Flo & Eddie, who own the copyright to The Turtles' “Happy Together” and the rest of that band's music library, objected in the 2nd U.S. Circuit Court of Appeals to motions by NAB, Pandora and others to file amicus briefs in support of Sirius XM’s appeal of U.S. District Court rulings in New York that Sirius owed performance royalties on the performance of the Turtles’ pre-1972 recordings. Other parties that have petitioned to file in support of Sirius include the Electronic Frontier Foundation, New York State Broadcasters Association, Public Knowledge and two groups of law professors (see 1508060052). All seven proposed amicus briefs “are deeply flawed from a merits perspective, almost universally joining with Sirius XM in relying upon inapposite principles of federal copyright law to urge for limitations on state law property rights” or “urging the court to rule based on policy arguments instead of the actual law before it,” Flo & Eddie said Friday. They objected to proposed briefs from NAB, Pandora and the two groups of law professors, saying they “cross the line from merely being erroneous in their advocacy to not even coming close to satisfying the standard for leave being granted.” Pandora and one group of law professors “mimic” Sirius XM’s opening brief and arguments in the appeal, while NAB and the second group of law professors “raise arguments that were not raised by Sirius XM and are thus waived and not before” the 2nd Circuit, Flo & Eddie said. Amicus briefs that essentially supplicate a party’s brief “fail” to provide additional insights in a case and “should not be entertained by the courts,” Flo & Eddie said.

Daniel Marti, the White House Office of Management and Budget’s intellectual property enforcement coordinator, just approved a notice for the Federal Register soliciting feedback on what should go into the 2016 joint strategic plan on IP enforcement, he told attendees of the Technology Policy Institute meeting here in Aspen, Colorado, Monday. “Most if not all” of what went into the administration’s 2013 plan is “evergreen in nature,” Marti said. He anticipates the notice will be posted in the Federal Register in the next week or two, he said. Marti emphasized the interest in collecting data and hopes the 2016 plan continues “to be data-driven,” he said. When considering legacy achievements for his position, Marti mentioned the development of a three-year plan for IP “the deliverable that is most on my mind.”

Cisco is helping to lead the charge for a “high quality, next-generation codec that can be used everywhere” and will be royalty-free, Jonathan Rosenberg, chief technology officer in Cisco’s Collaboration business, said in a blog post. Cisco hatched the effort because “the patent licensing situation for H.265 has recently taken a turn for the worse” with the formation of “two distinct patent licensing pools” that are missing many H.265 license holders among their licensor members, Rosenberg said, referring to MPEG LA and HEVC Advance (see 1507220001). “The total costs to license H.265 from these two pools is up to sixteen times more expensive than H.264, per unit,” he said. The licensing terms of MPEG LA and HEVC Advance “preclude usage of H.265 in any kind of open source or freely distributed software application, such as web browsers” or in “freemium” software products, he said. Though H.265 “is still a good fit for hardware products,” it can’t serve as “a universal video codec across hardware and software,” he said. Code-named “Thor,” Cisco created a new codec development process that “would allow us to work through the long list of patents in this space, and continually evolve our codec to work around or avoid those patents,” he said. “Our efforts are far from complete, but we felt it was time to open this up to the world.” So Cisco “open-sourced” the code, and contributed Thor to the Internet Engineering Task Force, which has begun a standards activity to develop a next-gen royalty free video codec in its NetVC workgroup, he said. “As more technology gets contributed to this cause, the greater its chance of success.” MPEG LA and HEVC Advance representatives didn’t comment.

Limelight Networks infringed on a content delivery patent held by Akamai, the U.S. Court of Appeals for the Federal Circuit ruled in an en banc opinion Thursday. The Federal Circuit reversed a previous decision saying Limelight wasn't liable for direct infringement. "We are disappointed this outcome isn't aligned with the recent rulings in our favor," Limelight CEO Bob Lento said in a statement: "We will not allow this to distract us from serving our global customers." Limelight will study all options to determine its next steps, it said. "We are extremely pleased with the Federal Circuit's decision," Aaron Ahola, Akamai deputy general counsel, said in a statement. A jury ruled in 2008 that Limelight infringed on the patent, Akamai said, and initially awarded the company more than $45 million in damages.

Correction: The International Trade Commission is the agency that is the defendant in a case brought by ClearCorrect (see 1508100045).

A New York Times editorial urged the U.S. Court of Appeals for the Federal Circuit to reverse an International Trade Commission ruling preventing the transmission into the country of data found to be infringing on existing patents. The appeals court case, to be heard Tuesday at 10 a.m. in courtroom 201, pits dental braces alternative manufacturer ClearCorrect against the ITC in its appeal of the commission's decision to prohibit the company from receiving electronic information from its branch in Pakistan. The ITC said the company infringed patents held by industry leader Align Technology, and ruled last year to block data used to determine molds for a patient's orthodontic device being sent electronically from Pakistan to the company's headquarters in Houston. "Because it defines the limits of the commission's authority, Congress should decide whether the changing nature of international trade requires the government to apply the same rules to data that it does to physical goods," the Monday editorial said. "History suggests that it might not be sympathetic to the commission's position." The editorial also said the commission's ruling, if not struck down, "is bound to hamper the exchange of ideas and information on the Internet."

Public Knowledge urged the 2nd U.S. Circuit Court of Appeals Wednesday to rule in favor of SiriusXM in its appeal of earlier U.S. District Court rulings in New York that the company owed performance royalties to Flo & Eddie, who own the copyright to The Turtles' “Happy Together” and the rest of that band's music library, and other artists for the performance of The Turtles' pre-1972 sound recordings and other pre-1972 recordings. Public Knowledge disputed in an amicus brief that New York state has a public performance right for pre-1972 sound recordings, saying that it's up to state and federal legislatures to create such a right via legislation. “Not only is the precedent for such a right lacking, but the creation of a public performance right would also necessarily conflict with the detailed regulatory structure of the federal rights for sound recordings,” Public Knowledge said. “Contrary to the district court's assertions, such conflicts cannot be dealt with judicially; doing so would require legislation from the bench.” It's “unfortunate, but sound recordings made before 1972 lack federal protection,” Public Knowledge Vice President-Legal Affairs Sherwin Siy said in a news release. “Not only do states not have a history of preventing public performances of sound recordings; the federal laws don't either.”

Licensing of the next-gen Ultra HD Blu-ray format will formally launch Aug. 24, the Blu-ray Disc Association said in a Wednesday announcement. The start of licensing comes roughly three months after the BDA announced that work on the Ultra HD Blu-ray spec was completed (see 1505120025). The delay between the spec's completion and the start of licensing activities was to allow enough time for licensing documents to be drawn up, the BDA said. But availability of the specs in mid-May gave manufacturers the green light to begin designing products to those specs, to introduce goods in time for the holiday selling season, it said. Ultra HD Blu-ray “will enable consistent and reliable delivery of Ultra HD content” to Ultra HD TV homes, which are expected to grow to 95.6 million globally in 2019 from 11.7 million in 2014, the BDA said, citing IHS projections. The BDA is confident the next-gen format “will set the standard for Ultra HD entertainment,” much as Blu-ray did for HD viewing, said Victor Matsuda, the Sony executive who chairs the BDA’s global promotions committee.

The Information Technology Industry Council (ITI) wants changes made to the Innovation Act (HR-9) -- patent reform legislation set to be voted on in the full House, said a letter to House leaders Wednesday. The letter, signed by ITI CEO Dean Garfield and sent to House Speaker John Boehner, R-Ohio, and House Minority Leader Nancy Pelosi, D-Calif., supported the bill but suggested language should be added to "require plaintiffs [in patent lawsuits] to identify each claim of each patent that is allegedly infringed." Garfield also urged the House to remove a portion of the legislation that would make changes to the U.S. Patent and Trademark Office's patent review proceedings, saying the changes would harm patent quality.

The market, not the patent pool, “ultimately determines” whether a patent pool strikes a “fair balance” between patent holders and patent users, and “reasonable royalties are key,” an MPEG LA spokesman emailed us. He was responding to HEVC Advance’s disclosure Wednesday of its patent pool royalty and pricing terms (see 1507220001) that were multitiered and much more expensive than what the MPEG LA patent pool charges for the use of the HEVC codec. Like the other patent pools that MPEG LA runs, the MPEG LA spokesman said, the goal of its HEVC patent pool “is to incorporate as much essential intellectual property as possible under one license for the benefit of the marketplace.” Participating licensees and patent holders “are required for a pool license to be widely accepted,” and to “achieve wide acceptance, both must receive value,” the MPEG LA spokesman said. “Patent holders must receive value in order to be willing to make their valuable intellectual property widely available under a pool license, and licensees must receive value in order to be willing to pay for its use.” MPEG LA manages licensing programs with 10,000 patents in 80 countries with 200 patent holders and 6,000 licensees, the representative said.