June 2014

Supreme Court Ends Aereo’s Technology-Driven Attempt to Disrupt the Traditional Network TV Model

June 27, 2014

[Cross-post from BostInno] In the end Aereo’s dime-sized antennas and subscriber-specific copies of television broadcasts – its “Rube Goldberg” attempt to find a loophole that would allow it to stream TV over the Internet – were not enough to win over a majority of the Supreme Court. On June 25, 2014, the Supreme Court held that Aereo’s streaming service violated the exclusive right of copyright owners to “publicly perform” their works. Aereo had used diabolically clever technology (or so the broadcasters claimed) in its attempt to avoid this outcome, which seems very likely to force Aereo out of business. As I have described in detail elsewhere, Aereo’s system – which would have been unimaginable and cost-prohibitive only a few years ago – relied on thousands of antennas and massive, low-cost hard disk storage. Advances in antenna technology allowed Aereo to assign a separate micro-antenna to each paid subscriber. The plummeting cost of digital storage allowed Aereo to save a separate copy of each broadcast transmission for each subscriber that wanted to save a copy. Aereo’s argument was that for any singe subscriber this was no different (legally speaking) than accessing a broadcast using a rooftop TV antenna connected to a DVR in the living room. In effect, Aereo claimed, each subscriber had outsourced the antenna and the remote DVR to Aereo’s central facility, and Aereo was no more than an…

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Aereo and the Cloud Before the Supreme Court

June 21, 2014

This is a catch-up post on oral argument in ABC v.  Aereo, which was held on April 22, 2014. The Supreme Court’s 2013-2014 term is almost over, and we can expect to receive the Court’s decision in Aereo on June 23rd or 30th. A great deal has been written about whether Aereo’s TV -to-Internet service violates the TV networks’ public performance right under the transmit clause of the Copyright Act. By comparison, less has been written about the implications of the case for “cloud computing” and “cloud lockers.”* *note: the “cloud” is simply a metaphor for data and computing power accessed via the Internet. When the Aereo case was argued before the Second Circuit Court of Appeals in November 2012 the “cloud” was not mentioned once. (transcript) However, by the time the case reached oral argument before the Supreme Court in April 2014 cloud computing — or the implications of a Supreme Court decision in Aereo on cloud computing — seemed to have become the focus of the case. Amicus briefs supporting Aereo predicted dire consequence for cloud computing if the Court ruled in favor of the networks,* and the “cloud” is mentioned more than 30 times in the argument transcript, *note: For example, one amicus brief supporting Aereo warned of “unintended consequences” and argued that the tests proposed by the networks, their amici and the United States “are unworkable and…

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CopyrightX Certificate

June 16, 2014

I am proud to have been a member of the CopyrightX class of 2014. If you have any doubts about the merits of online education, apply to take this course in 2015. You will be pleasantly surprised at how effective this form of education can be.

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Google Book’s Little Sibling (HathiTrust) OK’d by Second Circuit Under Fair Use

June 13, 2014

While The Author’s Guild copyright suit against Google Books has received most of the attention on the copyright law front, its smaller sibling – the Author’s copyright suit against HathiTrust – has been proceeding on a parallel track. HathiTrust is a consortium of more than 70 institutions working with Google to digitize the books in their libraries, but a smaller number of books than Google Books (only ten million), and for academic use (including an accommodation for disabled viewers), compared with Google Books’s commercial use. On June 10, 2014, the Second Circuit upheld the federal district court, holding that HathiTrust is protected from copyright infringement under the fair use doctrine. With respect to full-text search (the most legally problematic aspect of HathiTrust), the Second Circuit held: “[T]he creation of a full‐text searchable database is a quintessentially transformative use” because it serves a “new and different function.” The nature of the copyrighted work (the second factor under fair use analysis) is “of limited usefulness where as here, ‘ the creative work … is being used for a transformative  purpose.’” The copying was not excessive since “it  was reasonably necessary for [HathiTrust] to make use of the entirety of the works  in order to enable the full‐text search function.” And lastly, “full‐text‐search use poses no harm to any existing or potential traditional market” since full-text search “does not serve as a substitute for the books that are being searched.” Citing HathiTrust’s…

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Supreme Court Reverses 9th Circuit in Raging Bull Copyright Case

June 11, 2014

The idea behind statutes of limitations is usually straightforward. If someone commits an illegal act, after a certain period of time they can no longer be liable (or prosecuted) for that act. In civil cases the statute of limitations usually begins to run when the injured party knew or should have known of the illegal act. Once that period has passed, the injured party is barred from filing a lawsuit. For example, in Massachusetts the statute of limitations for most tort actions is three years. If you are the victim of a tort (for example, medical malpractice), you must file suit within three years of the act that caused you harm, or you likely are barred by the statute of limitations.* *note: Like almost everything in the law, there are exceptions and nuances to this. The U.S. Copyright Act contains a three year statute of limitations (17 U.S.C. Section 507),* but the way in which the statute is applied is different. A copyright holder may know that a defendant has been selling an infringing product for more than three years, but that doesn’t bar an action for copyright infringement – the defendant may still be liable for any infringing conduct taken during the three year period before the suit was filed. This is described as a “three-year look back,” a “rolling limitations period” or the “separate-accrual rule.”** *note: The statute…

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Supreme Court Overrules CAFC In Limelight v. Akamai

June 4, 2014

In September 2012 I wrote a post titled Why Can’t We All Get Along? CAFC Fractures Over Divided Infringement. The post discussed an August 31, 2012 Court of Appeals for the Federal Circuit (“CAFC”) en banc decision in two cases consolidated on appeal, Akamai v. Limelight and McKesson v. Epic Systems (link). As I described in that post, the 11 judges on the CAFC, were unable to agree on whether patent infringement occurs when separate entities perform the steps of a patented method. Six of the CAFC judges — a bare majority — formulated a new doctrine of “induced infringement”: a party can be liable for inducing infringement if it either (1) induces several parties to jointly carry out the steps necessary for infringement, or (2) performs some of the steps of the claimed method itself and induces a third party to perform the remaining steps claimed. In other words, the CAFC held that all the steps of a claimed method must be performed in order to find induced infringement, but all the steps need not have been performed by a single entity. The losing parties before the CAFC appealed to the U.S. Supreme Court, which accepted review of the case, and which had no trouble holding (unanimously) to the contrary. A defendant cannot be held liable for inducing infringement of a patent method claim when no single entity has directly infringed the claim, and direct infringement is not established…

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