Technology Law and Electronic Media Update

March 14, 2015

March 2015. Copyright Law. Are Pharrell and Thicke $7 Million dollars (plus legal fees) poorer and the heirs of Marvin Gaye that much richer (minus legal fees)? Don’t be so sure. In the copyright infringement case making the news, where a jury decided the song “Blurred Lines” was an infringing derivative of Marvin Gaye’s “Got to Give it Up”, the evidence did not include similarity of melody or lyrics. While the test for copyright infringement is “substantial similarity”, the law requires that the similarity not be based primarily on commonly used expressive elements, referred to in the literary context as “scenes a faire.” In this case, the similarities (to my ear, y’all) are the tempo, the timbre of the synthesized bass sound, the syncopation of the singing, and the breathy placement of the singing in the higher register of the singers. While both songs rely on a similarly syncopated I-IV-V chord progression in the bass, that is a common element in pop music. This case is ripe for reversal on appeal because the notion that two songs with completely distinct melodies and lyrics are considered “substantially similar” due to stylistic similarities in the production of the sound recordings lowers the threshold to find copyright infringement from its traditional level, as a matter of law. Stay tuned.

Many thanks to my friend and colleague Wallace Collins, Esq. for raising this issue.

February 2015. Communications Law. The Federal Communications Commission by a vote of 3-2 just released its new “net neutrality” regulations. The earth-shaking decision is that the F.C.C.’s order “reclassifies ‘broadband Internet access service’… as a ‘telecommunications service’ under Title II.” That re- classification provides the F.C.C. the legal authority to issue regulations over Internet service providers that before, according to the D.C. Circuit court, the F.C.C. did not have the authority to issue. The substance of the regulation bans “Paid Prioritization” of network traffic, “Blocking” certain websites of content and “Throttling” of network speeds to favor one website over another. According to Commissioner Wheeler, “[t]hese enforceable, bright-line rules assure the rights of Internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission.”

In dissent, Commissioner Pai considers this result a “radical departure from the bipartisan, market-oriented policies …”, that it constituted “flip-flopping” and says that “President Obama told us to do so.” This view may forget that the D.C. Circuit struck down the prior version of the regulations under the prior classification. So you could say the Federal judge told the F.C.C. to do it. But he does include this nugget that “the Secretary General of the European People’s Party, the largest party in the European Parliament, observed that the FCC, ‘at the behest of . . . [P]resident [Obama] himself,’ was about to impose the type of ‘[r]egulation which . . . has led Europe to fall behind the US in levels of [broadband] investment.’” Earth shaking that a Republican Commissioner cites a European parliamentarian as authority over U.S. regulatory law. More to the point is whether this new regulatory regime is similar to how the South Koreans do it, where it is reported that broadband penetration is over 90%—giving rise to such innovations like the song “Gangnam Style.”

The new regulations are about 2 pages of substantive regulation, out of 400 pages of factual findings and commissioner statements. Thankfully, it wasn’t the reverse. Commissioner Pai expects the regulations to be challenged in D.C. Circuit court once again.

Don’t touch that channel!

March 19, 2015. Ted Sabety, principal of Sabety +associates, PLLC, will be speaking at:

Law and Policy at the Intersection of Innovation and Economic Development

Albany Law School – March 19, 2015
80 New Scotland Ave, Albany, NY 12208