Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Notices 41309 

1Study on the Right of Making Available; 

Comments and Public Roundtable, 79 FR 10571 

(Feb. 25, 2014). 

2WIPO Copyright Treaty art. 8, Dec. 20, 1996, 36 

I.L.M. 65; WIPO Performances and Phonograms 

Treaty arts. 10, 14, Dec. 20, 1996, 36 I.L.M. 76. 

3See Making Available Study, U.S. Copyright 

Office, http://www.copyright.gov/docs/ 

making_available/. 

4See 17 U.S.C. 101. 

5 573 U.S. ___, No. 13–461, 2014 U.S. LEXIS 4496 

(June 25, 2014). 

6See 17 U.S.C. 106(4). 

7 Id. section 101 (definition of ‘‘To perform . . . 

a work ‘publicly’ ’’). 

Dated: July 11, 2014. 

Katherine Ward, 

Executive Assistant to the Vice President for 

Legal Affairs & General Counsel. 

[FR Doc. 2014–16758 Filed 7–11–14; 4:15 pm] 

BILLING CODE 7050–01–P 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

[Docket No. 2014–2] 

Study on the Right of Making 

Available; Request for Additional 

Comments 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Request for additional 

comments. 

SUMMARY: The U.S. Copyright Office 

seeks further comments on the state of 

U.S. law recognizing and protecting 

‘‘making available’’ and 

‘‘communication to the public’’ rights 

for copyright holders. This request 

provides an opportunity for interested 

parties to address issues raised in prior 

written comments and during the public 

roundtable held on May 5, 2014, as well 

as express their views on recent legal 

developments. 

DATES: Comments must be received no 

later than 5:00 p.m. EDT on August 14, 

2014. 

ADDRESSES: All comments should be 

submitted electronically. To submit 

comments, please visit http:// 

www.copyright.gov/docs/ 

making_available/. The Web site 

interface requires submitters to 

complete a form specifying name and 

organization, as applicable, and to 

upload comments as an attachment via 

a browser button. To meet accessibility 

standards, commenting parties must 

upload comments in a single file not to 

exceed six megabytes (‘‘MB’’) in one of 

the following formats: A Portable 

Document File (‘‘PDF’’) format that 

contains searchable, accessible text (not 

an image); Microsoft Word; 

WordPerfect; Rich Text Format (‘‘RTF’’); 

or ASCII text file format (not a scanned 

document). The form and face of the 

comments must include both the name 

of the submitter and organization. The 

Office will post all comments publicly 

on the Office’s Web site exactly as they 

are received, along with names and 

organizations. If electronic submission 

of comments is not feasible, please 

contact the Office at 202–707–1027 for 

special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Maria Strong, Senior Counsel for Policy 

and International Affairs, by telephone 

at 202–707–1027 or by email at 

mstrong@loc.gov, or Kevin Amer, 

Counsel for Policy and International 

Affairs, by telephone at 202–707–1027 

or by email at kamer@loc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Copyright Office is undertaking a 

study at the request of Congress to 

assess the state of U.S. law recognizing 

and protecting ‘‘making available’’ and 

‘‘communication to the public’’ rights 

for copyright holders, particularly in the 

digital age. As part of its review, the 

Office issued a Notice of Inquiry (the 

‘‘Notice’’) on February 25, 2014,1

seeking comments from the public on 

the following general issues: (1) How 

the existing bundle of exclusive rights 

under Title 17 covers the making 

available and communication to the 

public rights in the context of digital ondemand transmissions such as peer-topeer networks, streaming services, and 

music downloads, as well as more 

broadly in the digital environment; (2) 

how foreign laws have interpreted and 

implemented the relevant provisions of 

the WIPO Internet Treaties; 2 and (3) the 

feasibility and necessity of amending 

U.S. law to strengthen or clarify our law 

in this area. The Office also posed 

additional questions on each of these 

topics. 

The Office received twenty-seven 

written comments from various 

interested parties in response to the 

Notice. On May 5, 2014, the Office held 

a public roundtable in Washington, DC 

to hear stakeholder views on these 

issues. Commenters and participants in 

the roundtable expressed a variety of 

views on a broad range of topics. The 

Notice, public comments, the agenda for 

the public roundtable, and the transcript 

of the roundtable proceedings are 

posted on the Copyright Office Web 

site.3 A video recording of the 

roundtable will be posted on the Web 

site when it becomes available. 

Commenters and roundtable 

participants generally agreed that 

current U.S. law, properly interpreted, 

provides rights that are equivalent to the 

making available and communication to 

the public rights required by the WIPO 

Internet Treaties. There was 

disagreement, however, over whether 

and how particular provisions of Title 

17 may apply to various activities in the 

digital context. For example, several 

stakeholders argued that the 

unauthorized uploading of a 

copyrighted work to a shared network 

folder that is accessible to the public 

constitutes a violation of the exclusive 

right of distribution under 17 U.S.C. 

106(3). Others disagreed, arguing that 

direct or circumstantial evidence that 

another user has downloaded a copy of 

that file is necessary to establish an 

infringement of the distribution right by 

the uploader. The roundtable discussion 

and initial written comments also 

highlighted issues such as whether a 

digital file is a ‘‘material object[]’’ for 

purposes of the statutory definitions of 

‘‘copies’’ and ‘‘phonorecords’’; 4 the 

relevance of legislative history to the 

construction of the distribution right; 

the role of secondary liability theories in 

assessing the United States’ 

implementation of the relevant treaty 

provisions; and the use of evidence 

provided by a copyright owner’s 

investigator in digital filesharing cases. 

Following the Office’s roundtable 

discussions, on June 25, 2014, the 

Supreme Court decided American 

Broadcasting Cos., Inc. v. Aereo, Inc.5

The case involved a service, Aereo, that 

used thousands of dime-sized antennas 

to allow subscribers to capture and 

watch television programs over the 

Internet as the programs were being 

broadcast over the air. When a 

subscriber selected a program to watch 

on Aereo’s Web site, the system would 

create a subscriber-specific copy of the 

program that would then be streamed to 

the subscriber’s computer or Internetconnected device. The Court held that 

this activity infringed the exclusive 

right of the owners of the copyrights in 

the programs to perform those works 

publicly.6

A critical aspect of the Court’s 

decision was its interpretation of Title 

17’s ‘‘Transmit Clause.’’ That clause 

provides that the public performance 

right afforded to copyright owners 

under Section 106 includes the 

exclusive right ‘‘to transmit or otherwise 

communicate a performance . . . of the 

work . . . to the public, by means of any 

device or process, whether the members 

of the public capable of receiving the 

performance . . . receive it in the same 

place or in separate places and at the 

same time or at different times.’’ 7

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41310 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Notices 

8Aereo, 2014 U.S. LEXIS 4496, at *19 (alterations 

added). See 17 U.S.C. 101 (‘‘To ‘transmit’ a 

performance or display is to communicate it by any 

device or process whereby images or sounds are 

received beyond the place from which they are 

sent.’’). 

9Aereo, 2014 U.S. LEXIS 4496, at *28. 

10 Id. at *42 (Scalia, J., dissenting). 

Finding Aereo’s activities ‘‘substantially 

similar to those of the [cable television] 

companies’’ that Congress intended to 

reach when it updated the public 

performance right in 1976, the Court 

held that ‘‘Aereo, and not just its 

subscribers, ‘perform[ed]’ (or 

‘transmit[ted]’)’’ within the meaning of 

the statute.8 The Court further 

concluded that Aereo performed 

copyrighted works ‘‘publicly,’’ 

notwithstanding that each transmission 

was made to a single subscriber from a 

personal copy, holding that ‘‘when an 

entity communicates the same 

contemporaneously perceptible images 

and sounds to multiple people, it 

transmits a performance to them 

regardless of the number of discrete 

communications it makes.’’ 9

Justice Scalia, joined by Justices 

Thomas and Alito, dissented, 

concluding that Aereo did not 

‘‘perform’’ within the meaning of 

Section 106(4). The dissenting Justices 

reasoned that, because Aereo’s 

subscribers, not the company itself, 

selected the programs to be streamed, 

the resulting performances were not 

‘‘the product of Aereo’s volitional 

conduct,’’ and therefore Aereo could not 

be held directly liable for 

infringement.10

II. Request for Comment 

The Office invites further written 

comments on the issues raised in the 

Notice, including from parties who did 

not previously address those subjects, or 

those who wish to amplify or clarify 

their earlier comments or respond to 

issues raised during the public 

roundtable. In addition, the Office is 

interested in commenters’ views 

regarding the Supreme Court’s opinion 

in Aereo and how that opinion may 

affect the scope of the rights of making 

available and communication to the 

public in the United States. Specifically, 

commenters may wish to address the 

following questions: 

1. To what extent does the Supreme 

Court’s construction of the right of 

public performance in Aereo affect the 

scope of the United States’ 

implementation of the rights of making 

available and communication to the 

public? 

2. How should courts consider the 

requirement of volitional conduct when 

assessing direct liability in the context 

of interactive transmissions of content 

over the Internet, especially in the wake 

of Aereo? 

3. To what extent do, or should, 

secondary theories of copyright liability 

affect the scope of the United States’ 

implementation of the rights of making 

available and communication to the 

public? 

4. How does, or should, the language 

on ‘‘material objects’’ in the Section 101 

definitions of ‘‘copy’’ and 

‘‘phonorecord’’ interact with the 

exclusive right of distribution, and/or 

making available and communication to 

the public, in the online environment? 

5. What evidentiary showing should 

be required to prove a copyright 

infringement claim against an 

individual user or third-party service 

engaged in unauthorized filesharing? 

Should evidence that the defendant has 

placed a copyrighted work in a publicly 

accessible shared folder be sufficient to 

prove liability, or should courts require 

evidence that another party has 

downloaded a copy of the work? Can 

the latter showing be made through 

circumstantial evidence, or evidence 

that an investigator acting on the 

plaintiff’s behalf has downloaded a copy 

of the work? 

6. Please provide any additional 

comments or suggestions regarding 

recommendations or proposals the 

Copyright Office might wish to consider 

as it concludes its study. 

A party choosing to respond to this 

request need not address all of these 

topics, but the Office requests that 

responding parties clearly identify and 

separately address those subjects for 

which a response is submitted. 

Commenters also may address any other 

issues pertinent to the Office’s review. 

Dated: July 10, 2014. 

Karyn A. Temple Claggett, 

Associate Register of Copyrights. 

[FR Doc. 2014–16537 Filed 7–14–14; 8:45 am] 

BILLING CODE 1410–30–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice 14–071] 

NASA Advisory Council; Institutional 

Committee; Meeting 

AGENCY: National Aeronautics and 

Space Administration. 

ACTION: Notice of Meeting. 

SUMMARY: In accordance with the 

Federal Advisory Committee Act, Public 

Law 92–463, as amended, the National 

Aeronautics and Space Administration 

announces a meeting of the NASA 

Advisory Council (NAC) Institutional 

Committee. This committee reports to 

the NAC. 

DATES: Tuesday, July 29, 2014, 8:00 

a.m.–3:00 p.m., Local Time 

ADDRESSES: NASA Langley Research 

Center, 5 Langley Boulevard, Building 

2101, Room 205B, Hampton, VA 23681 

FOR FURTHER INFORMATION CONTACT: Mr. 

Todd Mullins, NAC Institutional 

Committee Executive Secretary, NASA 

Headquarters, Washington, DC 20546, 

202–358–3831. 

SUPPLEMENTARY INFORMATION: The 

meeting will be open to the public up 

to the seating capacity of the room. This 

meeting is also available telephonically 

and by WebEx. You must use a touch 

tone phone to participate in this 

meeting. Any interested person may dial 

the toll free access number 844–467– 

6272 or toll access number 720–259– 

6462, and then the numeric participant 

passcode: 415447 followed by the # 

sign. To join via WebEx, the link is 

https://nasa.webex.com/, the meeting 

number is 397 119 933, and the 

password is IC–072914; (Password is 

case sensitive.) Note: If dialing in, 

please ‘‘mute’’ your telephone. The 

agenda for the meeting will include the 

following: 

—Mission Support Overview 

—NASA IT Overview 

—Acquisition, Contracts, and Grants 

Processing Overview 

Attendees will be requested to sign a 

register and to comply with NASA 

Langley Research Center (LaRC) security 

requirements, including the 

presentation of a valid picture ID before 

receiving access to NASA Langley 

Research Center. Foreign nationals 

attending this meeting will be required 

to provide a copy of their passport and 

visa in addition to providing the 

following information no less than 10 

working days prior to the meeting: Full 

name; gender; date/place of birth; 

citizenship; visa/green card information 

(number, type, expiration date); 

passport information (number, country, 

telephone); employer/affiliation 

information (name of institution, 

address, country, telephone); title/

position of attendee. To expedite 

admittance, attendees with U.S. 

citizenship and Permanent Residents 

(green card holders) can provide 

identifying information 3 working days 

in advance by contacting Ms. Cheryl 

Cleghorn, via email at 

cheryl.w.cleghorn@nasa.gov or by 

telephone at 757–864–2497. It is 

imperative that the meeting be held on 

this date to accommodate the 

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