[Manila Principles] Re Online Retransmission Consent and DMCA Liability Protections

Seth Johnson seth.p.johnson at gmail.com
Sat Mar 21 22:25:13 PDT 2015

Hi all -- Please see the following.  Jeremy, I ask that you relay this
to your group discussing this this afternoon (1:30 in Manila).  Or
rather, I'll reply to this message with some notes that reflect some
important points that you heard from me yesterday, and including a
perhaps practical suggestion that you might be able to accomplish in
the space of your gathering, that could help rectify the concerns I
have.  I urge you to forward that to the Manila Principles folks so
they can consider it and maybe address it tonight or tomorrow.


---------- Forwarded message ----------
From: Seth Johnson <seth.p.johnson at gmail.com>
Date: Sat, Mar 21, 2015 at 11:53 PM
Subject: Online Retransmission Consent and DMCA Liability Protections
To: internetpolicy <internetpolicy at elists.isoc.org>

Hello all, at the following link you will find the FCC's NPRM for
establishing a "retransmission consent" regime online for a specific
class of online services called Multichannel Video Programming
Distributors. It addresses all services that make multiple linear
video programming streams available online on a subscription basis:
> https://www.federalregister.gov/articles/2015/01/15/2014-30777/promoting-innovation-and-competition-in-the-provision-of-multichannel-video-programming-distribution

It would establish the first formal exception to the broad protections
against copyright infringement liability provided to online service
providers under the DMCA's Notice and Takedown procedures -- and it is
being proposed by the FCC, not by Congress.

In addition, I was informed in an email exchange a week before this
NPRM was initiated that the US sees retransmission consent as a basis
for the national implementation that would be required for the
Broadcaster's Treaty, a treaty proposing to establish a new
international layer of rights for broadcasters online that is not yet
formalized or ratified, but which has been regularly resurrected
despite ongoing opposition and concern voiced by many organizations.
With the national implementation already in place, treaty negotiators
could readily ratify and implement the Broadcaster's Treaty without
the domestic public and legislative debate that it warrants.  The FCC
makes no mention in this NPRM of this relationship between
establishing retransmission consent online under domestic law and the
Broadcaster's Treaty.

Here's my submission, submitted on the final day of the Reply Comments
period (They were extended to this past Wednesday):
> http://apps.fcc.gov/ecfs/comment/view?id=60001027037

It encourages the FCC to recognize this as a proposition that should
be taken up through legislative channels that hold the power to
address, as a matter of copyright, the scope of the DMCA's liability
protections, and to be forthright about the implication of this
regulatory act serving as a national implementation, before the fact,
of the Broadcaster's Treaty.

Most of you know that we not only rely on our telecommunications
environment to assure our ability to to freely enter the network of
networks, peer among ourselves and offer services online, but we also
benefit from protection from copyright liability which would otherwise
hamper our ability to make the most effective and valuable use of the
Internet's potential, as we act as intermediaries.  Otherwise we would
all become liable as soon as we open a port and run a server of nearly
any kind that involves users exchanging information.

While the online safe harbor the DMCA created in 1998 might have
served to provide a space in which we could deliberate the types of
policies that are appropriate for the new medium, this is not how
things have developed.  It would seem to me to that now, when we are
in the midst of a process of contemplating a transition to new modes
of stewardship and governance for the Internet, that we should make
sure that actions like this don't occur without our making sure we
have the opportunity to address them properly.

I encourage everyone to ask the FCC, the State Department, various
relevant agencies and Congress to open up the discourse on the full
implications of the proposal to establish retransmission consent on
the Internet.

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