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

1 Study on the Right of Making Available; Comments and Public Roundtable, 79 FR 10571 (Feb. 25, 2014).

2 WIPO 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.

3 See Making Available Study, U.S. Copyright Office, http://www.copyright.gov/docs/ making

_ available/. 4 See 17 U.S.C. 101.

5 573 U.S.

___ , No. 13–461, 2014 U.S. LEXIS 4496 (June 25, 2014).

6 See 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 thepublic 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 tothe 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


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

8 Aereo, 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.’’).

9 Aereo, 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