2nd Circuit: Section 111 compulsory license still does not apply to Internet transmissions
by Tim Bukher
This one is for my digital broadcaster clients: The 2nd Circuit has just ruled, again, that Section 111 of the Copyright Act, which grants a compulsory license for cable broadcasters to re-broadcast television programming, does not apply to Internet broadcasters.
In other words, while cable-based broadcasters can “copy” and republish original programming to remote consumers by paying a fairly nominal compulsory license fee to the Copyright Office, performing such rebroadcasting via the Internet will subject the digital broadcaster to copyright infringement exposure:
As the Second Circuit notes, “Congress enacted § 111 to enable cable systems to continue providing greater geographical access to television programming while offering some protection to broadcasters to incentivize the continued creation of broadcast television programming.” But the compulsory license provision must be read narrowly since it acts “in derogation of the exclusive property rights granted by the Copyright Act to copyright holders” and results in governmental intrusion into the marketplace. The court concluded “that Congress did not intend for § 111′s compulsory license to extend to Internet retransmissions.”
The Circuit court also found that the Copyright Office has consistently held the position that § 111 doesn’t apply to Internet retransmissions, expressing that position multiple times over the past decade and a half.
Foregoing via CopyrightAlliance.
While the Copyright Alliance notes that “the Second Circuit today correctly distinguished between true innovation and ivi’s commercial misappropriation,” I read this as a simple case of Congress not keeping up with technological advances.
I personally see no difference between cable rebroadcasting and digital rebroadcasting so long as the compulsory license fee is paid, the only difference here is that Congress has yet to write the word “Internet” into Section 111.
Tell us what do you think.
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