Main

Barry Skidelsky Archives

November 18, 2009

Second Circuit Finds Webcaster Entitled to Statutory Copyright License under DMCA

By Barry Skidelsky, Esq. (co-chair of both the NYSBA/EASL/TV-Radio Committee and the FCBA's New York Chapter; contact: bskidelsky@mindspring.com or 212-832-4800).

On August 21, 2009, in Arista Records v. Launch Media (No. 07-2576-cv), a case of first impression for the federal appellate courts, the U.S. Court of Appeals for the Second Circuit upheld an SDNY decision below based on a jury verdict that found the online music service (now owned by Yahoo), which customizes its music offerings to the tastes of individual listeners, was not sufficiently "interactive" within the meaning of the Digital Millennium Copyright Act (DMCA) so as to deny Launchcast the opportunity to avail itself of a DMCA statutory copyright license. The distinction is crucial, because if Arista and the other record label plaintiffs (several of whom did not join in the appeal) had prevailed on their argument that Launchcast was an "interactive service" under 17 U.S.C. § 114(j)(7) (e.g.: involving an on-request transmission of a particular sound recording or a program specifically created for the recipient), Launchcast would have been required to negotiate with and pay each copyright holder of every song it wanted to use -- obviously a much more burdensome and expensive approach. The court examined in detail the legislative history of the sound recording performance right, and applied its analysis to the particular facts of this case, focusing on the methodology employed by Launchcast and the degree of control its end users are able to exert in selecting the music streamed. Without elaborating those details here, the court concluded that this Internet radio service is not a substitute for the purchase of recorded music, and that Launchcast listeners "do not even enjoy the limited predictability that once graced the AM airwaves on weekends in America when special requests represented love-struck adolescents' attempts to communicate their feelings to that special friend." One must keep in mind that this decision, which narrowly construes this particular performance right, is not binding on other circuits, and with different facts this court might have reached a different conclusion.

February 8, 2010

TV Writers Settle Decade-Long Age Discrimination Litigation

By Barry Skidelsky, Esq. (co-chair NYSBA/EASL/TV-Radio Committee; contact: bskidelsky@mindspring.com or 212-832-4800).

On January 22, 2010, 17 television networks and production studios and 7 talent agencies settled 19 of 23 separate class actions filed in Los Angeles Superior Court, based on alleged intentional and unintentional age discrimination in the selection, employment and representation of television writers. As three companion cases had previously settled, Creative Artists Agency (CAA) is left as the lone holdout.

The procedural history of the TV writers’ cases (which is set forth in Alch et al v. Time Warner Entertainment et al, 122 Cal. App. 4th 339 (2004), subsequent history omitted), began in 2000 as a federal court action under applicable federal law, including the Age Discrimination in Employment Act (which generally protects workers aged 40 or more). That action was dismissed with leave to amend in 2002. Rather than pursue their federal case, Plaintiffs then instead filed 23 separate complaints in California state court, based on state law statutes involving fair employment, civil rights and unfair competition. The parties litigated aggressively over 10 years in the trial courts before five different judges, during which period 20 of the named plaintiffs died and five different appeals ensued, two of which reached the California Supreme Court (primarily involving class certification and discovery matters). Although the past decade saw thousands of pages of documents produced and thousands of interrogatories answered, discovery was still at an incipient stage and the class not yet certified. Thus, with final resolution still years away, the parties agreed (without any admission of liability by defendants) that it made sense to now bring these protracted cases to a close and obtain preliminary approval of the settlement.

The amount of the settlement is $70 million, the largest-ever settlement in the history of age discrimination litigation. Of that sum (two-thirds of which is to be funded by insurance carriers), about $25 million is expected to be paid to plaintiffs’ counsel; and, about $2.5 million is to be set aside into a so-called Fund for the Future to be created (which intends, inter alia, to make loans and grants to TV writers). The remainder of the record-breaking settlement sum is to be paid pursuant to a single formula to class members, which includes both professional and aspiring writers, subject to withholding taxes and union pension or health and welfare deductions as may be appropriate (interestingly, the Writers Guild was not a party to this litigation).

Writers who believe they were unlawfully denied a TV writing opportunity during the class period (from October 22, 1996 to January 22, 2010) and want a piece of this pie must file a claim form (available at www.tvwriterssettlementadmin.com) no later than April 13, 2010. A final approval hearing of the TV writers’ settlement is scheduled for May 5, 2010, in L.A. Superior Court.

It should also be noted that the United States Equal Employment Opportunity Commission (EEOC) has reported a significant uptick in age discrimination complaints. The latest figures show that for the 2008 fiscal year, 24,582 charges of age discrimination were filed with the agency, almost a 29% increase over the prior year, and by far the largest number of such charges filed in the past 10 years. No employer, not even a law firm, is immune. In fact, on January 28, 2010, the EEOC filed an age discrimination complaint in federal court in Manhattan (SDNY) against the nationally known law firm of Kelly Drye and Warren, the details of this action being beyond the scope of this article. Suffice it to say that, without doubt, the difficult economic circumstances we all face today is having a disparate impact (no pun intended) on baby boomers and other older workers; and, all employers (including law firms) would be well advised to review and improve their hiring and other employment practices.

June 28, 2010

YouTube Wins Landmark Copyright Case

By Barry Skidelsky, Esq.

In a 30 page decision dated June 23, 2010 (Viacom et al v. You Tube et al, CV Civ. 2013), Judge Louis Stanton of the United States District Court in the Southern District of New York granted summary judgment sought by defendant Google-owed YouTube, dismissing before trial copyright infringement claims brought by plaintiff Viacom seeking more than $1 billion in damages in connection with video clips culled from the media giant’s cable channels such as Comedy Central and MTV.

The opinion and order focused on whether the defendants were entitled to so-called “safe harbor” protections found at 17 U.S.C. § 512(c) in the Digital Millennium Copyright Act (DMCA), which 12 year-old statute provides protection against copyright infringement claims brought against various types of on-line providers who qualify.

To qualify for this protection, the DMCA in part requires that service providers designate an agent to receive statutorily defined notices of alleged copyright infringement, as well as establish and follow certain notice and take-down policies. After a lengthy review of the DMCA’s legislative history, the court found that the safe-harbor did apply here.

A key issue involved whether the defendants had either actual knowledge or a form of constructive knowledge of copyright infringing activity or material, as specified in the statute. The court interpreted this to require “... knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of prevalence of such activity or material is not enough.” The court went on to find that YouTube lacked the requisite specific knowledge that would disallow the safe harbor.

Reportedly, about 24 hours of new video is uploaded by users to YouTube every minute, which the court found YouTube had no obligation to affirmatively monitor or police for possible copyright infringement. That burden more properly lies with copyright holders. The court also noted that Viacom had spent several months compiling a list of 100,000 videos that it attached to the single takedown notice it sent YouTube in February of 2007; and, that by the next business day, YouTube had removed virtually all of them.

To some, the plaintiff’s case is seen as one of sour grapes, given that Viacom tried to buy YouTube but was out-bid by Google -- which successfully purchased the enormously popular video web-site in 2006 for $1.76 billion, likely motivated in part by the DMCA’s safe harbor provisions. To others, this case is seen as a victory for creative expression and maintenance of the internet as both an outlet for expression and a participatory medium.

Barry Skidelsky co-chairs EASL’s TV & Radio Committee. A former broadcaster and musician, Barry previously served as General Counsel to an Internet Service Provider where his work in part involved the DMCA safe-harbor issues raised in this case. Now in private practice, Barry offers a broad range of legal and business services to those involved directly and indirectly with traditional and new media, telecommunications, technology and entertainment. Contact: bskidelskly@mindspring.com or 212-832-4800.

November 1, 2010

Copyright Office Notice of Inquiry

By Barry Skidelsky

On October 29th the Copyright Office released a Notice of Inquiry (NOI), asking whether federal protection should be extended to sound recordings made prior to February 15, 1972 (when sound recordings were apparently first protected under federal law). The following link should take you to the NOI: http://www.copyright.gov/docs/sound/FRDocument-2010-4-pre1972-sr.pdf.

One of the many complicated issues raised by the NOI is how a change in the law could affect royalties paid by or otherwise impact webcasters, satellite radio and other digital music providers under the statutory license of Copyright Act section 114 (regarding digital transmissions of sound recordings) -- although many such providers have not excluded pre-1972 recordings from royalty payments based on any possible exception, as that possibility has not been widely publicized.

The comments filed in this proceeding will help inform the record that will be created in connection with the Copyright Office making a recommendation to Congress about any suggested changes in the law. Comments are due on December 20th, with replies 30 days later.

October 5, 2015

Music Licensing Update



By Barry Skidelsky

On September 22, 2015, the Department of Justice requested further comments in connection with possible ASCAP and BMI consent decree reform (http://www.justice.gov/atr/antitrust-consent-decree-review-ascap-and-bmi-2015). On that same day, the Congressional Research Service released its report entitled "Copyright Licensing in Music Distribution, Reproduction and Public Performance" (https://www.fas.org/sgp/crs/misc/RL33631.pdf).

Both provide a useful outline of key concerns in music licensing law, and suggest where that piece of law might fit into the larger puzzle known as copyright reform. Meanwhile; Congress, the courts, and various stakeholders in the music business continue to struggle to apply existing copyright law to new and emerging technologies, ever hopeful that our country's historically balkanized approach to music licensing and other copyright issues may be modernized and simplified.

An experienced attorney and consultant, Barry is founder-owner of a nationally prominent private practice focused on representing and counseling individuals and entities directly or indirectly involved with traditional, online and mobile media, entertainment, advertising, marketing, telecommunications and technology, both domestically and abroad. Barry, a Berklee trained musician and former radio broadcaster, co-chairs the NYSBA EASL Television and Radio Committee. He also practicesinter alia before the Federal Communications Commission in Washington, D.C.
Contact: bskidelsky@mindspsring.com or 212-832-4800.

February 12, 2016

The Copyright Royalty Board Releases Decision on Webcasting Royalties for 2016-2020 (Webcasting IV)

By Barry Skidelsky, Esq.

The Copyright Royalty Board (CRB) recently released its full decision (http://www.loc.gov/crb/web-iv/web-iv-determination.pdf) concerning royalites that webcasters must pay to Sound Exchange for the public performance of sound recordings that are digitally distributed over the Internet and to mobile devices.

For most commercial webcasters who stream (including FCC licensed broadcasters), the royalty rate actually dropped, which may be the first time in any CRB proceeding where rates went down as the result of a CRB decision. The CRB essentially left in place the rates for non-commercial webcasters. The subscription rates for "pure-play" webcasters (such as Pandora) also decreased, although their non-subscription rates saw a modest rise. All rates are subject to periodic cost-of-living increases.

Most royalty terms remain unchanged from prior years, including requirements for payment of minimum fees at the end of each January in addition to payment of monthly fees. Sound Exchange audits must still be performed by a CPA, a requirement that the music licensing collective had sought to eliminate.

Although prior settlements allowed small commercial webcasters to avoid certain regulatory burdens and pay based on a percentage of their revenue (rather then be subject to the more complicated per-performance formulas generally used as part of the United State's balkanized approach to music copyright licensing), there were no small commercial webcasters who litigated this proceeding (known as Webcasting IV), which obviously precludes their direct participation in any possible appeal. It remains to be seen what actions, if any, Sound Exchange and/or the other players may take next in the wake of this CRB decision.

A Berklee-trained musician and former radio broadcaster, Barry is a member of EASL's Executive Committee, and he Co-Chairs the Section's Television & Radio Committee. A former co-chair of the NY chapter of the Federal Communications Bar Association (whose members practice before the FCC in Washington DC), Barry's practice focuses on communications, entertainment and technology. (bskidelsky@mindspring.com or 212-832-4800)

September 29, 2016

Summary of Today's Meeting of the Commissioners of the Federal Communications Commission

By Barry Skidelsky, Esq.

Barry is a NYC based attorney and consultant in private practice, handling diverse regulatory, litigation and transactional matters, principally for clients (such as lenders, owners, management and talent) and other lawyers who are involved directly or indirectly with communications, media, entertainment and technology. A member of the NYSBA EASL Section Executive Committee, Barry co-chairs its Television-Radio Committee, and he is former chair of the NY chapter of the Federal Communications Bar Association (whose members in part practice before the FCC in Washington DC). Barry was also a former General Counsel for several private and public companies in the above mentioned fields, and can be reached at (212) 832-4800 or bskidelsky@mindspring.com.

At this morning's meeting of the Commissioners of the Federal Communications Commission (FCC), the FCC: (i) voted unanimously to adopt a Report and Order intended to foster increased foreign ownership of and foreign investment in U.S. broadcast stations; and, (ii) with two dissents along party lines, as frequently occurs, voted to adopt a Notice of Proposed Rule Making (NPRM) intended to promote the growth of independent video programming.

Foreign Ownership of U.S. Broadcast Stations (FCC GN Docket No. 15-236)

Citing the outdated original policy underpinnings of avoiding interference with ship to shore radio communications during war time, the FCC downplayed those national security concerns and noted the current inconsistency between FCC regulations that on the one hand allow foreign citizens to own a nation-wide mobile wireless network in the United States, but on the other hand restrict foreign ownership of merely one small rural American radio station (an implied reference to Pandora's efforts to buy a small FM radio station in South Dakota, in an attempt to leverage a music copyright licensing advantage).

Accordingly, the FCC today unanimously voted to extend to broadcasters a liberalized and streamlined foreign ownership approval process, akin to that adopted about three years ago for common carriers. Stated goals were to reduce regulatory burdens and to foster or improve access to capital, which now affords foreign lenders and investors an unprecedented opportunity to be (or become more) involved with inter alia U.S. radio and television stations licensed by the FCC.

Diverse and Independent Sources of Video Programming (FCC MB Docket No. 16-41)

In addition, a majority of the FCC Commissioners voted to adopt an NPRM intended to benefit video programmers -- who are independent of major studios and multichannel video program distributors (MVPDs), such as cable and satellite system operators -- in connection with carriage contract negotiations between the video programmers and MVPDs.

Essentially, the FCC proposes to ban certain TV carriage contract clauses that the Commission believes unfairly favor MVPDs, such as most favored nations (MFN) and alternative distribution media (ADM) clauses that MVPDs have insisted on being included in deals they negotiate with independent programmers. MVPD bargaining power generally disfavors the content owners.

Although both MVPDs and independent video programmers or content owners (as well as other interested persons or entities) will have an opportunity to file formal comments with the FCC about this matter after the agency releases the text of its NPRM (as usual, editorial privileges were reserved at today's meeting), the lack of authority by the FCC to meddle in private TV contract negotiations will surely be raised.

Video Navigation Choices and Devices (FCC MB Docket 16-42; CS Docket No. 97-80)

Lastly, the also controversial and so-called TV set top box (STB) item was dropped from today's FCC agenda at the eleventh hour in the wake of opposition from content and copyright owners, as well as due to the apparent failure of a majority of the FCC Commissioners to reach consensus on this item.

The STB item remains in circulation for further consideration at the FCC behind closed doors, with any opportunity for further public comment uncertain as of this writing.

Ostensibly, the FCC wants to give consumers competitive alternatives to paying monthly STB rental fees to their cable or satellite providers. However, the politics, issues and other realities behind this item are much more complex, and they are far beyond the scope of this brief summary of today's FCC actions.

Conclusion

As always, all of us who are involved directly or indirectly with the ever converging fields of communications, media, entertainment and technology, are best advised to stay informed -- and, whenever possible, to actively participate in rule-makings and otherwise engage in advocacy -- to help shape the federal government's involvement in the related creative and business realms, and for the benefit of the public and private interests we may respectively represent.


October 7, 2016

EASL Television & Radio Committee Report re Inaugural TV General Counsel Roundtable

Pamela Jones and Barry Skidelsky, co-chairs of EASL's Television & Radio Committee, report that Eriq Gardner, senior editor for the Hollywood Reporter, will moderate a panel discussion among several prominent cable TV network general counsel on January 24, 2017. Save the date!

This prestigious TV GC Roundtable will take place at the New York Hilton/Midtown Manhattan (1335 Avenue of the Americas, between 53rd and 54th Streets) as part of NYSBA's week-long Annual Meeting. CLE credit will be provided. A networking reception will follow off-site.

As this is the first edition of what is expected to become an annual luncheon/networking event organized by EASL's Television & Radio Committee, Pam and Barry are also planning now for next year with leading general counsel from traditional and online broadcasting.

Please contact Pam (pamela@pamelajonesesq.com) or Barry (bskidelsky@mindspring.com) for more information and/or future speaker opportunities, and help spread the growing buzz!

March 24, 2017

NYS Court Rejects NYC Mayor's Claim of Exemption Regarding Freedom of Information Law

By Barry Skidelsky, Esq.

Citing the public interest in a transparent government and a presumption of openness, Justice Joan Lobis of the Supreme Court of the State of New York in New York County determined that NYC Mayor Bill De Blasio is not entitled to an exemption from disclosure required by the State's Freedom of Information Law (FOIL) (Public Officers Law §84 et seq).

In a hybrid Article 78 proceeding/action commenced against the Mayor (in his official capacity) by NY1 and the New York Post (a local cable news channel and newspaper, respectively) (Grace Rau, TWC News and Local Programming LLC, Yoav Gonen, and NYP Holdings, Inc. v. De Blasio (NYS Supreme Court, New York County, Index No. 157525/2016,
https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=m4kufpB4k2hsj_PLUS_phHU4aGg==&display=all&courtType=New%20York%20County%20Supreme%20Court), the court rejected the Mayor's claim that requested email correspondence with a local public relations firm were privileged as inter-agency or intra-agency materials under Public Officers Law §87(2)(g).

Finding that the public relations firm is not part of the Mayor's office or any other city agency, and that it had not been hired by the Mayor but is merely advising him on an informal basis, the court sided with the media petitioners, awarded them attorney fees, and directed the Mayor to disclose requested records.

In her decision and order entered on March 23, 2017, Justice Lobis also referred to a 1986 NYS Court of Appeals case, Capital Newspapers Div. of Hearst Corp. v. Burns (67 NY2d 562 (1986)), for the proposition that "where an agency is asserting an exemption limiting availability, not only does it bear the burden of showing that the record withheld falls within a specified exemption, it must articulate a 'particularized and specific justification for denying access.' "

Obviously failing to meet his burden in this case, the Mayor immediately announced an intention to appeal rather than to comply with the court's directive and produce the withheld documents. This case reinforces the idea that freedom of information is important for an informed electorate at all levels of government.

Barry Skidelsky is a NYC based attorney and consultant with a prominent private practice focused on traditional and digital media, entertainment, telecommunications and technology. Barry is a frequent author and speaker, a member of EASL's Executive Committee, and co-chair of its Television and Radio Committee, as well as a former chair of the NY chapter of the Federal Communications Bar Association (whose members' practices in part involve the FCC in Washington DC). Contact Barry at bskidelsky@mindspring.com or 212-832-4800.

April 16, 2017

The Federal Communications Commission Announces Results of Broadcast Television Auction

By Barry Skidelsky

On April 13th, the Federal Communications Commission (FCC) made public the results of its so-called "incentive auction", which began about one year ago, whereby the broadcast television station spectrum was relinquished to be repurposed in support of U.S. consumers' growing demands for mobile broadband.

According to an FCC News Release, a total of $19.8 billion of gross revenue was realized by the federal government for an aggregate 70 MHz of nation-wide spectrum. Of those proceeds, approximately $10 billion will be disbursed to 175 television broadcasters who participated in the so-called "reverse" stage of the auction.

30 of those 175 broadcasters will relocate to a lower channel, and the remaining 145 will relinquish their licenses. However, the latter group is planning to stay on-the-air via channel-sharing agreements with other television broadcasters who did not participate in the auction. The broadcasters will be required to complete their transitions within 39 months.

Among the largest of the 50 successful bidders in the so-called "forward" stage of the auction were: T-Mobile, US Cellular, Dish, and Comcast. More specific details are provided in and linked to the FCC's News Release (https://apps.fcc.gov/edocs_public/attachmatch/DOC-344397A1.pdf), as well as in a companion summary sheet labeled "By the Numbers." (http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0413/DOC-344398A1.pdf)

Barry Skidelsky is a New York City based attorney and consultant with a nationally prominent diverse practice. He often works with other lawyers or law firms, as well as with individuals and entities directly or indirectly involved with entertainment, communications and technology. His background also includes service as General Counsel for several companies in those fields. A member of the EASL Executive Committee and co-chair of the EASL TV & Radio Committee, Barry is a former chair of the New York Chapter of the Federal Communications Bar Association (whose members' practices in part involve the FCC in Washington DC). Contact Barry at bskidelsky@mindspring.com or 212-832-4800.

September 28, 2017

Designated Agent Deadline re DMCA Safe-Harbor

By Barry Skidelsky

The United States Copyright Office (CO) released a reminder that previous paper filings designating agents for the receipt of take-down notices from copyright owners will only continue to be valid until December 31, 2017 (see https://www.copyright.gov/newsnet/2017/683.html).

By that date, existing agent designations must be updated using the CO's new online registration system. New registrations of designated agents also must be made online. The DMCA Designated Agent Directory's homepage is at www.copyright.gov/dmca-directory/.

Any blogger, website or other online service provider who/that hosts content posted by third parties (e.g., User Generated Content or UGC) that might possibly infringe someone else's copyrights must electronically file an agent designation as a condition of receiving safe harbor protection against copyright infringement claims under Section 512 of the Digital Millennium Copyright Act. The current filing fee is six dollars, a pittance compared to statutory and other damages available in copyright infringement cases. Of course, registering a designated agent to receive take-down notices is just one necessary step to limit liability for materials online (e.g., see 17 USC 512).


October 12, 2017

FCC Grants Experimental License for Project Loon to Operate in Puerto Rico

By Barry Skidelsky

On October 7th, the Federal Communications Commission (FCC) granted an experimental license for Project Loon, led by Google's parent company Alphabet, to help provide emergency cellular service in Puerto Rico. As FCC Chairman Pai explained: "More than two weeks after Hurricane Maria struck, millions of Puerto Ricans are still without access to much-needed communications services. That's why we need to take innovative approaches to help restore connectivity on the island. Project Loon is one such approach."

Project Loon is a network of high altitude balloons that provides connectivity to users on the ground. This novel approach, which requires the cooperation of local incumbent wireless carriers en la isla del encanto, could help provide the people of Puerto Rico with access to cellular service enabling them to connect with loved ones and to access life-saving information.

Project Loon potentially could bring voice and internet access services not only to additional areas impacted by natural disaster caused emergencies, but also to rural or remote regions that generally lack the same communications connectivity large urban areas in the United States regularly enjoy. A brief video explanation from Project Loon is at https://x.company/loon/#video:MiEZfRh-h-s.

---------------------------------------------------------------------------------------------------------------------
Barry Skidelsky is a NYC based attorney whose private practice involves entertainment, media, telecommunications and technology. A frequent author and speaker, member of EASL's Executive Committee and co-chair of EASL's TV & Radio Committee, se habla espańol tambien. Barry can be reached at 212-832-4800 or bskidelsky@mindspring.com.

December 6, 2017

New York State Attorney General Slams FCC Regarding Net Neutrality Investigation

By Barry Skidelsky

The Office of the New York State Attorney General (NYS AG) is investigating whether any public comments filed at the FCC regarding net neutrality rules wrongfully used New Yorkers' identities without their consent.

As Tech Crunch put it: "If the FCC's refusal to acknowledge the vast public outcry against its plan to gut net neutrality isn't enough of an outrage, its total disinterest in investigating how that same comment system may have been gamed by fake users posing as real Americans adds a bit more insult to injury."

Reportedly, the NYS AG asked the FCC to cooperate with its investigation, but the federal agency has been uncooperative. Thus, the NYS AG not only released an open letter to FCC Chairman Pai, but also set up a dedicated web-page soliciting help from the general public.

You can read more about this recent development at https://techcrunch.com/2017/11/21/new-york-attorney-general-fcc-fake-net-neutrality-comments/, and you can access the NYS AG's dedicated web-page at https://ag.ny.gov/fakecomments.

December 15, 2017

FCC December Meeting on Net Neutrality and Television Ownership Rules

By Barry Skidelsky

This blog entry further supplements my article on "Television and Radio Law in the 21st Century", which was published in the Fall/Winter 2017 issue (vol. 28, no. 4) of the EASL Journal.

On December 14, 2017, the FCC formally considered and adopted several noteworthy items, including inter alia, to restore the classification of broadband internet access service (BIAS) as an "information service" rather than a more heavily regulated "telecommunications service" (https://www.fcc.gov/document/fcc-takes-action-restore-internet-freedom).

This expected roll-back of the prior administration's Open Internet Order is merely the latest turn of events in a long and ongoing fight over "net neutrality." This action -- which affects all Internet users, including those who create, own, license, distribute and consume entertainment content -- will surely be challenged at the FCC and/or in court by multiple parties and amici (including tech titans such as Google, Amazon, Facebook and Netflix, as well as New York's and several other state attorney generals).

Of less public notoriety, a Notice of Proposed Rulemaking (NPRM) was adopted by the FCC initiating a comprehensive review of the national television audience reach cap (which rule limits ownership and control of television stations to 39% of U.S. households), including the rule's relationship to the so-called UHF discount, which discounts "attributable interests" held in UHF television stations (https://www.fcc.gov/document/fcc-opens-review-national-ownership-cap).

The effect of these proposed rule changes (which solicit and are subject to public comments) will be to further liberalize legal limits on ownership and control of television stations, to open the door to yet more mergers and acquisitions, joint ventures and related transactional activities, and will likely lead to further media industry consolidation.

Entertainment lawyers should consider reminding their clients and friends that ad hoc coalitions are often organized to share the cost of preparing and submitting administrative and judicial filings addressing common concerns in these and other matters. For more information, please contact me at 212-832-4800 or bskidelsky@mindspring.com.


January 8, 2018

Net Neutrality Update

By Barry Skidelsky

On January 4, 2018, the Federal Communications Commission (FCC) released the formal text of its "Restoring Internet Freedom" Order, previously approved by a 3 to 2 vote along political party lines on December 14, 2017 (http://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0105/FCC-17-166A1.pdf). The 524 page tome (supplemented by statements from each of the FCC Commissioners) spells out details relating to the expected roll-back of the prior administration's net neutrality rules and policies, and it includes language obviously intended to defend against likely challenges.

In short, the FCC re-classified all broadband internet access services (BIAS) as "information" services, rather than as more heavily regulated "telecommunications" services -- regardless of whether service providers own or lease their facilities, and regardless of what technology platforms are employed, including without limit, wired (such as DSL, cable and fiber), fixed and mobile wireless (using licensed or unlicensed spectrum), and satellite services.

This de- or re- regulatory change affects, inter alia, consumers and those in entertainment who do not own or control digital distribution channels. Many fear that it enhances both the incentive and ability of vertically integrated companies to raise prices or unfairly compete.

As my recent EASL Journal article and blog post elaborate, given the absence of relevant federal legislative action, administrative and judicial challenges are likely to be made by various parties and amici -- including technology titans, such as Facebook, Amazon, Netflix, and Google (collectively, FANG), New York and other state attorney generals, and ad hoc coalitions that may be organized to address common concerns.

For more information, please contact me directly.

Barry Skidelsky is an attorney, consultant, arbitrator and mediator, who provides diverse legal and business services nationwide, focused on individuals and entities directly or indirectly involved with entertainment, media, technology and telecommunications (including inter alia lenders, investors, other lawyers and law firms). Currently co-chair of EASL's Television & Radio Committee and previous chair of the NY Chapter of the Federal Communications Bar Association (whose members' practices in part involve work before the FCC in Washington DC), Barry's background also includes being a broadcaster, bankruptcy trustee and in-house General Counsel. Contact Barry at bskidelsky@mindspring.com or 212-832-4800.

February 7, 2018

Defamation, Right of Publicity and Sovereign Immunity

By Barry Skidelsky
Edited by Elissa D. Hecker

The above issues and more were implicated in a recent case involving a photograph of a woman. The photo was licensed by Getty Images ("Getty") to the New York State Division of Human Rights ("DHR"), in connection with DHR's public service announcement ("PSA") campaign intended to enhance public awareness that HIV-positive New Yorkers should not be the targets of discrimination.

The photographer, who originally took the woman's picture in connection with an online magazine article about New Yorkers' music interests, later sold the photograph to Getty without the woman's knowledge or consent. The photographer had also neglected to obtain a release from the woman, and in turn Getty mistakenly led DHR to believe that she had signed one.

Failures by each of those involved to conduct proper due diligence, if not to consult with counsel before the you-know-what hit the fan, obviously contributed to the creation of a messy situation. A friend of the woman saw the advertisement in print, and alerted her to its existence (including the implication that the woman had AIDS). The woman then commenced litigation against New York State in the NY Court of Claims. That court granted her motion for summary judgment on the issue of liability on her defamation "per se" and Civil Rights Law §50 and §51 claims.

New York State then appealed. On appeal, the First Department modified to deny the Claimant summary judgment on her Civil Rights Law claims, to grant New York State summary judgment dismissing those claims, and to grant New York State summary judgment dismissing the standard defamation claim. In part, the appellate court held that the State of New York is entitled to sovereign immunity against the Civil Rights Law claims asserted.

The case is interesting for this and other reasons, including additional matters of interpretation regarding New York State's Right of Publicity as embodied in the Civil Rights Law (a proposed modification of which is currently pending before the New York State legislature), differences between per se and standard defamation, and whether people with HIV or AIDS have a "loathsome disease."

See Nolan v. State of New York, 2018 NY Slip Op 00269 (decided January 16, 2018): http://nycourts.gov/reporter/3dseries/2018/2018_00269.htm

March 6, 2018

Founder of Tower Records Dies at 92 While Drinking Whiskey and Watching the Oscars

By Barry Skidelsky

For those of you who remember (or at least may have heard about) the days when music was distributed on physical media, such as vinyl records and compact discs, perhaps you also know of Russ Solomon. Russ was inter alia a visionary entrepreneur who founded Tower Records in Sacramento, which he built up to become a global empire that truly revolutionized music retailing. Russ died last Sunday night at home from an apparent heart attack while (and reportedly unrelated to) drinking whiskey and watching the Oscars on television.

For more info, see: http://www.sacbee.com/latest-news/article203542104.html

May 14, 2018

U.S. Supreme Court Rules That the Professional and Amateur Sports Protection Act is Unconstitutional

By Barry Skidelsky

In Murphy v. NCAA, a hot-off-the-presses decision of the United States Supreme Court dated May 14, 2018 (https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf), SCOTUS declared that a federal statutory ban relating to sports gambling known as the Professional and Amateur Sports Protection Act (PASPA) is unconstitutional.

Effectively ending prohibitions on a $100 billion industry, this decision reverses that of the Third Circuit below, which previously upheld the restrictions on wagering outside of Nevada. Several states and others have been eagerly awaiting this decision, which in part is also relevant to the limits of the federal government over states' regulatory powers.

The decision will be an extremely relevant topic of discussion among our sports law panelists during EASL's Spring Meeting afternoon program on May 15th. The cost for EASL members to attend is only $50, and includes 5 hours of CLE credit and a post-program networking reception.

I look forward to seeing you then. For more information and to register, visit www.nysba.org/easl.

Barry Skidelsky
Chair NYS Bar Association, Entertainment Arts and Sports Law section (EASL)
bskidelsky@mindspring.com

June 22, 2018

U.S. Supreme Court Rules That Local Governments May Collect Sales Tax From Internet Retailers

By Barry Skidelsky, Esq.*

On June 20, 2018, the U.S. Supreme Court released an opinion of wide ranging importance not only to those who make retail sales over the Internet, but also to state and local governments who wish to impose related sales taxes. The opinion in South Dakota v. Wayfair is available at https://www.supremecourt.gov/opinions/17pdf/17-494_j4el.pdf.

This case overruled a well-known 1992 U.S. Supreme Court decision (Quill v. North Dakota, 504 U.S. 298), which had held that the Constitution's Commerce Clause bars any state from collecting sales taxes from retailers who lack a brick-and-mortar presence in that state. In Wayfair, the court held that "the physical presence rule of Quill is unsound and incorrect."

Writing for the majority, Justice Kennedy explained that when Quill was decided "the court could not have envisioned a world in which the world's largest retailer would be a remote seller." Think Amazon, and consider that less than 2% of Americans had internet access in 1992, as compared to about 89% today. Further, U.S. mail order sales in 1992 totaled approximately $180 billion, while e-commerce retail sales alone last year reached an estimated $453.5 billion.

Kennedy also said the rule in Quill had created an unfair system favoring online retailers, in effect serving as a judicially created tax shelter for sellers that decide to limit their physical presence -- which also caused local governments to lose up to a total of $33 billion a year in sales tax revenue. At issue in the Wayfair case was the constitutionality of a South Dakota law that requires out-of-state retailers to pay sales taxes, provided they make at least 200 sales or at least $100,000 in sales in that state.

A dissenting opinion in Wayfair written by Justice Roberts opposes discarding the physical presence rule, because the internet economy has grown up in reliance on it. Any change to rules with the potential to disrupt such a critical segment of the economy should be left to Congress, he said. Collecting taxes on all e-commerce sales "will likely prove baffling for many retailers."

Currently, more than 10,000 state and local jurisdictions collect sales taxes, each with differing rules and rates. "This is neither the first, nor the second, but the third time this court has been asked whether a state may obligate sellers with no physical presence within its borders to collect tax on sales to residents," Roberts wrote. "Whatever salience the adage 'third time's a charm' has in daily life, it is a poor guide to Supreme Court decision-making."

This decision should be of immediate concern to anyone (not just major players like Amazon) who makes or who contemplates making retail sales online or via mobile devices -- taking into account not only location of the seller, but also location of the seller's buyers, customers, fans or audience. The Wayfair decision is part of a broader and emerging trend to increasingly transpose a variety of laws and regulations from the analog or real world into today's digital ecosystem, affecting the sale of entertainment, arts, and sports related merchandise - and much more.

*Barry Skidelsky is Chair of the NYS Bar Association's Entertainment Arts and Sports Law (EASL) section, former Chair of its TV and Radio Committee, and former Chair of the NY chapter of the Federal Communications Bar Association (whose members' practices in part involve work before the FCC in Washington DC). He also successfully served as an in-house General Counsel and Corporate Secretary for inter alia a publicly traded digital media company and a venture capital backed internet service provider, as well as a bankruptcy trustee (following nomination by a large financial institution he had consulted), and as a business broker. Barry provides diverse legal and consulting services to lawyers, other individuals, companies and local governments, offering particular value to those directly or indirectly involved with entertainment, media, technology and telecommunications. Contact Barry at bskidelsky@mindspring.com or 212-832-4800.

June 25, 2018

Dan Ingram, RIP

By Barry Skidelsy
EASL Chair, former Co-Chair EASL TV & Radio Committee

Legendary New York radio disc jockey and Long Island native Dan Ingram died at the age of 83. When inducted into the National Radio Hall of Fame in 2007, Dan was named "the best Top 40 DJ of all time." I -- and many other members of EASL, I suspect -- who remember listening to Dan during the W-A-Beatles-C heydays or during his later time on-air in NYC at WCBS-FM, do not dispute that honor and are saddened by his passing.

If you don't know about any of this (or even of you do), take a few minutes to check out this Newsday obit (https://www.newsday.com/entertainment/celebrities/dan-ingram-death-1.19424059), this post from the National Radio Hall of Fame (http://nationalradiohalloffame.com/dan_ingram.htm); and, this "scoped" behind-the-scenes air-check from 1992 while Dan was then on-air at WCBS-FM in New York City (https://www.youtube.com/watch?v=cBr308F3lIA&feature=youtu.be).

Tight, baby, tight. Man, I miss those days. RIP Dan.

September 13, 2018

New Federal Law Imposes Reporting Requirements for U.S.-Based Foreign Media Outlets

By Barry Skidelsky, Esq.

The recently enacted John MCain National Defense Authorization Act for fiscal year 2019 (NDAA) adds §722 to the Communications Act. It requires the filing of reports with the Federal Communications Commission (FCC) by statutorily defined U.S. based foreign media outlets, including details of their legal structures and relationships, as well as of their funding sources.

All media outlets in the United States owned or controlled by foreign principals (see definitions of foreign principals and agents in the Foreign Agents Registration Act or FARA, 22 USC § 611 et seq.), including those physically located outside the U.S. who produce or distribute video programming transmitted (or intended for transmission) by a multi-channel video program distributor (MVPD) within the U.S., such as cable system operators or satellite service providers, should confirm their obligations under (and timely comply with) the new reporting obligations.

The new law responds to concerns that certain foreign governments and organizations have been using FARA's journalism or news reporting exception, which allows avoidance of otherwise applicable federal agent registration requirements that relate back to pre-World War II fears of Nazi Germany, Fascist Italy, and the Soviet Union, as a mask or subterfuge to instead promote their own political agendas and to otherwise unfairly influence the American public.

Some critics of the new law, while nonetheless acknowledging legitimate American concerns, cite First Amendment free press implications and raise related fears that President Trump often seems hell-bent on labeling as "fake news" all coverage by any domestic or foreign media with which he disagrees.

Prompted by more serious and potentially subversive threats from, inter alia, Russia's RT America, China's Central Television, and Qatar's Al Jazeera -- the last of which was recently designated by the Department Of Justice (DOJ) under FARA as a foreign agent, and which faces calls for investigation into its positive promotion of terrorist organizations, such as Iranian-sponsored Hezbollah and Hamas, as well as other foreign state sponsored anti-Semitic and anti-America propaganda -- the new law effectively adds the FCC (under NDAA) to the DOJ (under FARA) as another way for our federal government to require reporting from, and to monitor domestic influence by, U.S. based foreign media outlets.

The deadline for affected media outlets to submit their first reports is October 12, 2018, with subsequent reports due no less frequently than every 6 months thereafter. In turn, the FCC will make those reports available to the public and summarize them in the FCC's own periodic reports to Congress. For more information, see FCC Public Notice DA 18-911 (rel. 9/4/18) at https://docs.fcc.gov/public/attachments/DA-18-911A1.pdf or contact the author of this note.

Barry Skidelsky is a NYC based attorney and consultant with a diverse national practice and expertise in entertainment and media. Currently Chair of EASL, Barry is a former broadcaster, former chair of the Federal Communications Bar Association's NY chapter, and former chair of EASL's Television and Radio Committee. He can be reached at bskidelsky@mindspring.com or 212-832-4800.

December 3, 2018

A Warning About Derivative Rights and Digital Media

By Barry Skidelsky, Esq, EASL Chair

In one of the first nationally prominent lawsuits concerning podcasts, some of the world's leading record labels and music publishers recently sued the owner of pokernews.com for willful copyright infringement due to unauthorized use of music in the defendant's poker related podcasts. Additional causes of action were stated for unfair competition under state and common law.

The case serves as a wake-up call to all future and current owners of podcasts, apps, websites, and streaming services to realize that most digital media are "derivative works" involving multiple original works and underlying rights which must be "cleared" upfront. Failure to do so increases risks and costs.

In UMG v. iBus Media (case no. 2:18-cv-9709, U.S. District Court, Central District of California), the Complaint filed on November 16, 2018 (https://torrentfreak.com/images/rl-pokernews.pdf) alleges that (although discovery and further investigation may raise the numbers) 46 copyrighted songs were unlawfully used in more than 253 podcasts.

Examples listed include "Magic Carpet Ride" by Steppenwolf, "White Wedding" by Billy Idol, "Ain't No Love In The Heart Of The City" by Bobby Bland, "Every Little Thing She Does Is Magic" by The Police, "Pennies From Heaven" by Frank Sinatra, "Friends in Low Places" by Garth Brooks, "Money Maker" by Ludacris, "I Can" by Nas, and "Touch The Sky" by Kanye West. Kudos to you if you know all of those songs, as you obviously have eclectic tastes!

The Complaint seeks statutory damages (estimated to be nearly $7 Million, based on a maximum of $150,000 for each of the 46 infringed works), punitive damages, temporary and permanent injunctions, counsel fees, and other relief. Whether or not pokernews.com will ante up or fold as a result of this hand it has been dealt remains to be seen.

Meanwhile, if you would like to learn more about derivative rights, including practical pointers about the business and law relevant to adaptations of original works and underlying rights, please register and attend EASL's Annual Meeting (Tuesday, January 15, 2019) at the NYC Hilton, which will be followed by an off-site joint networking reception with NYSBA's IP section.

As always, registration and other info is available at www.nysba.org/easl. I look forward to seeing you soon. Happy holidays to one and all!

---------------------------------------
Barry Skidelsky (EASL's Chair) has experience as a musician, broadcaster, bankruptcy trustee, FCC trustee, arbitrator, and General Counsel of inter alia a publicly traded digital media/advertising technology company. With interests and expertise in media, entertainment, communications and technology, Barry provides diverse legal representation, counsel, co-counsel, consulting and related services.

About Barry Skidelsky

This page contains an archive of all entries posted to The Entertainment, Arts and Sports Law Blog in the Barry Skidelsky category. They are listed from oldest to newest.

Arts is the previous category.

Bennett Liebman is the next category.

Many more can be found on the main index page or by looking through the archives.