cable operators can continue to invest in their networks to satisfy surging consumer demand unfettered by burdensome regulations. The Federal Communications Commission’s decision last year to impose Title II regulation on Internet Service Providers was a serious setback, particularly for smaller ISPs that sought, but did not receive, legitimate exemptions from the most onerous features of the FCC’s new common-carrier requirements.

“The other is the ‘cable-ization or content-ization’ of broadband — the concern that powerful edge-content providers (I won’t mention any names, but you probably know who I mean) will withhold their services from consumers until ISPs have signed contracts requiring the payment of per-broadband subscriber fees at the wholesale level. This would be the broken, inflexible and costly cable business model grafted onto the Internet, happening at a time when the big video bundle is already crumbling. Good heavens, that’s the last thing consumers want or need, and ACA is hopeful that Washington policymakers will defend consumers forced to pay for online services they never use.”

Gordon Smith, president, National Association of Broadcasters: "Broadcasters have embraced changes in viewer attitudes and technologies to strengthen our indispensable role in the lives of the American people. Broadcast programming better reflects the multiculturalism of America, and we are employing a greater diversity of show creators, cast and crew members who were previously underrepresented in our industry. Local and network broadcasters are collaborating on new multimedia platforms to give viewers access to local and primetime programming wherever and whenever they want. Ratings are up for local and network news broadcasts, and we remain the definitive place for emergency information when other communications systems crash under capacity constraints. Marquee sporting events are now migrating back to broadcast TV, such as the British Open, professional boxing, and NBA and MLB games.

"The bottom line: Even in an era of unprecedented media fragmentation, broadcasters remain the King Kong of content and have a bright future ahead of us."

Chris Dodd, chairman, Motion Picture Association of America: “On the one hand, it’s been a phenomenal year at the box office, and the cinema experience endures as a popular form of entertainment that can bring people together. At the same time, audiences now have an extraordinary number of ways to access movies and TV shows on digital platforms in their home or on the go. The state of our industry is built on the fact that creativity and consumer choice are flourishing. It’s vital that we protect the core principles of copyright and free expression that have allowed this vibrant sector of our nation’s economy to thrive.”

— John Eggerton

History’s a Lot to Chew on for ‘Black Sails’s’ Stevenson

Ray Stevenson, who plays Blackbeard in the upcoming third season of Starz pirate drama Black Sails, is Volstagg in the “Thor” movies; was Stephen Hopkins in National Geographic Channel’s Mayflower miniseries Saints & Strangers; and turned the republic upside down as legionnaire Titus Pullo in HBO’s Rome.

The Wire wondered if he really loves playing historical/mythical characters.

In a phone chat from his home in sunny Ibiza, he turned the question around a bit. In a production like Black Sails or Saints & Strangers, where there’s “incredible attention to detail,” he said, then “there’s this richness in everything” that’s very appealing.

Also, he noted, Pullo was part of “the most advanced technological nation on Earth,” and Blackbeard commanded fullrigged naval ships that were marvels of their age, brilliantly executed in the “extremely realistic” Starz production.

“I do love the fact when it’s done well that you can just mine everyone from the props department, the armorers, the set designers, the costume designers,” he said. “I chew it up.”

Blackbeard is a newcomer to Black Sails but not to Nassau, The Bahamas, where the circa early-1700s series is fictionally based (it’s filmed in South Africa).

Edward Teach has returned, after eight years away, to try to reunite with former protégé Capt. Charles Vane (Zach McGowan) and go on to lead a pirate fleet together.

His initial approach, at least, is relatively quiet.

“You’ve got a character who is by nature larger than life and outside of the norm, but you don’t want it to put a crack into the established mise en scene of the series,” Stevenson explained. “You want it to be part of it and enhance it and challenge it, and create much more interesting situations.”

The Wire has no doubt Stephenson will stir things up in that powerful cast, led by Toby Stephens as Capt. Flint, when Black Sails returns Saturday, Jan. 23, at 9 p.m. on Starz.
— Kent Gibbons

The Netflix-original Marvel series Daredevil and Jessica Jones, the latter debuting on the streaming service Friday (Nov. 20), have generated tens of millions of dollars to the economy of New York, where both series are shot, according to the Motion Picture Association of America.

 The MPAA said the two productions account for 3,000 jobs and business for 900 vendors in the state.

The organization wanted to spotlight two points in showcasing that impact: (1) the value of production to local economies and producers, and (2) programmers' "embrace" of over-the-top video distribution platforms.

 The FCC has made spurring over-the-top access to programming a policy goal under FCC chairman Tom Wheeler.

The MPAA said the Marvel-Netflix pact of four series and two mini-series, including a second season of Daredevil already in the works, represents the largest TV or film production commitment in the state's history.

 Dan Buckley, president of Marvel Television, credited the state's "film-friendly" environment, which includes tax incentives.

Daredevil and Jessica Jones are produced by Marvel in association with ABC Studios.

"People want to film in New York City," Cynthia Lopez, former commissioner of New York's Office of Media and Entertainment, told Multichannel News last year in advance of NewBay Media's NYC Television Week. "They want the atmosphere and the energy, and they know the infrastructure of crews, actors and stage space that we have here."

The National Association of Broadcasters and the Motion Picture Association of America (along with Digital Context Next) have teamed up to tell the FCC it needs to seek public comment on its plan for how it treats access to confidential information submitted to the agency.

They said the FCC should not be expanding access to sensitive information at all, but if it is, it should open a separate proceeding.

That came in an Aug. 12 letter to the FCC as the commissioners consider protective orders for the handling of sensitive company information related to the proposed Charter-Time Warner Cable merger that also responds to a court request that the commission better justify the regime for allowing hundreds of third parties, including lawyers for competitors, access to sensitive program contract information. Those orders were proposed for earlier merger reviews of Comcast-TWC and AT&T-DirecTV.

FCC chairman Tom Wheeler circulated the Charter-TWC protective order for a vote rather that put it out for comment.

"While the associations do not object to the commission’s review of sensitive information, we see no persuasive reason why third parties in a highly competitive communications marketplace need access to confidential materials, particularly confidential information pertaining to entities who may not be among the merging parties," the NAB and MPAA said.

"[I]n prior mergers the commission has successfully reviewed the most sensitive materials at the Department of Justice, rather than placing those materials in the public record where they would be made available to potentially large numbers of third parties that sign the applicable protective order acknowledgement," they added. "There appears no reason for the commission to alter its previous procedures and third-party disclosure policies to review the proposed Charter-TWC merger."

Moreover, they said, if the agency is going to change its procedures, "then it should request public comment on its proposals."

"Reviewing courts have not hesitated to overturn agency orders where the agency did not provide the requisite meaningful opportunity for comment," they wrote.

Programmers had led the successful court challenge of the earlier protective orders, but the U.S. Court of Appeals for the D.C. Circuit had remanded the orders and given the FCC the opportunity to better defend them, which the FCC apparently is now trying to do.

According to FCC sources and the Republican commissioners, the new protective order they have been asked to vote on ranges beyond even merger reviews to how the FCC handles sensitive information generally.

Republican commissioners Ajit Pai and Michael O'Rielly have said the FCC should put the protective orders item out for public comment and go ahead and separately start the clock on the Charter-TWC merger review so that a public comment cycle on that deal can be set. But Wheeler has said it does not make sense to do that until the protective orders are set for information that could inform how parties comment on the deal.

So far, Wheeler has voted the item as has commissioner Mignon Clyburn. The Republicans have signaled they want it put out for comment, which would appear to leave Democratic commissioner Jessica Rosenworcel holding the high card. Her office had not returned a call at press time for comment on whether she had voted the item and, if not, what issues she had.

Michael O'Leary, senior EVP for global public policy and external affairs, for the Motion Picture Association of America, will be leaving that post at the end of the month.

O'Leary, who had been with MPAA since 2005, will remain an advisor to MPAA during the transition to a new exec to head up its global policy efforts and Washington advocacy team. He was also a member of the board.

No word on a replacement and O'Leary signaled he will take some time before deciding his next move. "“I want to thank Michael for his tireless commitment to this Association and the creative community and for his leadership here for so many years,” said MPAA Chairman  Senator Chris Dodd in a statement.

O'Leary had been EVP, government affairs, before being tapped by Dodd in 2011 to oversee all international, federal and state operations, as well as technology and research. His resume includes counsel to then-senator, now Vice President, Joe Biden, and counsel to the Subcommittee on the Constitution.

WASHINGTON — The House Judiciary Committee is pushing to define the “first sale” exemption to copyright protections and how and whether the exemption applies to digital distribution of TV, movies, books and other copyrighted content.

The first-sale doctrine allows the owner of a legal copy of a copyrighted work to sell it or give it away, but not to make another copy of it.

Currently that doctrine covers physical copies, like books and DVDs, and thus protects Netflix’s DVD mailing business, libraries and bookstores. But at issue is how, and whether, the doctrine applies to digital copies that can be sent anywhere and do not degrade.

“Expectations in the digital context are still developing,” House Judiciary Committee chairman Bob Goodlatte (R-Va.) said in his opening statement for a hearing in New York last week. “Consumers are also accustomed to files such as apps, songs and movies being accessible on any device on a consumer’s home network at one purchase price without having to pay for multiple copies.”

Fair-use advocates argue that the doctrine applies and the law needs to be updated for the digital age. Studios and others, including the U.S. Copyright Office, have said physical objects remain a defining, and limiting, factor in the doctrine, which dates to the reselling of books around the turn of the century.

The Motion Picture Association of America said after the hearing last week that to establish a digital first-sale doctrine would upset the business model that in 2013 saw more than 100 legitimate online video services provide 56 billion TV show episodes in a TV Everywhere model that allows access on various devices.

Allowing a digital first-sale doctrine, the MPAA argued, could essentially supplant the original market. It could also discourage content creation and innovation, Randolph May, president of the Free State Foundation think tank, warned in a blog post about the hearing. He said the doctrine cannot simply be grafted onto the digital world.

“The first-sale doctrine applied to digital content risks stifl ing innovation and investment in new copyrightable works because it is so relatively easy to replicate and distribute exact copies of an original,” May said. “This ease of copying means that the price of the ‘first sale’ work effectively would become the market price for the ‘used’ work [like pricing a used car at new-car prices], in all likelihood supplanting the original market. Obviously, the incentive for creation of new works is diminished under this scenario.” The MPAA pointed out that the industry is moving to a licensing model for accessing digital video content anyway, which is not covered by the first sale doctrine; fair-use advocates argue that model is an attempt to circumvent a potential digital first-sale doctrine.

“Increasingly, more types of media are being sold digitally and can easily be offered to consumers with exactly this sort of language buried in a click-through, which will claim that, despite the fact that [a consumer] clicked on a bright yellow ‘buy’ button, [she] was only renting her ebook, or album or TV episode,” said witness Sherwin Siy, vice president of public affairs for Public Knowledge.