Author: Max Hacker

‘Aereo’ streams past broadcasters’ appellate test

Internet content-streaming has scored an important, albeit predictable victory, in the international fight over broadcast television control: The U.S. Second District Court of Appeal, as expected on Monday,  affirmed a lower court decision to deny a preliminary injunction filed by broadcasters against Aereo, the upstart net-streaming company launched by media mogul Barry Diller. In the 2-1 ruling, the appellate judges echoed the district court’s holding: Aereo is not publicly performing work because subscribers make single, unique copies and the audience for each copy is that single subscriber. The court rejected all of the plaintiff’s arguments, relying heavily on the Second Circuit precedent set in Cablevision. In contrast, the appellate dissent by Judge Denny Chin, agreed with plaintiffs that there are significant differences between this case and Cablevision. Most importantly, his dissent points to Cablevision, wherein the defendant operated its DVR system on a belief that it could do so because of its underlying, compulsory license with broadcasters, pursuant to Section 111 of the Copyright Act of 1976. In contrast, Aereo operates its net-streaming service sans any license to show broadcast television content. Chin’s dissent also views the act’s “transmit clause” broadly, finding “any device or process” to include Aereo’s system. Aereo — which some analysts say may be a means by which consumers unhook themselves from cable systems and costly subscriptions and for which Diller is discussing an expansion — employs complex technology, with dozens of individual antennas, a...

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Shooter seeks late, game-changing photo claims

If you shot this memorable, widely seen photograph capturing in real life one of the legendary poses in football, would you wait two decades to protect it and only then start to chase down those who you think wrongly used it without your permission? And what would be your legal chances of prevailing in litigation over it? Here’s a copyright infringement case that many wouldn’t make book on and that provides some key reminders to those in music, film or words who want protections for their creative works that, as in football contest, the clock can be a killer. The eye-catching 1991 image of Desmon Howard, a onetime Michigan star, has become the legal football in a suit filed in January in a U.S. District Court in Detroit. After scoring a touchdown, Howard struck the pose that fans know best because it’s similar to that of the coveted Heisman Trophy, the collegiate game’s top honor that he would later claim. Photographer Brian Masck caught that perfect moment, earning $500 and a credit line when his picture originally appeared in Sports Illustrated. Masck now is suing SI, Howard and others for using the image for commercial purposes without permission, credit or payment. But did he dally too long to make his claim most effective? Masck waited until 2011 to register a copyright for the photo. Per Section 507 of the Copyright Act, the statute...

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Does first-sale ruling affect entertainment law?

The U.S. Supreme Court, in Kirtsaeng v. John Wiley & Sons, recently held that foreign-produced copies of works protected under U.S. copyright law are subject to the “first sale” doctrine. The doctrine, codified at Section 109 of the Copyright Act, gives the copyright owner the right to sell each copy of the work once, allowing for free transfer of that copy beyond the initial sale. The ruling is bad for U.S. publishers, who now have less control over distribution of their works. But what is the decision’s impact on entertainment law practitioners, if any? Gordon Firemark, a Los Angeles entertainment attorney and blogger, notes concern from industry officials that the ruling makes it more difficult for U.S. businesses to compete abroad. On the other hand, others note that the decision will enable U.S. businesses to purchase goods abroad and resell them in the U.S., fostering a legal “grey market.” This blog posted previously on this case with excellent background on some of the competing interests. Taking either perspective, the decision is good for consumers because it should result in cheaper goods. Also, the ruling forces U.S. companies to reconsider international price discrimination. And despite amicus briefs by the music industry, forecasting dire consequences if the court ruled as it did, at least some analysts don’t see such gloomy results from this decision. Finally, it’s important to mention that the Kirtsaeng decision applies only to authorized copies, i.e. ones pursuant...

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Justices decline streaming, downloading cases

The U.S. Supreme Court has denied certiorari in two cases with entertainment law significance: the ivi streaming case from the U.S. Court of Appeals Second Circuit and the Thomas-Rasset illegal music downloading case out of the Eighth Circuit. The ivi case concerns Internet streaming of broadcast television (discussed here and here before), while Thomas-Rasset involves illegal music-download damages, similar to the now-infamous Joel Tannenbaum case (discussed here). The high court’s decision on Monday to decline the ivi case leaves in place the Second Circuit’s injunction against the firm’s service allowing subscribers to stream free, over-the-air broadcast television programming via the net. Although the justices’ refusal generally favors broadcasters in the net-streaming saga, it probably does little to impact appeals in Aereo (Second Circuit) and Aereokiller (Ninth Circuit). Those cases tackle whether such streaming services violate the broadcaster copyright owners’ Section 106 (by way of Section 101) public performance rights; ivi, on the other hand, focused on whether that firm qualified as a “cable system” to opt in to a compulsory license pursuant to Section 111 of the Copyright Act. Despite the differences, refusing to hear ivi‘s case could indicate a disinterest for now by the court to take on the streaming issue at all. Justices also declined an appeal by Jammie Thomas-Rasset, a Minnesotan hit with $220,000 in damages for music she illegally downloaded. She has claimed that she cannot afford to pay damages levied against her and affirmed by the Eighth Circuit. She, perhaps, might have taken the course...

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Another pyrrhic victory for video-sharing firm

The U.S. Court of Appeals for the Ninth Circuit has upheld Digital Millenium Copyright Act “safe harbor” protection for video-sharing service Veoh, revisiting a case initially decided in 2011 in light of the Second Circuit’s decision in Viacom v. YouTube. The statutory provision at issue is Section 512(c) of the DMCA. That section insulates service providers’ from liability for infringement resulting from the “storage at the direction of a user” of copyrighted content on their website. In the opinion, plaintiff Universal Music Group made two unsuccessful arguments. First, it asserted that the safe harbor provision only applies to “storage” sites, not including websites that allow other hosting activities. The court rejected this theory, pointing out that sites that allow users to store content, like Veoh, do so to allow others to access that content. In the words of a brief filed by the Electronic Frontier Foundation, Universal’s idea of a site that falls under Section 512(c) protection is nothing more than an “online back-up service.” If this were Congress’ intent, the provision would be useless for most service providers. Second, Universal argued that, regardless of take-down notices, Veoh should have seen “red flags” that copyright infringement was occurring on its site. Courts have been reluctant to buy the Section 512(c)(1)(A)(ii) “red flag” argument, particularly in lieu of actual take-down notices. Here, the court noted that copyright holders were better positioned to detect infringement and report it than Veoh, a start-up that...

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The Biederman Blog is now ranked NUMBER ONE on Feedspot's Top 20 Entertainment Law blogs (May 2018). It is very exciting to top this list. We are extra proud of number six - Entertainment Law Offices of Gordon P. Firemark. Mr. Firemark graduated from Southwestern in 1992, and is a top entertainment blogger and webinar presenter in addition to being a world class entertainment attorney!

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