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By Blake Brittain
Feb. 18 — A radio station did not have standing for a declaratory judgment on whether “geo-fencing” its Internet radio broadcasts within a 150-mile radius would exempt it from the Copyright Act's statutory license requirement, the U.S. District Court for the Western District of Virginia ruled Feb. 13.
The court determined that there was no actual controversy because the station had only “consulted with geo-fencing experts and service providers,” and had not taken any steps to actually implement the technology, which would have constrained the station's Internet broadcasts within a specific geographic area.
WTGD 105.1 FM, a radio station near Harrisonburg, Va., did not have a statutory license required by the Copyright Act (in lieu of paying royalties directly to copyright holders) to “willfully or repeatedly” broadcast copyrighted sound recordings “more than a radius of 150 miles from the site of the [station's] radio broadcast transmitter,” 17 U.S.C. §114(d)(1)(B)(i).
Counsel for the station's owner, VerStandig Broadcasting, contacted SoundExchange Inc., the nonprofit that collects royalties on behalf of the Copyright Royalty Board, saying that WTGD intended to “geo-fence” its Internet broadcast to within a 150-mile radius, which it argued would exempt the station from the statutory license requirement.
SoundExchange disagreed, citing a Copyright Office opinion that the 150-mile exemption did not apply to Internet radio transmissions.
In response, WTGD filed for a declaratory judgment that geo-fencing would make the station eligible for the exemption. SoundExchange filed motions to dismiss, and a magistrate judge recommended dismissal of the complaint for lack of standing.
The district court agreed with the magistrate judge's determinations and dismissed the case, saying that WTGD's allegations were “too speculative, indefinite and hypothetical to allow the court to make a judgment as to whether the proposed broadcasts will result in copyright infringement or not.”
“At this point, there are no facts alleged upon which the court could decide whether or not broadcasts done via this as yet untried technology will fall within the 150-mile statutory exemption,” Judge Michael F. Urbanski said.
“Absent the existence of facts as to whether the proposed geofenced retransmissions ‘willfully or repeatedly' transgressed the 150-mile boundary, there is no actual case or controversy to decide,” the court said.
The court said that WTGD's “geo-fencing” plan was not concrete enough to create a justiciable case or controversy.
“The stations have done little or nothing to demonstrate that geofencing is anything more than a pipe dream,” the court said. “The stations have done nothing to implement the technology or demonstrate that geofenced retransmissions will meet the § 114 exemption. Rather, they allege only that they have ‘consulted with geo-fencing experts and service providers.' ”
The court added that SoundExchange's disagreement with WTGD also did not create a real controversy.
“The court agrees with the magistrate judge that, at most, SoundExchange’s letter failed to assure the stations they would not face any legal challenges,” the court said. “Such a ‘refusal to give assurances' does not ‘create an actual controversy.' ”
The court also determined that copyright owners, not SoundExchange, were the proper defendants because the prospective injury was copyright infringement, not breach of a SoundExchange statutory license.
WTGD was represented by Bryan M. Killian of Morgan Lewis & Bockius, Washington. SoundExchange was represented by David Stan Barnhill of Woods Rogers & Hazlegrove PLC, Roanoke, Va.
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