The DOJ and FTC jointly sought comment Friday on a proposed update of their 1995 guidelines for enforcing antitrust policy on IP licensing matters protected by relevant copyright, patent and trade secret laws. The revisions are intended to “modernize” the existing IP guidelines to reflect recent IP-related court cases, the 2016 Defend Trade Secrets Act and changes in the lengths of copyright and patent terms, the agencies said. The update also addresses issues that the government raised in the pair's 2007 report on antitrust IP issues and in the FTC's 2011 IP marketplace report, including language that reflects the agencies' view that “the antitrust laws generally do not impose liability upon a firm for a unilateral refusal to assist its competitors, in part because doing so may undermine incentives for investment and innovation.” The agencies also are updating the guidelines to reflect an analysis of markets affected by licensing arrangements that mirrors their approach for horizontal mergers. The new language retains the idea of “innovation markets” but refers to them as “research and development markets” to better reflect how the DOJ and FTC defined them in enforcement actions, the agencies said. The IP licensing guidelines “have been invaluable to the department’s investigative and enforcement efforts since they were issued in 1995,” said Antitrust Division head Renata Hesse in a news release. “They have also guided business planning, and they have been cited by courts, in numerous government briefs, business review letters, and policy documents. Although the Guidelines are sound, it is time to modernize them to reflect changes in the law since they were issued.” Comments on the guidelines revamp are due Sept. 26. FTC members voted 3-0 to issue the request for modernization.

The Copyright Royalty Board sought comment Wednesday on an additional technical amendment to rules on how noncommercial broadcasters must report streamed sound recordings to SoundExchange for royalty purposes. The amendment is aimed at reinstating rules that ease the reporting requirements for both noncommercial broadcasters and commercial broadcasters when either pays no more than the $500 minimum annual royalty, the CRB said in a notice in the Federal Register. The reporting requirements relief requires “minimum fee” entities to only report two weeks of sound-recording figures per quarter and to report a playlist of sound recordings streamed during a specific period and the aggregate tuning hours for that period. An amendment to the rules that the CRB released in June, was aimed at expanding the reporting relief to noncommercial educational webcasters, appeared to inadvertently exclude noncommercial broadcasters from its definition of entities eligible for reporting relief, the CRB said. Comments on the amendment are due Sept. 9, the CRB said. “We’re not expecting any fierce or widespread opposition to the [CRB’s] proposed amendment, which would restore the prior status quo for noncommercial broadcasters,” said copyright and music licensing lawyer Karyn Ablin of Fletcher Heald in a blog post Wednesday. Ablin represented NAB and the National Religious Broadcasters Noncommercial Music License Committee in the CRB proceeding. “It’s hard to argue that noncommercial broadcasters should be treated more harshly under the reporting rules than commercial broadcasters," Ablin said. "In fact, both types of radio broadcasters face unique reporting challenges that merit special consideration because broadcasters’ main business is over-the-air radio, not streaming, and their systems were designed with over-the-air radio, not streaming, in mind.”

Broadcast Music Inc.’s claim that DOJ’s final decision in its review of the American Society of Composers, Authors and Publishers and BMI consent decrees “marks a radical departure from existing practice is belied by its own statements, is disproven by its own practices, and, if accepted, would undermine the value of BMI’s license,” said Justice’s Antitrust Division in a court filing Tuesday. Antitrust made its filing (in Pacer) to rebut BMI’s legal challenge to the consent decrees decision in U.S. District Court in New York. BMI is leading the legal challenge via its rate court proceeding (64-03787) with Judge Louis Stanton, claiming in part that DOJ’s decision to issue language clarifying that the department continues to believe the existing decrees mandate 100 percent licensing “would contradict decades of historical practice” (see 1608040066). “As BMI itself acknowledged more than a year ago, BMI’s consent decree ‘has been construed to compel BMI to grant licenses to perform the "composition" -- not merely the partial interest in the composition owned by BMI’s affiliate,’” Antitrust said in its filing. “BMI’s unilateral request for modification, far from identifying the ‘significant change in circumstances’ required to modify a consent decree, expressly denies that the requested modification ‘is proposed to adapt the decree to changed circumstances in law or fact.’” BMI-granted licenses “never granted rights to ‘interests in compositions,’ and always granted licensees the ability to ‘perform’ the compositions,” Antitrust said. “BMI does not explain how a licensee could ‘perform’ an interest in a composition.” BMI’s “recognition last year of the decree’s ‘apparent requirement of mandatory licensing of the entire composition’ should end any argument that the Division’s interpretation marks some sort of radical departure,” Antitrust said. “And BMI’s consistent practice of granting licenses to perform works, and describing them as such, should make clear that it would be a departure not to provide full-work licenses.”

The Electronic Frontier Foundation and a coalition of consumer groups and content industry stakeholders asked the FTC Friday to label e-books and other digital content that has embedded digital rights management “locks” aimed at preventing copyright infringement. The other signatories on the EFF-led letter included the Consumer Federation of America, the Free Software Foundation and Public Knowledge. Amazon, Google and other tech sector companies are duty-bound to inform consumers about the presence of digital locks on products since such locks are not universally used, the EFF-led coalition said. “This matters because the public has demonstrated a strong preference for DRM-free ebooks and other electronic products,” the coalition said. “For example, in 2014, independent DRM-free ebooks across all marketplaces outsold DRM-locked ones 2:1.” The use of DRM is controversial but “what should not be controversial is that a purchaser should be able to tell whether she is buying a DRM-encumbered product before she spends her money,” the coalition said. “DRM advocates argue that the sales of their products are proof that the public accepts DRM as a proportionate remedy for concerns about copyright infringement, but if that’s so, the existence of a consistent labeling process will not reduce their sales.” If consumers are unaware of the use of DRM on products at the point of purchase, “they are being mis-sold a product that comes with unexpected, unpredictable restrictions,” the coalition said. “That buyers prefer DRM-free at the rate of 2:1 suggests that the market would benefit from better labeling across all categories and storefronts.” An e-retailer's indication of the use of DRM in a product should include a “clear explanation of the restrictions imposed on that product,” the coalition said.

Senate Judiciary Antitrust Subcommittee Chairman Mike Lee, R-Utah, praised DOJ Thursday for the “thoroughness” of the Antitrust Division's review of the department's American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees, which concluded Thursday with Justice's release of its final decision. The decision not to alter the existing consent decrees to allow music publishers to partially withdraw from the decrees and its language clarifying that the department continues to believe the existing decrees mandate 100 percent licensing already faces a legal challenge from BMI in the U.S. District Court in New York (see 1608040066). “The complicated nature of the consent decrees and of the market for musical licenses requires such an exhaustive review,” Lee said in a statement. “As we emphasized [in a 2015 Antitrust Subcommittee hearing on the consent decrees (see 1503090051 and 1503100068), any government oversight of this market must encourage creativity by recognizing the value of copyrights and ensure that prices for music remain competitive for consumers.” The decision shows “that the bullet has been dodged,” said copyright and music licensing lawyer Karyn Ablin of Fletcher Heald in a blog post Friday. “DOJ acknowledged that license pricing and royalty distribution have historically been based on fractional ownership interests. But it also recognized that an important pro-competitive benefit offered by ASCAP and BMI is granting music users immediate access to works in those PROs’ respective repertories without fear of infringement liability. It found that fractional licensing would undermine that access and protection from liability.” The combination of a ASCAP-led lobbying push on Capitol Hill and BMI's litigation make it “much harder to predict” whether the decision ultimately will stand, Ablin said. “This division of labor was no accident -- conventional wisdom has it that the rate court overseeing BMI’s operations is more favorable to PRO interests than is the court charged with monitoring ASCAP.”

George Mason University Center for the Protection of Intellectual Property Senior Scholar Adam Mossoff and 27 other U.S. academics jointly urged the leaders of the House and Senate Judiciary committees Monday to “exercise caution” in considering the patent litigation-focused Venue Equity and Non-Uniformity Elimination (Venue) Act. (S-2733), filed in March (see 1603180057). The legislation would revamp rules for placement of patent infringement lawsuits in federal courts, requiring at least one of the parties involved in the suit be connected directly to the jurisdiction in which the lawsuit is filed. House Judiciary Chairman Bob Goodlatte, R-Va., has said he isn’t opposed to narrowly focused patent bills like S-2733 but prefers to focus on his more comprehensive Innovation Act (HR-9), which also addresses patent litigation venue issues (see 1603250056). A “cautious stance” on bills like S-2733 is needed until the effects of the establishment of the Patent Trial and Appeal Board and other changes to the patent system enacted via the 2011 America Invents Act “are better understood,” the academics said in their letter to Goodlatte and other House and Senate Judiciary leaders. Although calls for revamping venue rules sound plausible because of the high concentration of patent infringement suits in the U.S. District Court for the Eastern District of Texas, the push for bills like S-2733 primarily is coming from tech firms and online retailers “that would rather litigate in a small number of more defendant-friendly jurisdictions,” the academics said. They said other arguments in favor of S-2733 “do not stand up to scrutiny,” including claims the bill would spread lawsuits to other courts around the country. Some S-2733 supporters “have found that restricting venue in a manner similar to the VENUE Act would likely result in concentrating more than 50% of patent lawsuits in just two districts: the District of Delaware (where most publicly traded corporations are incorporated) and the Northern District of California (where many patent defendants are headquartered),” the academics said. S-2733 would “raise costs for many patent owners by requiring them to litigate the same patent against multiple defendants in multiple jurisdictions, increasing patent litigation overall,” the academics said: The bill also “encourages the manipulation of well-settled venue rules across all areas of law by the self-serving efforts of large corporate defendants that seek to insulate themselves from the consequences of violating the law. By enacting the Venue Act, Congress would send a strong signal to corporate defendants that they can tilt the substantive playing field by simply shifting cases to defendant-friendly jurisdictions.”

Limelight Networks reached a settlement Monday with Akamai Technologies to end their long-running patent infringement battle over an Akamai-owned content delivery system patent that was the subject of a 2014 Supreme Court case (see report in the June 3, 2014, issue). Limelight agreed to pay $54 million to Akamai -- spread over 12 consecutive quarters -- in exchange for a patent license and a commitment from both parties to reliquish their right to further appeals of the case. A U.S. District Court in Boston ordered Limelight last month to pay Akamai $51 million damages for infringing Akamai’s patent after the case was remanded from the U.S. Court of Appeals for the Federal Circuit (see 1607010068). “We are pleased by the outcome of this agreement. It eliminates the continuing risk from [Akamai’s] patent and allows us to extend the $51 million payment over a three-year period at an attractive interest rate,” said Limelight CEO Robert Lento in a news release.

The Copyright Alliance is seeking members' support for an open letter to all candidates campaigning in the November general election that backs a “strong copyright system that rewards creativity and promotes a healthy economy.” Copyright law “should protect creators from those who would use the internet to undermine creativity,” the CA-led letter said. “The internet can be a great tool for creators just as it can be a tool” for other disciplines. “However, when misused, it can harm creativity and stifle freedom of expression,” the letter said. The CA also said content creators should be “part of the conversation” on a potential congressional revamp of copyright law. “Some organizations and advocates, who in many cases are funded by online platforms, repeatedly claim to be pro-creators and pro-audience to mask their own self-serving agenda,” the CA said in the letter. “The creative community is rightfully wary of any company or organization that claims to be 'against piracy' when their actions do not match their words.”

MicroVision sees laser-based 3D-sensing technology called “LIDAR” as an “important growth area for us,” CEO Alexander Tokman said on a Thursday earnings call. He defined LIDAR -- an acronym for light detection and ranging -- as a sensing method that uses pulse-laser light to measure ranges, surfaces and volumes. “Think of it as a detection system that works on the principle of radar, but uses light from a laser as a source,” Tokman said. Many top CE companies “are defining new products for 2018 and beyond that use LIDAR-like technologies,” he said. They include “near-field” 3D sensing for gesture-recognition uses, “mid-field” sensing for “robo-guidance” applications and “far-field” sensing for use in autonomous vehicles, he said. MicroVision believes its “baseline capability” in LIDAR technology “is superior” to those of its competitors, he said. “We've garnered interest from some major consumer electronics OEMs based on what we have demonstrated with paper models of our superior capabilities in this area,” Tokman said. “In order to move to the next stage, we plan to create working prototypes, which could be validated and verified by our prospective partners for products starting as early as late 2017 and beyond. The investments we're making today in 3D sensing technology are necessary precursors for tapping into the growth opportunity we expect to see from this emerging market.”

Google landed a new U.S. patent that reveals details of the company’s plan to make online streaming look and feel more like over-the-air TV viewing by offering viewers the chance to channel-surf with familiar up-down hopping and instant picture previews. Current content streaming is too much of a computer experience rather than a traditional television viewing experience, says the patent, published July 19 by the Patent and Trademark Office, based on a May 2014 application. The viewer is faced with “vast amounts of content which require navigating through an endless hierarchy of menus and interacting with cumbersome search boxes,” it says. With TV viewing, “users often enjoy the somewhat addictive pleasure of scanning through content in search of something they want to watch,” it says. “In contrast, current on-demand interfaces often include elaborate text guides meant to facilitate quick surveying of available programming. But reading text requires the kind of cognitive effort that a user often attempts to avoid when watching television.” Google’s solution is to propose that as soon as the viewer accesses one content stream, the device automatically accesses a set of different content streams, chosen on a “more of the same” basis or tailored to the viewer’s preference profile, the patent says. So if the viewer chooses an action movie, the system automatically accesses several other action movies, choosing actors that the viewer has previously watched, it says. Some random content may be thrown in for serendipity purposes, it says. If the user previously has changed channels when things get scary on screen, the device steers clear of scary movies, it says. The extra streams -- Google suggests there should be at least five -- are buffered and labeled with names or numbers similar to those used by broadcast TV stations, it says. That way the viewer can get an instant preview of several online TV streams, just as if they were off-air broadcasts, it says. The buffering plays enough of the content to let the stream take over if the viewer chooses one to watch, it says. The system would work equally well with online radio stations or music delivery services, it says. Google didn’t comment on plans to commercialize the invention.