Author: Max Hacker

Aereo goes on the offensive with broadcasters

It appears as if Aereo is tired of being on the defensive. In a complaint filed in a U.S. District Court in New York, the embattled Internet streaming service has sought a declaratory judgment that its technology, which allows its customers to stream free, over-the-air broadcast TV via the net on their computers and other devices, does not infringe broadcasters’ copyrights. Here’s a quick recap of the Internet streaming saga if you haven’t been following along: In recent years, the broadcast television networks (i.e. Fox, ABC, CBS, NBC Universal) have fought in court to prevent services like Aereo from streaming what they assert is their protected television content over the net to paying subscribers without consent from copyright owners. On April 3, the U.S. Second Circuit Court of Appeals upheld a lower court decision denying the networks’ request for a preliminary injunction against Aereo’s service. Plaintiffs in that case since have filed a petition for a rehearing en banc. Meanwhile, the U.S. Ninth Circuit Court of Appeals is set to decide whether to uphold a lower court decision that granted plaintiffs’ request for preliminary injunction against a similar streaming service. The jurisdictional split is pivotal: As a result of its Second Circuit victory, Aereo CEO Barry Diller announced that by May 15, the company would expand to Boston, located in the First Circuit, a jurisdiction that has yet to rule on the legality of the business’ operations....

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Round 3 goes to YouTube in Viacom slug fest

For the second time in four years, U.S. District Judge Louis L. Stanton in New York has granted summary judgement to defendant YouTube in a long-running copyright infringement suit filed by Viacom, Inc. That ruling came after the U.S. Court of Appeals for the Second Circuit had reversed Stanton’s initial summary judgment, with the appellate judges finding that a reasonable jury could decide that YouTube either had “knowledge or awareness” of infringing clips of Viacom’s shows on its website or that it was “willfully blind” to infringement taking place. In the district court’s latest decision, Stanton again held that YouTube was protected by the  Digital Millennium Copyright Act’s “safe harbor” provision, Section 512 (c). He essentially found that the burden rests on copyright owners to locate infringing content, and when they do so, they or their agents must send online service providers notices seeking to take down disputed material. Section 512 (c)(3)(A) lists six requirements for an adequate take down notice. YouTube is not the only provider sheltered under the DMCA. Should it protect websites like YouTube to this extent? Absolutely. The sheer volume of content on YouTube (24 hours of video are uploaded to YouTube every minute) makes it onerous, nigh impossible, for a provider, arguendo, to police the site for infringing material. Indeed, YouTube showed the court 63,000 clips found to be infringing, then insisted that Viacom demonstrate that it had properly challenged each. And at...

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Developer of `Section 8′ zapped on appeal

The U.S. Court of Appeals for the Fifth Circuit in New Orleans has upheld an arbitrator’s award to Gamecock Media Group, a publisher, for fraud and breach of contract by TimeGate Studios Inc., a video game developer. The appellate decision reversed a lower federal court in Texas, which held that the arbitrator’s grant to publisher of a perpetual license in the video game, Section 8, was not in line with the parties’ underlying contract. In 2007, Gamecock (since acquired by Southpeak Interactive LLC) entered into a video game publishing agreement with TimeGate, where the developer owned the game’s intellectual property. Gamecock was granted an eight-year worldwide license, prohibiting it from making derivative works or exploiting Section 8 in any way not in accord with the contract. Soon after the game was released in 2009, the parties’ relationship fell apart, leading to arbitration. The arbitrator ruled that TimeGate committed fraud and breach of contract. It pocketed money that Gamecock had invested in the product and never put sums into the game as the developer was obliged to, nor did it ever intend to, said the arbitrator, who awarded the publisher $7.35 million in damages. Gamecock also was granted a perpetual license in the game’s intellectual property, without paying royalties to TimeGate. The district court vacated the arbitrator’s award, finding it inconsistent with the “essence” of the 2007 contract, which only granted Gamecock a temporary license. The Fifth Circuit...

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A million reasons why FCC resets indecency rules

Since the U.S. Supreme Court decided FCC v. Fox Television Stations Inc.  in September, the Federal Communications Commission says it has reduced its complaint backlog by 70 percent, an astounding 1 million beefs, largely by taking on only egregious cases and discarding complaints for other reasons including timeliness and pertinence. The federal broadcasting watchdog also has announced that it is investigating whether its indecency policies conform with the First Amendment. The agency this week released a Public Notice seeking comments on how to approach “isolated expletives” (aka fleeting expletives). The FCC is seeking public comments on which approach it should adopt on these on-air no-nos: the Pacifica approach (requiring deliberative and repeated use of expletives in a patently offensive manner) or the FCC’s 2004 Memorandum Opinion and Order about the Golden Globe Awards (finding indecency for single use of expletive depicting or describing sexual activities). The agency also sought views on whether isolated, nonsexual nudity should be treated similarly to isolated expletives. The FCC’s latest approach could be a boon for broadcasters as the agency seems to be reevaluating its policies and focusing on the worst cases. That may be because broadcasters have proven successful in recent indecency cases. Still, the agency’s moves drew immediate fire from parents’ groups and conservatives. Judge for yourself if a single expletive should warrant a fine for broadcasters, as occurred when U2’s Bono accepted a Golden Globe award;...

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‘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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