by Lee Gesmer | Oct 2, 2013 | Copyright
The Supreme Court accepts fewer than 1% of the requests for review submitted to it, and review of copyright cases is relatively rare.* Yesterday, the Court accepted review (or, in lawyer-speak, granted a “petition for writ of certiorari”) in Petrella v. Metro-Goldwyn-Mayer, Inc.
*Based on my quick count, the Court has decided 15 copyright cases since 1985.
Since 1981 Paula Petrella has been the owner (by way of copyright reversion and inheritance) of her father Frank Petrella’s copyright interest in a book and two screenplays about the life of Jake LaMotta, the central character portrayed in the film Raging Bull. She claims that Raging Bull is a derivative work of the book and screenplays, and that she is entitled to royalties based on MGM’s continuing commercial use of the film.
Ms. Petrella threatened MGM with a suit for copyright infringement as far back as 1998, but she didn’t actually file suit until 2009. In fact, Raging Bull was released in 1980, and there is evidence that Ms. Petrella was aware of her copyright infringement claim as far back as 1981, in which case she delayed for almost 30 years before filing suit for copyright infringement.
The U.S. Copyright Act contains a three year statute of limitations, and this has been interpreted not to mean that that a copyright owner must bring suit within three years of learning of an infringement, but that if a copyright owner does bring suit, the owner can recover damages only for the preceding three years of unauthorized use.
However, there is a non-statutory or “common law” legal principle known as “laches” (a bothersome term derived from French law), that states that a party may not unreasonably delay in pursuing a legal right of action. MGM invoked this doctrine, arguing that Ms. Petrella’s 18-year delay in bringing the suit was unjustifiable, and resulted in substantial prejudice to MGM. The Ninth Circuit agreed, and dismissed Ms. Petrella’s case.
The issue presented in Ms. Petrella’s appeal to the Supreme Court is whether the nonstatutory defense of laches is available without restriction to bar all remedies for civil copyright claims, including the copyright statute’s “trailing” three-year statute of limitations. In other words, can laches trump the copyright statute’s three year statute of limitations?
The appeal drew an amicus brief from the California Society of Entertainment Lawyers, which not only argued in favor of Supreme Court review of the narrow issue raised by this case, but criticized the “Ninth Circuit’s broader hostility to copyright plaintiffs – specifically, creators filing suit against conglomerates within the entertainment industry for violation of their intellectual property rights.”
Truthfully, setting aside its tie-in to the film Raging Bull (frequently listed as one of the greatest films of all time) and Robert De Niro (back when he was selective about his choice of movie roles), this is not a copyright case of earthshaking importance. Defendants raise the laches defense infrequently, since most copyright plaintiffs act within a reasonable period of time to enforce their rights. Why did the Court agree to take this case? Because the closest thing to a guarantee of review by the Supreme Court is a circuit split, and that is what Ms. Petrella was able to present in this case. Three circuits forbid any application of laches to restrict copyright damages, two circuits permit it only in exceptional circumstances, and the Ninth Circuit not only applies laches in copyright cases, but has adopted a presumption in favor of applying laches to continuing copyright infringements. Apparently, these divisions within the federal circuit courts were enough to convince the Supreme Court that it was time to step in and resolve the circuit split.
More to come, as the parties file their merits briefs, and the Court hears argument sometime early next year, with a decision expected before the 2013-2014 term ends in June.
Decision under review: Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946 (9th Cir. 2012)
SCOTUSblog page on Petrella case
by Lee Gesmer | Sep 30, 2013 | Copyright
What legal standard should the courts use to penalize a copyright owner for sending a copyright takedown notice that results in the takedown of a copy protected by fair use? This issue has come up infrequently since the Digital Millennium Copyright Act (DMCA) was enacted in 1998, and never in the First Circuit, but now it is pending in two cases before different federal district court judges in Boston, one of which has reached a conclusion early in the case.
The Issue
Copyright owners complain that they are disadvantaged by the DMCA, which requires them to target copyright-protected works that are posted repeatedly on sites such as Youtube. While takedowns impose a cost burden on sites like Youtube, that host a large volume of user generated content, the cost to the copyright owners is probably much greater. After all, the owners need to repeatedly locate the works and send notices. As I commented in a 2010 post, this Sisyphean task has proven to be an endless game of whack-a-mole for copyright owners, one that Congress could not have anticipated when it enacted the DMCA in the 1998 pre-filing sharing/pre-Youtube era.
However, the DMCA “takedown notice/counter-notice” regime has the potential to be a double-edged sword. What if the takedown notice targets a copyrighted work in circumstances where the use is protected by the copyright fair use doctrine? For example, what if a user posts a short excerpt from a document for purposes of political commentary or for non-commercial, educational purposes (both are classic examples of fair use), only to have the author misuse the DMCA and send a takedown notice to the web host? And, while the DMCA gives the poster the right to have the web host “put back” the item (subject to a sites’ own policies),* most people are too fearful of becoming involved in an expensive legal imbroglio to exercise the “put back” procedure and risk a lawsuit.
*The DMCA requires Internet service providers to notify a subscriber if its materials have been removed and to provide the subscriber with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. If a subscriber provides this “counter-notice” the service provider must then notify the claiming party of the objection. If the copyright owner does not bring a lawsuit within 14 days, the service provider may restore posting. For Google’s policy on restoring works following a copyright removal notice, see its Copyright Removal Transparency FAQ, here.
The Law
Given this dynamic, what disincentive does the law create for copyright owners who exploit the DMCA takedown law to smother the fair use of copyrighted works?
The answer is found in Sections 512(c) and (f) of the DMCA. Section 512(c) requires that a takedown notice contain a “statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” To provide a disincentive for takedown notices that fail this requirement, Section 512(f) imposes liability, including costs and attorney’s fees, on “any person who knowingly materially misrepresents under this section that material or activity is infringing.”
However, like so many issues in the law, this statute is subject to different interpretations by different groups in the Internet and content provider communities. One significant interest group (represented by the Electronic Frontier Foundation and the Digital Media Law Project), argues that the copyright owner must “actually evaluate whether a given use is authorized by law” — and specifically the law of fair use — “before sending a takedown notice.”
An opposing interest group (represented by the Motion Picture Association of America), argues that a copyright owner must be shown to have had an actual, subjective belief that he is making a material misrepresentation of infringement before being subject to liability.
The two interest groups have already clashed in one of the two Massachusetts cases discussed below, and are certain to do so in the second case when the issue arises.
The Massachusetts Cases
Tuteur v. Crosley-Corcoran. I’ve written posts about the two pending District of Massachusetts cases that raise this issue. One case involves an essentially private dispute that got out of hand between two bloggers who have opposing views on the safety of home birthing (Tuteur v. Crosley-Corcoran). In this birthing-methods bloggers war Ms. Crosley-Corcoran crudely expressed her views to Dr. Tuteur by posting on Crosley-Corcoran’s website a picture of herself flipping Tuteur the bird.
Dr. Tuteur copied the image onto her own website (apparently thinking that Ms. Crosley-Corcoran’s argumentation by digitus impudicus actually favored Dr. Tuteur). However, Ms. Crosley-Corcoran owns the copyright in her selfie, and she countered by sending a DMCA takedown notice to Dr. Tuteur’s web host. Tuteur responded by filing suit in Massachusetts, asserting that she had made fair use the image, and therefore Ms. Crosley-Corcoran’s takedown violated the DMCA.
Lessig v. Liberation Music. The second Massachusetts case involves a lecture by Harvard Law Professor Larry Lessig, in which he used fan videos of the song “Lisztomania” by Phoenix to illustrate the creativity unleashed by the web. Liberation Music, the copyright owner, served a takedown notice on Youtube (the web host), and Lessig filed suit under the DMCA, asserting that his use of the song was fair use, and therefore Liberation Music had violated the DMCA.
In both cases there is a strong (indeed, a very strong) argument that the use of the copyrighted work is protected by fair use.* The issue, therefore, is whether the copyright owners violated Section 512(f) of the DMCA by “materially misrepresenting” that the use of their works was infringing.
* It’s worth observing that fair use often is a thorny legal issue that must be decided on a case-by-case basis.
Judge Stearns’ Holding In the Tuteur Case
The Lessig case is just getting started, and there have been no motions that would require the court in that case to decide the standard for judging an allegedly improper takedown notice. However, Crosley-Corcoran filed a motion to dismiss in the Tuteur case, arguing that Dr. Tuteur could not establish that her takedown notice was sent without a good faith belief that use of the material in the manner complained was not authorized.
Crosley-Corcoran’s motion, which was supported by an amicus brief from the MPAA, argued that the proper standard required the copyright owner to have “actual, subjective knowledge” that he or she is materially misrepresenting that the use of the material is infringing.
Dr. Tuteur, in turn, was supported by an amicus brief jointly submitted by the EFF and the DMLP. They argued that the DMCA required the copyright owner to “evaluate or consider” whether the material made fair use of the copyright before sending a takedown notice.
Massachusetts Federal District Court Judge Stearns issued his decision on Crosley-Corcoran’s motion in early September 2013. After reviewing the thin case law and legislative history on the the issue, he rejected the standard proposed by Tuteur and the EFF/DMLP, and followed the holding in a 2004 9th Circuit case (Rossi v. Motion Picture Ass’n of America), which held that the DMCA requires “a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner” before finding a misrepresentation. Judge Stearns stated –
in enacting the DMCA, Congress did not require that a notice-giver verify that he or she had explored an alleged infringer’s possible affirmative defenses prior to acting, only that she affirm a good faith belief that the copyrighted material is being used without her or her agent’s permission. … Undoubtedly abuses will occur … If experience ultimately proves that the remedy is weighted too heavily in favor of copyright owners at the expense of those who seek to make “fair use” of another’s intellectual property, the resetting of the balance is for Congress and not a court to strike.
However, he did not dismiss Tuteur’s case against Crosley-Corcoran. The allegation in Tuteur’s complaint that Crosley-Corcoran had engaged in a “knowing and material misrepresentation” was sufficient to keep the case alive, at least for now.
What Does It All Mean?
The legal standard reached by Judge Stearns is no surprise. He hinted that he saw the law this way earlier in the case, and Dr. Tuteur, along with the EFF and the DMLP, were unable to convince him otherwise. And, it’s easy to see why.
It would place an enormous burden on large publishers to replace what has become overwhelmingly an automated or semi-automated takedown system* with one that requires each potential infringement to be evaluated for possible fair use. Some of the hits, possibly even a substantial number, would require a legal consultation to evaluate fair use (something that is often a difficult judgment call, even for trained lawyers). Judge Stearns is correct that nothing in the language of the statute, or its legislative history, suggests that Congress intended that the takedown procedure be escalated to this extreme.
*Google publishes a “Copyright Removal Transparency Report” which shows that it receives upwards of 4 million takedown notices every week. Obviously, most of these are the product of an automated process. Google discusses inaccurate or intentionally abusive copyright removal requests here.
And, while the harm to a poster is not non-existent, the poster can provide a counter-notice requesting the host to put the work back up. At that point the copyright holder will have 14 days to file suit to force a takedown, a step that would motivate most copyright holders to consult an attorney and determine whether the takedown is meritorious, or whether there is a fair use defense. In other words, the original poster can use the counter-notice to call the copyright owner’s bluff.
My biggest concern with the position taken by Tuteur and the EFF/DMLP is the legal standard they urged the judge to adopt: that the copyright owner must have “evaluated or considered” fair use before sending a DMCA takedown notice.* This standard does not eliminate a subjective decision by the copyright holder. In arguing for this standard the Tuteur parties did not argue that a copyright owner be required to consult a lawyer before sending a takedown notice. Therefore, even under their proposed standard a copyright owner can briefly “consider” fair use, reject it (rightly or wrongly) and thereby satisfy this legal test. At best, the “evaluate or consider” test would prevent large publishers from utilizing automated takedowns, since most of the millions of takedown notices sent every week would have to be viewed by a person, even for a few seconds, in order to “consider” the nature of the use.
*While the EFF and DMLP do cite a case in which the court described an objective “knew or should have known” standard (Online Policy Group v. Diebold), they do not advocate that the court adopt this test.
Clearly, Judge Stearns was unwilling to impose this burden on copyright holders. However, the standard adopted by the court — actual knowledge of misrepresentation — will be very difficult for most recipients of takedown notices to meet in cases where there is a fair use defense, and thus Section 512(f) of the DMCA will, under this decision, remain toothless in practice.
What does this mean for the other DMCA fair use takedown case pending in Massachusetts, Lessig v. Liberation Music? That case has been assigned to Judge Nathaniel Gorton. It seems very unlikely that Judge Gorton will see this issue differently than his colleague, Judge Stearns, and therefore I expect a similar ruling from Judge Gorton, should Lessig v. Liberation proceed to that stage of litigation.
Tuteur v. Crosley-Corcoran (D. Mass. Sept. 10, 20130
by Lee Gesmer | Sep 10, 2013 | Copyright
Embedded below is an article I wrote for Massachusetts Lawyer’s Weekly that was published in the paper’s September 9, 2013 issue. A link to the article on MLW’s website is here (subscription required). A link to the original article in an easier to read format is here.
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by Lee Gesmer | Sep 6, 2013 | Copyright
The Cyberspace Lawyer was nice enough to take the four-part article on the Aereo copyright case that I published earlier this summer (Part 1 here), combine it into a cohesive whole and publish it in their August issue. The article is embedded below via scribd. A direct link to the article is here.
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by Lee Gesmer | Aug 29, 2013 | Copyright
Harvard Law School professor Larry Lessig must have fallen off his chair in disbelief when he learned that Liberation Music, copyright owner of the song Lisztomania, recorded by Phoenix, had used the DMCA to force Youtube to remove the video of a lecture by Lessig that included video remix examples of this song. He soon straightened up and filed what could become an interesting test case involving wrongful DMCA takedown notices and copyright fair use.
However, in the process he suffered something of a legal stutter-step that may come back to haunt him in this case. Assuming, that is, that Liberation Music doesn’t come to its senses and settle this case faster than you can say “world-renown copyright lawyer with deep resources handed slam-dunk case by naive copyright holder.”
The original “brooklyn brat pack mashup” video of Lisztomania, an amateur music video which remixes the song and scenes from the 1985 movie The Breakfast Club, has been the subject of countless amateur remixes (the “brat pack videos”) that are easily accessible on the Internet. Incredibly it is this very phenomenon — remixes of videos of this song — that Lessig has used in dozens of presentations* to illustrate the culture of creativity released by the Internet. And, implicit in his use of this example is that it is transformative, and therefore permissible under copyright fair use.
*Here is another one on Youtube that has not been taken down. This lecture contains a 47 second clip of Lisztomania, as long as anything in the video targeted by Liberation Music.
Of course, in considering Liberation Music’s takedown notice to Lessig there is the question why so many full performances of this song remain available on the Internet while Liberation Music decided to 
demand a take-down of Lessig’s keynote address at a conference in South Korea. Lessig only played parts of this song, while many examples of the full performance can easily be found on Youtube, seemingly untouched by a DMCA notice. This leads one to the conclusion that Liberation Music is either completely clueless or extraordinarily devious.
While it’s difficult to speculate about Liberation Music’s legal strategies, it is worth taking a quick look at the merits of Professor Lessig’s suit.
Is His Use Fair Use? I don’t think there can be a serious question that Lessig’s excerpts from several of the brat pack videos, ranging from 10 to 47 seconds of a 4 minute song, qualify as fair use. I’m sure Lessig himself concluded this before he used them in his presentations. The videos themselves are transformative, and Lessig’s use of them in his lectures is educational and noncommercial. It’s difficult to imagine that they interfered with Liberation Music’s right to profit from the song. If anything, the meme that formed around these videos increased the song’s popularity and sales. Lessig’s position on this issue appears very strong.
Did Youtube Properly Remove the Video? The Digital Millennium Copyright Act allows copyright owners to demand that an Internet service provider (such as Youtube) remove unauthorized copies of the owners’ works. Lessig posted the 2010 video on Youtube on June 8, 2013, and Liberation Music served a “take-down” notice on Youtube on June 30, 2013. Youtube took down the video and, as required by the DMCA, Youtube provided Professor Lessig with notification of this action. Lessig then took the next step permitted by the DMCA — he submitted a counter-notice contesting the claim of infringement. Under the DMCA, Liberation Music then had 14 days to file suit against Professor Lessig. If it failed to do so, Youtube was required to restore access to the contested work.
To show it was paying attention, five days after Lessig sent his counter-notice Liberation Music sent Lessig an email threatening to sue him. Two days later Lessig retracted his counter-designation, in effect folding his hand against what may have been a bluff by Liberation Music. The video remains down, and properly so under the DMCA. Youtube reportedly receives millions of take-down notices a week, and its take-down procedure is largely mechanical. It’s not reasonable to expect Youtube to judge whether or not a work falls within the copyright fair use doctrine.
Why Did Professor Lessig Retract His Counter-Designation? Why indeed? Why didn’t Lessig let Liberation Music sue him under the DMCA, as they threatened to do? Why did he retract his counter-designation and then, almost two months later, file an action for “declaratory relief,” asking the court to “declare” that his use of the brat pack videos was protected by fair use and that Liberation Music had served a wrongful DMCA take down notice?
While we likely will never know the answer to this question, I 
would expect Liberation Music to try to take advantage of this as a procedural matter, and argue that by side-stepping the procedures established in the DMCA, Lessig waived his right to sue Liberation Music. A quick search failed to find any authority either way on this question, but that doesn’t mean it’s a dead issue for Liberation Music. Congress constructed a precise system under the DMCA, the legislative history is extensive (and may address this issue), and Liberation Music may be able to persuade the Massachusetts federal court that Lessig’s retraction was a waiver. After all, Liberation Music may have been bluffing — it could have let the 14 day period expire, and not filed suit, in which case the work would have been restored on Youtube and a lawsuit avoided. By withdrawing his counter-designation Lessig seemingly forced a lawsuit that Liberation Music may never have intended to pursue.
By the way, fans of Phoenix shouldn’t assume that the band is calling the shots on this. Maybe they are, maybe they aren’t. Like many bands, they have assigned the copyright in their songs to their publisher, and they may have no legal right, under their contract, to control their publisher’s enforcement of copyrights in their music. However, they may be really pissed-off, and making Liberation Music well aware of that fact.
Prediction: Liberation Music will settle this case quickly, and the video of Professor Lessig’s lecture will be back on Youtube before you can say “don’t make weak copyright claims against Harvard law professors.”
p.s. – can’t resist sharing this comment from Ars Technica:
“If you’re going to pick someone to try and copyright troll, don’t pick the world’s foremost public intellectual on copyright issues. It’s rather like being a street mugger and picking the 6ft 4 broad-shouldered guy with a Marine tattoo.”
Update, March 2, 2014: According to this article on the Electronic Frontier Foundation web site (the EFF co-represented Prof. Lessig), this case has settled favorably for Prof. Lessig. The EFF states that Liberation Music will pay Lessig unspecified (and confidential) damages “for the harm it caused,” and quotes Liberation Music’s press release as follows:
Liberation Music is pleased to amicably resolve its dispute with Professor Lessig. Liberation Music agrees that Professor Lessig’s use of the Phoenix song ‘Lisztomania’ was both fair use under US law and fair dealing under Australian law. Liberation Music will amend its copyright and YouTube policy to ensure that mistakes like this will not happen again.
This outcome was pre-ordained, but if Liberation Music’s takedown notice was a “mistake,” why did it take over six month to resolve the case?
by Lee Gesmer | Aug 13, 2013 | Copyright
“The phone, the laptop and the tablet have advanced so dramatically. Television has been drastically left behind.” – Tom Rogers, CEO of TiVo, Inc., Wall Street Journal, July 30, 2013
_________________
First music, then books, now television. Music and book publishers have suffered well-publicized headwinds (some would say hurricane gales) at the hands of the Internet economy, and now 2013 is the year the TV and cable industries are beginning to face comparable technology-driven disruptive technologies.
Technical advances now allow people who live in New York, Boston or Atlanta to use Aereo to watch inexpensive over-the-air television on Internet-enabled devices (potentially freeing them from more expensive cable fees), and subscribers to Dish satellite TV to watch primetime network TV ad free
The broadcasters are fighting these developments in the marketplace and the courts, and the court actions have sent sparks flying in the world of copyright law.
I’ve written about the broadcasters’ ongoing legal efforts to shut down Aereo, However, the Ninth Circuit’s July 24, 2013 decision in Fox v. Dish Network adds another dimension to the TV industry’s copyright battles.*
*An important caveat in both cases is that the appellate courts were reviewing preliminary injunction decisions by district courts under a deferential standard of review. There is no certainty that the Second and Ninth Circuits will reach the same conclusion on an appeal of a final judgment in these cases.
Here are the facts in Dish.
Dish records the primetime programming of the four major network TV broadcasters – ABC, CBS, NBC and Fox. It manually inserts electronic bookmarks to mark the beginnings and ends of commercial breaks. Dish then downloads the programming to the hard drives in the set-top DVR boxes of subscribers who have pressed the button that “enables” this service.
These subscribers now have a box-top recording of the previous eight days of primetime programming, including ads. However, when they watch a show and the system encounters an electronic bookmark marking an ad the service skips to the next bookmark, “hopping” over the ads. Voilà! Dish subscribers have advertisement-free TV, “the feature viewers have been waiting for since the beginning of television.” Dish has given this ad-skipping service the name “AutoHop.”*
*The district court record suggests that an important motivation for Dish to create AutoHop may have been to compete with Internet-based programming from services such as Hulu and Hulu Plus.
Hopper Logo
If Aereo’s service – which feeds over-the-air TV programming to computers, tablets and smart-phones (ads and all) infuriated the network broadcasters, the Dish ad-skipping service – “which could destabilize the entire television eco-system” according to Moody’s – has left broadcast TV executives apoplectic. Fox filed suit for copyright infringement in California, but the district court denied Fox’s motion for a preliminary injunction. In a nightmare scenario following the networks’ thus-far unsuccessful battle with Aereo in the Second Circuit, the Ninth Circuit upheld the district court, relying in significant part on the Second Circuit’s controversial Cablevision decision, the case that was central to the broadcasters’ loss in Aereo.
Based on Cablevision, the Ninth Circuit held that because Dish’s AutoHop system creates copies only in response to the customer command enabling the service, the district court did not err in concluding that Dish is not engaged in direct infringement. Even though Dish provides the service, the customer, not Dish, is “the most significant and important cause of the copy.”
In Cablevision the Second Circuit asked “whether one’s contribution to the creation of an infringing copy may be so great that it warrants holding that party directly liable for the infringement, even though another party has actually made the copy.” However, the Second Circuit never identified that point in Cablevision, and although Fox argued that Dish, as an active participant in the activity of copying, had crossed that line, neither did the Ninth Circuit in Fox v. Dish.
If Dish is not the “direct” infringer (since the subscribers, not Dish engage in the “volitional conduct” that “makes” the copies), isn’t Dish liable under the theory of secondary liability?* After all, Dish puts the DVR devices in the hands of their subscribers, ready to use (with no options or vatiations), and shows them how to push the button that feeds the copies to them.
* One form of secondary liability under copyright law is to intentionally induce or encourage direct infringement. This theory of liability was not asserted in either Cablevision or Aereo. In Cablevision, the cable company “expressly disavowed” secondary liability as a theory of liability.
In response to this argument Dish fell back on the Supreme Court’s famous 1984 decision in Sony v. Universal (better known as the “Betamax case)”, and argued that copying by subscribers was fair use under that case.* However, the most important factor in fair use analysis is the harm to the market value of the copyrighted work, and in this case (unlike Sony) AutoHop clearly has an impact on the value of Fox’s TV shows, since they are supported by advertising revenues which are likely to shrink if people are skipping Fox’s paid advertising.
* Although there was evidence in Sony that 25% of Betamax users fast-forwarded though commercials, the Supreme Court in Sony never squarely decided whether commercial-skipping was fair use (as compared with time-shifting, which the Supreme Court held was fair use).
The Ninth Circuit attempted to side-step this argument by Fox by noting that Fox does not own the copyright to the ads, only the programming. Therefore, the Ninth Circuit concluded, “any analysis of the market harm should exclude consideration of AutoHop because ad-skipping does not implicate Fox’s copyright interests.” However, this conclusion seems to ignore the fact that Dish subscribers are copying Fox’s programming as well as its advertising, and therefore Fox’s copyright interests are implicated. Perhaps a copyright suit by an advertiser would have a better chance of establishing copyright infringement before the Ninth Circuit, and I suspect that Fox (or one of the other broadcasters) is considering the pros and cons of this strategy.
On August 7th Fox filed an impassioned Petition for Rehearing and Rehearing En Banc, pointing out a number of flaws in the Ninth Circuit panel’s reasoning and legal analysis. The Ninth Circuit is more amenable to en banc review than the Second Circuit (where en banc review is rare, and where it was denied in Aereo), and therefore Fox’s quest for a preliminary injunction is not necessarily over in the Ninth Circuit. And, if the panel decision is held to be the law in the Ninth Circuit after final judgment, the issues are so important that the case should be a good candidate for Supreme Court review.
It’s also worth keeping in mind the fact that Dish, like Aereo, is playing with fire. If Dish is found to have infringed Fox’s copyrights after final judgment in district court or on appeal, the damages could be significant, given the large number of copyrighted shows at issue and the potential for statutory damages of as much as $150,000 per infringement.*
*The district court and the Ninth Circuit suggested that Dish may be liable for copies it made for “quality control,” but that seems to be little more than a monetary footnote in the context of this case. And, it appears that Dish has stopped this practice. In addition, Fox has asserted a breach of contract claim against Dish. Based on the Ninth Circuit decision, this may turn out to be a better claim for Dish than its claim of copyright infringement.
by Lee Gesmer | Aug 6, 2013 | Copyright
An unusual copyright suit recently filed in federal court in Boston is worth a brief comment.
Here are the facts.
In July 2012 someone wrote an offensive, defamatory “complaint” about a Boston attorney on the website Ripoff Report. Because a federal statute (47 USC § 230) protects Ripoff Report from liability for defamatory user generated content (“UGC”), the lawyer could not force Ripoff Report to remove the defamation from the site.* However, he came up with a clever (but, as we shall see, probably ineffective) work-around.
*Ripoff Report does not voluntarily take down UGC.
The lawyer sued the original poster for defamation in Massachusetts superior court, and obtained a default judgment. As part of the relief he was assigned the copyright in the defamatory posting (or, power of attorney giving him the right to assign copyright ownership to himself). He then demanded that Ripoff Report take down the copyrighted material. Ripoff Report refused, and the lawyer has now sued Ripoff Report in federal court in Boston for copyright infringement.
Setting aside the question of whether transferring copyright ownership of defamatory material is a proper remedy for defamation (this implicates First Amendment issues), and whether the defamation at issue is even entitled to copyright protection (it is very brief and non-creative), can the lawyer use this strategy to obtain removal of the defamation from Ripoff Report?*
*More precisely, can the threat of damages for copyright infringement compel Ripoff Report to take down the defamation?
At first blush the attorney’s copyright suit against Ripoff Report faces two significant problems: first, whether the Massachusetts state court had the legal authority to transfer the copyright to him, and second, whether the original author granted rights to Ripoff Report that trump any rights the state court could give to the lawyer.
Let’s take these in reverse order. Paragraph 6 of the Ripoff Report’s terms of service state: “by posting information or content to any public area of www.RipoffReport.com, you automatically grant, and you represent and warrant that you have the right to grant, to [Ripoff Report ] an irrevocable, perpetual, fully-paid, worldwide exclusive license to use, copy, perform, display and distribute such information and content ….” In order to post on Ripoff Report a user must register on the site and agree to be bound by a clickwrap agreement that includes these TOS.
Can an assignment (whether by the court or even the original author) deprive Ripoff Report of this license? Clearly not. Ripoff Report, not the original poster, owns the copyright in this content. (See, e.g., Davis v. Blige, 2nd Cir. 2007 (“exclusive license … conveys an ownership interest”).
The fact that Ripoff Report owns the copyright should end the matter right there. The Massachusetts court had no authority to transfer ownership in a copyright that was not even owned by the defaulting defendant. However, there is the further question of whether the Massachusetts state court had the authority to transfer ownership to the attorney, even if the defendant had still owned the copyright. The copyright statute provides that “when an individual author’s ownership of a copyright, … has not previously been transferred voluntarily by that individual author, no action by any governmental body … purporting to … transfer, or exercise rights of ownership with respect to the copyright … shall be given effect except as provided under title 11.”
Title 11 is the federal bankruptcy statute. Bankruptcy was not implicated in this case, and in any event the bankruptcy laws are administered by the federal bankruptcy courts, not the state courts. Thus, the state court did not have the authority to transfer any rights of ownership in the defamatory material, and therefore any rights the attorney could have acquired by reason of the court order are of no legal effect. Because the attorney does not hold the copyright he has no valid copyright claim against Ripoff Report, and the case should be dismissed.
[Note: I have not provided the name of the attorney or the case, or a link to any pleadings, because I am hoping to spare the attorney involved any further discomfort arising from the Streisland Effect.]
by Lee Gesmer | Aug 1, 2013 | Copyright
Copyright registration requirements can get quirky, and if they aren’t handled properly can result in dismissal of a copyright infringement case (valid registration being a requirement before an infringement case can be filed). An invalid or defective registration can deep-six a copyright plaintiff’s suit on a technicality.
The Fourth Circuit addressed a number of issues associated with copyright registration in Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc. (July 17, 2013), one of which is whether the requirement that assignment of a copyright be in writing (17 U.S.C. § 204) may be satisfied by an electronic signature under E-Sign, 15 U.S.C. § 7001.
In what appears to be the first appellate decision on the question of whether E-Sign applies to the copyright statute’s signed writing requirement, the Fourth Circuit held that it does, and that the e-signature at issue in this case (a click-wrap agreement), was a valid assignment:
The issue we must yet resolve is whether a subscriber, who “clicks yes” in response to MRIS’s electronic TOU prior to uploading copyrighted photographs, has signed a written transfer of the exclusive rights of copyright ownership in those photographs consistent with Section 204(a) [of the Copyright Act]. Although the Copyright Act itself does not contain a definition of a writing or a signature, much less address our specific inquiry, Congress has provided clear guidance on this point elsewhere, in the E-Sign Act.
The E-Sign Act, aiming to bring uniformity to patchwork state legislation governing electronic signatures and records, mandates that no signature be denied legal effect simply because it is in electronic form. … Additionally, “a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.” The E-Sign Act in turn defines “electronic signature” as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.”
Although the E-Sign Act states several explicit limitations, none apply here. The Act provides that it “does not . . . limit, alter, or otherwise affect any requirement imposed by a statute, regulation, or rule of law . . . other than a requirement that contracts or other records be written, signed, or in nonelectric form[.]” … Because Section 204(a) requires transfers be “written” and “signed,” a plain reading of Section 7001(b) indicates that Congress intended the provisions of the E-Sign Act to “limit, alter, or otherwise affect” Section 204(a).
While the court’s ruling on E-Sign is significant (if for no other reason than that it is the first clear appellate ruling on this issue since the federal law was enacted in 2000), this case is important in other respects as well. The court held that websites (in this case an MLS service) can acquire exclusive copyright ownership from users using clickthrough agreements, and addressed the registration requirement for collective works.
Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc. (July 17, 2013)
by Lee Gesmer | Jul 22, 2013 | Copyright, What Were They Thinking
“It was as though she realised for the first time that you – everyone – must, or anyway may have to, pay for your past; the past is something like a promissory note with a trick clause in it which, as long as nothing goes wrong, can be manumitted in an orderly manner, but which fate or luck or chance, can foreclose on you without warning.” Requiem for a Nun, William Faulkner
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For many years the Estate of James Joyce was infamous for its use of copyright law to restrict what many people considered fair uses of Joyce’s works. Now that most of Joyce’s works are in the public domain, it seems that the owner of William Faulkner’s copyrights, Faulkner Literary Rights LLC (“Faulkner”, is stepping up to take its place. But in the “Midnight in Paris” case you’ve gotta wonder: what the heck was Faulkner thinking?
Even many people who have never read a word of William Faulkner will recognize these famous lines: “the past is never dead. It’s not even past.” These words are spoken by the fictional County attorney Gavin Stevens in Faulkner’s novel Requiem of a Nun.
The production of a Hollywood movie oftenrequires the producer to obtain many copyright permissions. However, when Woody Alan’s Midnight in Paris was released in 2011, one of the characters paraphrased these lines from Faulkner. When the protagonist, Gil (played by Owen Wilson) accuses his wife, Inez (played by Rachel McAdams) of having an affair she asks him where he got that idea. He responds that he got the idea from Hemingway, Fitzgerald, Gertrude Stein and Salvador Dali, a response that Inez ridicules because they are all dead. In response, Gil quotes Faulkner: “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.”
The producers of Midnight in Paris may have tried and been denied the right to use these words, or they may not have tried at all, concluding that the use was too minimal, and too transformative, to require a license. Regardless, after the movie appeared Faulkner sued Sony Pictures Classics Inc. in federal court in Mississippi alleging, among other things, copyright infringement. On July 18, 2013 the case was dismissed based on the fair use doctrine. Faulkner Literary Rights LLC v. Sony Pictures Classics Inc.
The federal judge who drew this case, Judge Michael P. Mills,* did his level best to address the Faulkner estate’s case with a straight face, and wrote an opinion that would do any college English major proud. However, he gave himself away when he commented, “how Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration is beyond this court’s comprehension.”
*Judge Mills is a graduate of the University of Mississippi and has lived in Mississippi for more than 30 years, although there’s no reason to think he’s ever visited Yoknapatawpha County.
Predictably to everyone except Faulkner, Judge Mills found the movie’s use of the quote highly transformative, a key factor in determining whether a copy qualifies as fair use. The heart of the court’s decision is captured in this quote:
The speaker, time, place, and purpose of the quote in these two works are diametrically dissimilar. Here, a weighty and somber admonition in a serious piece of literature set in the Deep South has been lifted to present day Paris, where a disgruntled fiancé, Gil, uses the phrase to bolster his cited precedent (that of Hemingway and Fitzgerald) in a comedic domestic argument with Inez. Moreover, the assertion that the past is not dead also bears literal meaning in Gil’s life, in which he transports to the 1920’s during the year 2011. It should go without saying that this use is highly distinguishable from an attorney imploring someone to accept responsibility for her past, a past which, to some extent, inculpates her for the death of her child. Characters in both works use the quote for antithetical purposes of persuasion. On one hand is a serious attempt to save someone from the death penalty, and on the other is a fiancé trying to get a leg up in a fleeting domestic dispute. The use of these nine words in Midnight undoubtedly adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.
In addition to its claim of copyright infringement, Faulkner alleged 
violation of the Lanham Act. Faulkner claimed that the film would “deceive or confuse viewers as to a perceived affiliation, connection or association between William Faulkner and his works on the one hand, and Sony, on the other hand.” The proposition that the use of this Faulkner quote in Woody Alan’s movie would confuse viewers as to a perceived affiliation between Faulkner and Sony is, if not an insult to the intelligence of Americans, certainly an insult to the New Yorker(ish) fans of Woody Alan. The judge denied this claim out of hand.
What was Faulkner thinking when it filed this case?
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Bonus content 1 – Letter in which William Faulkner quite his job with the U.S. Postal Service:
October, 1924
As long as I live under the capitalistic system, I expect to have my life influenced by the demands of moneyed people. But I will be damned if I propose to be at the beck and call of every itinerant scoundrel who has two cents to invest in a postage stamp.
This, sir, is my resignation.
(Signed by Faulkner)
Bonus content 2 – A couple of days after this post was published the Wall Street Journal published an extensive article on Faulkner’s attempts to capitalize on William Faulkner’s estate, including an unsuccessful attempt to sell Faulkner’s 1949 Nobel Prize medallion. The article discusses similar efforts by the estates of Hemingway, Fitzgerald, Joyce and Nabokov.
by Lee Gesmer | Jul 12, 2013 | Copyright
Why did a Boston affiliate of ABC file suit a major copyright infringement action against Aereo in Boston, rather than ABC itself? Or another major broadcaster, such as CBS, NBC or Fox?
On May 15th, in a post titled “Does Second Circuit Decision Determine Copyright Legality of Aereo “Antenna-Farm” System Nationwide?”, I discussed the fact that Aereo had filed a preemptive suit in the Southern District of New York. The suit asked the federal district court to enjoin the major broadcasters (ABC, NBC, CBS, Fox) from filing what Aereo called “duplicative-follow-on suits” or “do-overs.” Aereo was attempting to prevent the broadcasters from following it around the country and filing a new copyright infringement lawsuit in each circuit in which Aereo launched its service. Aereo argued that the opinion of the Second Circuit Court of Appeals in WNET v. Aereo, holding that Aereo’s retransmission of over-the-air broadcasts do not violate broadcaster copyrights, was binding nationwide on the plaintiffs in that case.
However, as I pointed out in May, even if that legal argument were to be successful, at best it would only be binding on the plaintiffs in that case. For example, while ABC was a plaintiff in New York and could, conceivably, be bound nationwide by the Second Circuit decision, Aereo could not stop a non–party, such as a local affiliate, from bringing suit in another district.
In fact, that is precisely the strategy the broadcasters have followed in Boston, the second market in which Aereo has released its service. The sole plaintiff in the Boston case is a local ABC affiliate station, WCVB–TV. The complaint emphasizes WCVB’s copyright rights in its original, local programming (Chronicle, CityLine, news and weather), shows in which WCVB, not ABC, owns the copyrights.
Now you know why a local affiliate sued Aereo in Boston.
(For the first post in a four-part series on the Aereo cases, click here).
by Lee Gesmer | Jun 26, 2013 | Copyright
The recording industry’s case against Joel Tenenbaum for downloading 30 copyrighted songs has almost certainly come to an end with yesterday’s decision upholding the jury’s copyright infringement verdict of $675,000, or $22,500 per song.
This case—one of only two out of tens of thousands filed against downloaders to actually go to trial (the others settled or were dismissed on various technicalities)—has been through a trial, two appeals to the First Circuit and one appeal to the Supreme Court. However, it seems almost certain that the case has reached the end of the line; all that’s left to Tenenbaum is an appeal to the Supreme Court, which has already declined an appeal from him once before.
In retrospect, this case should never have taken this path. Tenenbaum could have settled for a few thousand dollars at the outset, but he chose (along with Harvard Law professor Charles Nesson, who reportedly represented him at no charge), to pursue the case on principle. The heart of his argument has been that statutory damages under the Copyright Act (which can be as great as $150,000 per infringement) violate due process because they are not tied to the actual injury caused by his downloads. The district court judge and the First Circuit didn’t buy it, in large part because (a) the copyright statute itself provides notice of the scope of the potential award, and (b) statutory copyright damages may exceed actual damages for their deterrent effect.
It didn’t help that Tenenbaum did not make a sympathetic defendant. As the First Circuit noted, he “carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behavior was exactly what Congress was trying to deter when it amended the Copyright Act.”
Of course, the RIAA also pursued the case on principle. According to press reports Tenenbaum is not wealthy, and he will be unable to satisfy a judgment of this magnitude (which will likely be even larger with pre- and post-judgment interest). As a practical matter his only option will be to file bankruptcy.
Sony BMG Music Entertainment v. Tenenbaum (June 25, 2013).
by Lee Gesmer | Jun 21, 2013 | Copyright
“Streaming copyrighted works without permission would drastically change the industry, to plaintiffs’ detriment. . . . The strength of [broadcasters’] negotiating platform and business model would decline. The quantity and quality of efforts put into creating television programming, retransmission and advertising revenues, distribution models and schedules — all would be adversely affected. These harms would extend to other copyright holders of television programming. Continued live retransmissions of copyrighted television programming over the Internet without consent would thus threaten to destabilize the entire industry.” – Second Circuit in WPIX, Inc. v. ivi, Inc. (2012)
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This is the last in this four-part series of posts. Click here to access Part 3.
Did the Second Circuit make a mistake in Cablevision and compound it by its decision in Aereo? What are the potential business, legal and legislative strategies available to the broadcast companies as Aereo continues its 22 city rollout? These are the questions I’ll discuss in this last of a four post series on the Aereo case.
Did the Second Circuit Misapply the Copyright Statute in Cablevision and Aereo?
The holdings in Cablevision and Aereo have been controversial in the copyright law community. Few observers doubt that there is a significant risk that courts outside the Second Circuit, including the Supreme Court, will knock out the key leg of Cablevision’s three-legged stool*: the holding that the retransmission of broadcast signals are not a public performance where each user receives its transmission from an individualized copy. As noted in post 3 of this series of posts, one federal court has already taken this step in California. Fox Television Stations v. BarryDriller (C.D. Cal. Dec. 27, 2012)
*The other two legs, which were not the basis for the broadcasters’ legal challenge in Aereo, are the holdings in Cablevision that (1) a transitory RAM buffer does not constitute an infringing copy; and (2) it is subscribers, not Cablevision, that exercise the “volitional conduct” that causes copies to be made on Cablevision’s system.
As discussed in post 2, the Copyright Act gives copyright owners the exclusive right “to perform the copyrighted work publicly.” The central question that courts outside the Second Circuit will have to answer is whether the Second Circuit correctly interpreted the Copyright Act’s confusingly drafted transmit clause:
To perform or display a work “publicly” means—
to transmit or otherwise communicate a performance or display of the work … to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. (Copyright Act, § 101).
The Second Circuit’s decisions in Cablevision and Aereo hold that the word highlighted above—“it”—does not refer to the performance of the underlying work, but the transmission of the work. In effect, the Second Circuit reads the statute to define a public performance to require that the public be “capable of receiving the transmission,” rather than the performance. They hold that if only one person is capable of receiving an individualized transmission (as is the case with both the Cablevision and Aereo systems), there is no violation of the copyright holder’s exclusive right to perform the work.
However, there is wide disagreement with this interpretation of the law, which converts a transmission to thousands of members of the public 
from “public” to “non-public” by making thousands of copies of the underlying performance and transmitting separate copies to each member of the public. This doctrine is based on a loophole that, arguably, is not a valid construction of the statute and was never intended by Congress.
As the district court noted in BarryDriller, “the concern is with the performance of the copyrighted work, irrespective of which copy of the work the transmission is made from. Very few people gather around their oscilloscopes to admire the sinusoidal waves of a television broadcast transmission.” Put another way, the question is whether all copies of a performance embody the same performance, or whether each copy of a performance is its own distinct performance. In the first case Aereo was incorrectly decided, in the second case it was not.
In the Aereo decision itself Judge Chin’s powerful dissent took a different approach in arguing that Aereo’s system—which he described as a “sham” and an “over-engineered … attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law”—falls squarely within the definition of a public performance. Judge Chin argued that it is legally irrelevant, under the statutory definition, that Aereo uses an intervening process, in the form of individual antennas and multiple copies, before sending multiple transmissions to the public. His argument on statutory construction is simple:
1. To “transmit” a “performance” is “to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” (Copyright Act, § 101).
2. The terms “device” or “process” are broadly defined as “one now known or later developed.” (Copyright Act, § 101).
3. Aereo’s system of antennas and individual stored copies is a “device or process,” and using that device or process Aereo “transmits or otherwise communicates” copyrighted images to its subscribers. (Copyright Act, § 101).
Judge Chin argued that this statutory construction is also supported by the legislative history of the law and prior court opinions. Although he argued that Cablevision was wrongly decided (recall that Judge Chin was the district court judge in that case, and he found that Cablevision’s network-DVR did infringe the public performance right before being reversed by the Second Circuit), he also distinguished Aereo from Cablevision on various grounds, including the fact that Cablevision had a license to transmit the works that were saved on its network-DVR system, whereas Aereo had no license to the works it was taking from the airwaves and transmitting to its customers.
Judge Chin’s dissenting opinion could serve as the roadmap for the broadcasters in other circuits, or in an appeal to the Supreme Court. In fact, it’s argument could serve as the basis for a Supreme Court opinion reversing Aereo.
The Broadcasters: What Should They Do Now?
To say that the broadcasters are facing complicated strategic decisions in this case is an understatement. It goes almost without saying that they can lobby Congress to amend the law in such a way as to bring Aereo’s system within the definition of a public performance. However, amendments to the copyright statute, which underwent its last major rewrite in 1976, are few and far between.
They can also respond, as Fox has threatened to do, by cutting over-the-air transmissions altogether, so Aereo cannot obtain their programming. However, this threat seems like a bluff, since 
it would reduce their viewership and cut their advertising revenues, which are not affected by retransmissions by Aereo. As Holman Jenkins quipped in the Wall Street Journal, Fox’s threat to yank its signal from the air brings to mind the old joke about the hostage taker who puts a gun to his own head and says, “One false move and the idiot gets it.”
In addition, it likely will be a long time before Aereo’s service (or copycat services) will cut into the level of existing cable service, or grow to the point where an appreciable number of cable subscribers would “cut the cord” and impact the retransmission fees broadcasters are receiving from cable companies.*
* Nevertheless, skirmishing on this front has already begun with Senator John McCain’s bill that would penalize a broadcaster that withdrew its signal from the public airwaves.
Despite these practicalities, the broadcast industry is trying to stop this extension of the Cablevision case before it mutates into something that the broadcasters may not be able to anticipate today. After all, no one was predicting the Aereo system when Cablevision was decided in 2008. That case cost the broadcast industry nothing since, unlike Aereo, the beneficiaries were already cable subscribers, and the network-DVR did nothing more than move the DVR from the set-top to the Cablevision server head-end. Who is to say what new technology lies around the next turn in the technological bend that may be impossible to predict today but which, in hindsight, may be facilitated by Aereo? The broadcasters may conclude that their best strategy is to take legal action against every challenge to their traditional structure; even if Aereo is a minor economic irritant today, they should fight Aereo today, in order to head off unforeseeable future threats to their business models.
As far as the broadcasters’ specific legal strategy goes, it is clear that the broadcast industry’s best hope is to have the Second Circuit decision in 
Aereo reach the Supreme Court. As discussed above, there is a reasonable likelihood that the Supreme Court will reverse the Second Circuit’s decision in Aereo and put a stop to this particular problem well before it grows to a size that will threaten broadcast retransmission revenues.* Unfortunately for the broadcasters, the BarryDriller case has caused them to lose control of that strategy. While a Ninth Circuit decision upholding the district court’s injunction on an Aereo-like system may lead to the circuit split they need to obtain a Supreme Court appeal, they cannot control the legal positions taken in that case necessary to prepare the groundwork for a Supreme Court appeal. And, at least for now, they cannot offer the Aereo service in California.
*Coincidentally, Supreme Court Justice Ruth Bader Ginsburg’s daughter, Columbia Law School Professor Jane Ginsburg, has been one of the most outspoken critics of Cablevision and Aereo. Of Aereo Professor Ginsburg commented that the decision, which was issued on April 1, 2013, is “so inconsistent with statutory text and policy as to inspire surmise that that the ruling was an April Fool’s prank.” (See Aereo: The Second Circuit Persists in Poor (Cable)Vision). While it’s unlikely Justice Ginsburg would recuse herself for this reason, Justice Kagan may not participate in the case — she was the U.S. Solicitor General when Cablevision filed a Supreme Court appeal in that case, and the government opposed Supreme Court review.
The fact that the broadcasters have not filed suit in federal court in Massachusetts (Aereo’s second market, which went live in mid-May), is telling. The broadcasters’ strategy may be to wait and see whether the Second Circuit will grant their pending petition to review Aereo en banc. If it does, the broadcasters may hold off on litigation in other states pending the en banc ruling from the Second Circuit. If the Second Circuit doesn’t hear Aereo en banc, or if it hears it and upholds the panel decision validating Aereo, the broadcasters will likely watch Aereo as it releases its service across the country (keeping in mind that Aereo has stated it will go live in 22 cities this year). The broadcasters are likely to decide (based on legal precedent) that one of those circuits presents the best chance for a decision favorable to the broadcasters. Such a decision will set up the circuit split that would make the case attractive to the Supreme Court which, the broadcasters hope, will resolve the thorny issues that have arisen out of the copyright statute’s problematic definition of a public performance.
Another alternative is that the broadcasters will allow the BarryDriller case to move forward to the Ninth Circuit and see whether the Ninth Circuit upholds the district court decision in that case, again providing a circuit split. However, as noted, that option has risks, since the broadcasters cannot control BarryDriller’s legal strategy in that case, and therefore can’t be sure a decision by the Ninth Circuit will create the greatest likelihood of a circuit split that will make the case attractive to the Supreme Court.
To make things even more complicated, Aereo has itself gone on the offensive, filing a suit in New York asking the federal district court to enjoin CBS 
from bringing another copyright suit against Aereo in any other federal district. (See my earlier post on this case here). While, if successful, this would only affect CBS, it could be expanded to include other plaintiffs in the New York case, leaving the broadcasters only with affiliates to prosecute cases against Aereo in other districts. While the extent to which Aereo’s bold strategy (if it succeeds) will hobble the broadcasters’ legal offensive is uncertain, it may weaken the broadcasters’ attempt to sue Aereo in another district and obtain a precedent which, when set against the Second Circuit decision, will create a circuit split and lead to a successful Supreme Court appeal. Clearly, Aereo’s strategy seems intended to force the broadcasters to rely on BarryDriller and the Ninth Circuit to accomplish that.
If the “TV wars” sound complicated, it’s because they are. And, to use a military analogy, the Aereo campaign is only one front in a multi-front war that is in full swing as television migrates to the Internet. There is much, much more to come. Stay tuned.
